Ms S Hargreaves v Greater Manchester Combined Authority: 2400729/2024

EMPLOYMENT TRIBUNALS

Case No 2400729/2024

Between

Ms S HargreavesClaimant

Greater Manchester Combined AuthorityRespondent

Before

Employment Judge Eeley

Ms A Gumbs (instructed by counsel) for claimant

Ms A Rollings (instructed by counsel) for respondent

Date 12 June 2026

JUDGMENT

[1]The complaint of unfavourable treatment because of something arising in consequence of disability is well-founded and succeeds.

[2]The claim of breach of duty to make reasonable adjustments is partially upheld. The respondent breached a duty to make reasonable adjustments in relation to:a. Keeping meetings with the claimant to a reasonable length.

b. Reducing the frequency of weekly telephone calls.

c. Failing to pay for the claimant’s private counselling.

d. Failing to address the claimant’s allegation of bullying in a timely manner.

e. Failing to implement the occupational health report recommendations in a timely manner to address the stressors affecting the claimant.

f. Failing to address the claimant’s stressors in her email dated 5 February 2023 in a timely manner. The remainder of the claimant’s complaints of a breach of the duty to make reasonable adjustments are not well-founded and are dismissed.

[3]The complaint of harassment related to disability is well-founded and succeeds.

[4]The complaint of victimisation is well-founded and succeeds.

[5]The complaint of direct sex discrimination is partially well founded and succeeds in relation to the respondent making the referral to Occupational Health for the claimant late, and in breach of the timeframes in its own policies and procedures. The remainder of the complaint does not succeed.

[6]The complaint of constructive unfair dismissal is well founded and is upheld. The dismissal also amounted to discriminatory treatment.

REASONS

[1]By a claim form presented to the Tribunal on 2 February 2024 the claimant pursued claims of unfair dismissal, disability discrimination, and sex discrimination. There was a period of ACAS conciliation between 27 November 2023 and 8 January 2024. Following a number of preliminary hearings the claimant presented amended Particulars of Claim.

[2]The claimant claimed unfair constructive dismissal. The claimant’s disability, for the purposes of the disability discrimination complaint, was anxiety and depression. Her claims of disability discrimination were pursued under sections 15, 20 and 26 of the Equality Act 2010. The claimant also pursued a claim of victimisation pursuant to section 27 of the Equality Act. In addition, she pursued a claim of direct sex discrimination pursuant to section 13 of the Equality Act. For the purposes of her sex discrimination claim she relied on an actual comparator by the name of Gary Wilkinson.

[3]The respondent denied the claims. Further, it relied on a legitimate aim defence under section 15(1)(b) in relation to the section 15 complaint. The legitimate aim relied on was: “ensuring workplace safety, risk management, and the effective reintegration of the claimant into the working environment.”

[4]The parties had agreed a list of issues for use at the final hearing. This was located at page 123 of the final hearing bundle. This was subsequently updated as allegations at paragraphs 8.3 and 8.4 were not pursued and a further allegation had been erroneously omitted from the list. Claimant’s counsel prepared an updated and final version of the list of issues prior to the Tribunal receiving closing submissions from the parties’ representatives.

[5]In order to determine this case, the Tribunal had regard to written witness statements from the following individuals:a. Shelley Hargreaves, the claimant, employed by the respondent as a Fire Safety Officer until her resignation with effect on 9 November 2023.

b. Vicky Wight, Employee Relations Business Partner at the respondent (within the HR department).

c. Michael Hodson, Station Manager within the Protection Department at the respondent. At the relevant time he was managing the teams covering Bolton & Wigan and the team covering Bury, Oldham & Rochdale.

d. Steven Sugden (known as Alex Sugden) Station Manager - Protection Manager for the Risk Reduction Team since 1 April 2023.

e. Jennifer Seex, Head of Protection and Building Safety for the

f. Jane Wilson, Education and Professional Development Manager within the Training Department at the respondent.

g. Stephen Jordan, Group Manager in the Organisational Learning and Operational Assurance Department at the respondent.

h. Karl Gibbons, Senior Protection Manager, formerly Fire Safety Manager at the respondent.

i. Jon Hill, Fire Protection Manager (Station Manager), formerly the claimant’s line manager. Most of the above named witnesses gave oral evidence in addition to producing a witness statement. However, Jon Hill did not attend to give oral evidence. In those circumstances the Tribunal gave his evidence such weight as was appropriate given that he had not attended the hearing to give oral evidence and be cross examined.

[6]The Tribunal also had regard to what was, initially, an agreed final hearing bundle containing 942 pages. Further documents were submitted part way through the final hearing. This took the hearing bundle to a total of 967 pages. I was then presented with a supplemental bundle with a separate index which contained 113 pages. The respondent also submitted a separate bundle of its internal policy documents. “R1” was the respondent’s capability procedure. “R2” was the respondent’s attendance management procedure. “R3” was the respondent’s manager guidance for attendance management.

[7]I read those documents within the various bundles to which I was referred by the parties. I was grateful for the written and oral closing submissions on behalf of both parties, together with a draft chronology and brief cast list.

[8]The final hearing was initially listed to conclude within 4 days. It was immediately apparent, upon starting the hearing, that this listing was not sufficient. In addition, further witnesses were called in response to a clarification of the allegations in the case. Whilst the respondent was content to postpone the hearing entirely, the claimant was eager to make a start on the final hearing and conclude it at a later date, if required, given the costs that she had incurred in relation to legal representation. I was persuaded to start the hearing and re-list the case for further hearing dates when convenient. Hence, the case was re-listed for two further tranches of hearing time in order to accommodate the availability of all participants. I had hoped to have sufficient time to deliberate and give an oral decision and reasons at the conclusion of the third tranche of hearing dates but, unfortunately, this did not prove practicable. Consequently, this is a reserved judgement and reasons following further days of deliberation in Chambers.

[9]At the start of the final hearing it was proposed that I should rule on an application for privacy orders/restricted reporting orders. In the end, the claimant decided not to pursue this further and so no decision was made in relation to a rule 49 application.

[10]The respondent conceded that the claimant met the definition for disability during the relevant period for the purposes of her disability discrimination claim. The matter of the respondent’s actual or constructive knowledge of the disability at the relevant times was still in dispute. The respondent conceded knowledge of the disability as of 21 February 2023, when the recorded reason for absence on the claimant’s fit notes changed. Prior to that date the respondent maintained that it did not know (and could not reasonably be expected to know) of the claimant’s disability.

The Facts

[11]The claimant’s period of continuous service started on 2 May 2002 when she worked for Rochdale Council. The claimant had suffered from depression and anxiety several years prior to her engagement as a Fire Safety Officer. In particular, she had had episodes of mental ill-health in 2010 and 2001.

[12]On 21 March 2014, the claimant was subject to a pre-employment assessment before she took up her position as a Business Safety Adviser. The written record of the assessment indicates that the claimant had a history of previous psychological ill-health which was reactive in nature in 2001 and 2010. The report records that she was given appropriate medication and counselling each time, with good effect, and had not required any treatment for over three years at the time of the assessment. At the time of the assessment, she had no current symptoms and was recorded as being aware of when she needed to seek medical support, if required. Crucially, she was assessed as fit for the role of Business Fire Safety Adviser and did not require any adjustments for that role. A general DSE risk assessment was advised.

[13]There was no ‘box’ or space on the pre-employment assessment for the individual assessing the claimant to comment on whether she was disabled within the meaning of the Equality Act. It appears that the question was not asked and, therefore, was not answered in the pre-employment assessment.

[14]The claimant started work for the respondent as a Business Fire Safety Adviser on 15 April 2014.

[15]At some point in 2016, a record was created on the respondent’s HR system which recorded the claimant as disabled. The claimant had self-reported herself under the category “disability.” The record contained no details of the nature, duration, or severity of the disability. I am satisfied that, day-today, managers may well not have seen that record, although it is likely to have been available to members of the HR team should they have looked for it. Vicky Wight was questioned about this document and confirmed that it was stored as part of the respondent’s Equality, Diversity, and Inclusion data collection. She commented that employees were sent a questionnaire to complete as part of a data capture exercise. The record shows that the claimant ticked the box for disability out of the various options on the form. Ms Wight confirmed that this was for EDI recording only and that management would not have sight of this information. It would have been stored on the respondent’s ITrent system under the sensitive data category. Whilst the individual’s line manager would have general access to ITrent, they would not necessarily have access to that portion of the records. The mere existence of this record would not, therefore, trigger conversations between managers and employees. Thus, Mr Hodson confirmed that he was not aware that the claimant had been recorded by the organisation as being a disabled employee. He also maintained that he could not access the claimant’s previous sickness records, only those which related to the period starting when he took over line management of the claimant.

[16]The claimant became a Fire Safety Inspection Officer on or about 22 August 2017. Towards the end of 2018 the claimant was being line managed by Jon Hill. She says that she made a complaint to him about colleague by the name of Gary Baxter and his use of foul language in the office. She presented this to the Tribunal as being a complaint about bullying, although it was not clear that she made such an assertion to the respondent at the time. Nevertheless, Mr Hill was informed of the problem and asked the claimant if she wanted to raise a formal grievance or have it dealt with informally. Mr Hill’s witness statement confirms that he spoke to Mr Baxter about the complaint and asked him to amend his behaviour in the office. Mr Hill was unaware of any further complaints from the claimant about Mr Baxter. By contrast, the claimant says that as a result of Mr Baxter’s “bullying” behaviour, she was diagnosed with depression and given medication.

[17]In any event, at some point in 2019 the claimant did have cause to speak to Mr Hill about Mr Baxter and the amount of alcohol that he was observed to be drinking. The worry of reporting this had caused the claimant stress and, consequently, Mr Hill referred her to Occupational Health. When the report came back from Occupational Health, dated 4 February 2019, Mr Hill concluded that there was nothing further that he needed to do as a result of the contents of that occupational health report.

[18]The occupational health report was the product of an assessment on 31 January 2019. The reason for referral was recorded as being the potential need for workplace adjustments. The claimant reported experiencing symptoms of stress and anxiety which she perceived to have been caused by the professional conduct of a colleague. She reported that she had been reluctant to report her concerns but had done so. She reported that her deliberations about discussing concerns with management caused her symptoms of anxiety, in particular reduced sleep. After discussing the symptoms with her GP, the claimant did discuss the issue with management. She reported that, since reporting her concerns to management, she perceived that the colleague had stopped speaking to her directly but did continue to use words of profanity and of an offensive nature in her presence. The claimant also reported that she was investigated for raised blood pressure in January 2019 when she had attended at A & E when experiencing chest pains. She reported that the results indicated that her blood pressure was elevated in response to stress. The report continued that the claimant felt supported by her manager and that the location of work had been considered, along with other strategies to enable her and her colleague to continue working in the same team. The claimant was keen for this to happen and was open to mediation. The claimant was recorded as having self-referred to the employee assistance programme counselling service in order to support her mental health and wellbeing. In response to specific questions, the Occupational Health Advisor confirmed that the claimant was fit to work and that she was able to work in the same location as the colleague and the claimant was hopeful that mediation would promote professional attitudes in the workplace. The adviser confirmed that no modifications were required in the workplace and the adviser recommended that management meet regularly with the claimant to discuss any issues or concerns that she may have in relation to work. The claimant is recorded as having received the support of her manager to reach a resolution to the issues that she had with her colleague. No follow-up arrangements were advised.

[19]Given the contents of that report, Mr Hill felt there was nothing in the report to cause him concern as the claimant appeared to feel that she had been appropriately supported and was recorded as fit for work without the need for further modifications in the workplace. Even the reference to the claimant self-referring to the employee assistance programme did not cause concerns, given that she had been assessed as fit for work without adjustments. It seems that, if the claimant did have any ongoing concerns about Mr Baxter or her mental health at work at this point in time, she did not make them clear to her line manager at this time. The occupational health report tends to suggest that there was nothing that management had to do to proactively support the claimant (over and above the steps already taken.)

[20]Once again, the Occupational Health Advisor was not asked (as part of this referral) whether the claimant met the definition of disability within the meaning of the Equality Act. Consequently, the advisor did not give an opinion on the matter. In the course of oral evidence, it became apparent that Mr Hodson did not think that he had had access to this particular occupational health report and had not seen it before these tribunal proceedings. He was not aware of its recommendations. Likewise, Mr Gibbons confirmed that he was not aware of the report or its contents when he took over line management of the claimant. I accept, in the absence of evidence to the contrary, that this is correct. Line managers did not automatically have access to previous occupational health reports which pre-dated the period during which they were line managing the individual employee. Unless they were alerted to the presence of the report and/or the need to consult an earlier occupational health report, they would have no reason to go looking for the document or to become aware of the contents of previous occupational health consultations. The previous reports were available to the respondent as an organisation (probably through HR) but not to subsequent line managers, unless they had cause to ask for access to previous occupational health records for a particular employee. Access could be granted upon request.

[21]The respondent’s position, broadly speaking, is that there was nothing at this stage of the chronology to alert the respondent to the possibility that the claimant was disabled. She was signed off as fit to work without modifications. Whilst this was, in fact, a recurrence of an earlier mental health condition, there was nothing on the face of the documentation to make that clear. Only an individual with access to all of the prior records would be able to see any pattern of symptoms emerging. Other than that, they would have to rely on the claimant to alert them to the fact that she considered herself to be disabled or that she had an ongoing mental health condition. Ms Wight suggested that any relevant background information that a manager might need to know would be summarised in the “background” section of any subsequent occupational health report. It was her position that managers did not need automatic access to previous occupational health reports as they would still glean the relevant background information from the introductory paragraphs of the report which they received after making an occupational health referral. However, this may not have been the case universally. It would depend on the specific contents of any given occupational health report and how much detail was included in the background section of such a report.

[22]In short, the information was available on the respondent’s systems to the respondent as an organisation (taken as a whole). However, individuals within the organisation may only have had sight of a subset of the whole record, depending on what they asked to see.

[23]It appears that the claimant was having bi-weekly one-to-one meetings with her then line manager Mr Henshaw as of April 2019. When Mr Gibbons took over line management responsibility for the claimant he was not told that there was an agreement in place for such bi-weekly one-to-one’s.

[24]Mr Gibbons took over line management responsibility for the claimant in November 2019. He explained to the Tribunal that the Covid pandemic occurred shortly after he assumed this line management responsibility and that the pandemic formed part of the overall circumstances which provoked anxiety in the claimant. He maintained that he had done what he could to support the claimant. 2020/2021

[25]In 2020, the claimant raised a grievance on the subject of pay. This was whilst she was line managed by Mr Gibbons. The claimant says that she asserted that the grievance process and the pay dispute were causing her stress and anxiety. Mr Gibbons says that he offered to refer the claimant to Occupational Health but she declined the offer, stating that she was receiving support from her GP and counselling through the employee assistance programme instead.

[26]Mr Gibbons accepted that a grievance procedure can be a stressful experience for any individual and that the claimant may well have suffered some anxiety during the 18 month process. However, he did not accept that she had suffered a continuous 18 month period of stress and anxiety as a result of the grievance. He felt that he had supported her to the extent that he could, given that the claimant had refused an occupational health referral. The impression the claimant gave was that she considered that the support she was already receiving was preferable to that which was offered by the respondent. His understanding was that any stress or anxiety experienced by the claimant during this period was related to the grievance process rather than to any underlying mental health issue.

[27]On balance, I accept what Mr Gibbons said about this. Whilst the claimant was suffering some anxiety in relation to the grievance procedure, there would be nothing on the face of it to suggest that this was part and parcel of an underlying mental health condition. I accept that Mr Gibbons offered to refer the claimant to Occupational Health and that she declined the offer. She was entitled to do so. However, declining the referral would reasonably lead the line manager to conclude that her symptoms were not having a significant impact on her day-to-day activities at work. It would give the impression that further support was not required and that the condition was not so serious as to require Occupational Health input.

[28]On 14 April 2021, the claimant sent an email to Mr Gibbons. The title of the email was “Looking forward to 15th May”. She indicated that she had received the paperwork from HR confirming a pay increment from 1 April to be paid in May 2021. This apparently resolved the pay grievance. The claimant commented, “After 15th May I can hopefully draw a line under the last 18 months of worry, stress and anxiety of the grievance and having to challenge HQ [smiley emoji] You will be glad of this too… Thanks for your help, support and patience-I do appreciate it.”

[29]However, in a further email to Mr Gibbons on 28 April, the claimant raised further complaints about pay. She referred to a further grievance which she intended to submit. She indicated that the respondent organisation was having a negative impact on her mental health and she referred to the employee assistance programme. She said that she had contacted this programme numerous times during the previous two years in relation to work-related stress, depression, and anxiety. She stated that she had contacted them again a few weeks previously in order to arrange counselling. She also indicated that she had been attempting to get an emergency GP appointment. The content of this email in isolation suggests that the claimant was experiencing significant mental health problems that required treatment and support at this time. Mr Gibbons maintained (in his evidence to the Tribunal) that he emailed the claimant back in order to try and resolve matters for her. The reference to trying to get an emergency GP appointment was, in his view, a reference to the fact that the claimant preferred to get support from her GP rather than via the respondent.

[30]On 24 May, the claimant sent a further email to Mr Gibbons on the subject of the pay increase. She referred to the fact that he chased a response from HR and that this was on their “to-do” pile. The claimant continued, “As you are aware, this situation is having a negative impact on my health and wellbeing and the delay in getting a response is making my health deteriorate further. With this in mind, I am now requesting a full response by the end of this week, Friday 28th May, that will tell me if the increment to scale point 25 will be awarded to me and backdated to 1st April 2021. I am still receiving help from EAP and my GP and have a follow up appointment with my GP this week.” Mr Gibbons took the view that the continued reference to mental health was a reference to the stress of the ongoing grievance procedure. He realised that the circumstances had created a level of anxiety, but he did not know that the claimant was anxious to the extent of being disabled by anxiety. He did not know, for example, that it was a long-standing condition. Whilst the contemporaneous documentation clearly refers to the claimant’s mental health, it does not necessarily imply that she was suffering with anxiety as a medical condition rather than the natural anxiety which might be associated with going through the grievance procedure (which was ongoing during this period). The documents are consistent with either possibility. Much would depend on the way that the claimant presented this information to the respondent at the time. Would the respondent (or an objective bystander) realise that further enquiry into the claimant’s mental health would be required in such circumstances?

[31]If the respondent had asked the claimant directly about the state of her health, I am satisfied that it is likely that the claimant would have been honest about the nature and extent of her condition. Mr Gibbons cannot recall whether he asked the claimant if her anxiety was a long-standing problem. His view was that most of his conversations with the claimant related to very specific circumstances and that the anxiety was linked to those particular subjects rather than an underlying medical condition. I am satisfied that Mr Gibbons did not have access to the occupational health records for the claimant which pre-dated his involvement as her line manager. I am not satisfied that he would have known to go looking for such documents without HR or Occupational Health input. That said, the responsibility lies with the respondent employer to organise its recordkeeping systems so that relevant or important information is readily available to managers who need to be aware of it, even if it pre-dates their period of line management.

[32]The claimant started her job as a Fire Safety Inspecting Officer on 7 May 2022.

[33]In July 2022, the claimant says that she had to leave work due to a suspected heart attack. Mr Gibbons could not recall this incident or the suspected heart attack issue. He did, however, accept that such a health scare could make a person anxious about their health.

[34]It is suggested that, at the end of August/start of September 2022, Mr Hodson became the claimant’s line manager. She says that she started to request one-to-one’s with Mr Hodson but those requests were ignored and he failed to arrange the one-to-one meetings. The contemporaneous documents would tend to suggest that Mr Hodson took over as the claimant’s line manager in October rather than September 2022. I find that his line management responsibilities for the claimant started in October 2022. This is consistent with the documents and the ongoing interaction between the claimant and Mr Gibbons in September, as set out below.

[35]The claimant says that, on 14 September 2022, she told Mr Gibbons that she was being bullied by a colleague, Ms Hoyle. This is the beginning of the bullying complaint which the claimant says was not dealt with by the respondent. Mr Gibbons confirmed that he did not recall the claimant mentioning that she felt bullied and that, if she had done so, he would have taken it seriously and would have arranged to meet her and take action under the respondent’s bullying policy. He did accept that he received an email from the claimant on 15 September about a disagreement. The text of the email was before the Tribunal. In the email the claimant stated: “As you are probably aware, the relationship between Gill and I is quite strained. I did not realise how bad it was until yesterday. Recently I was made aware that Gill took issue with comments I made at a team meeting a few months ago relating to the performance figures for Gaz and she questioned them. I said that he had managed them because he is organised and just ‘gets on with it.’ Apparently she has interpreted that as me thinking she is lazy and spoken to other people about this but not spoken to me. I was not aware of this until a few weeks ago. Since the incident at 141 Yorkshire Street our relationship has broken down completely. I thought I was professional and friendly when I saw her yesterday but she clearly does not want any conversation with me, which is fine and I am not complaining. My reason for emailing is the fact that I have to protect my own mental health. I know Gill does too. With this in mind, if Gill has not already requested this, I am asking that I do not have to work on joint visits with Gill as I feel this would have a negative impact on me. I am still happy to give feedback on ENs but I do not want to have to go to the premises with her.” In response to receiving the email, Mr Gibbons confirmed that he would catch up with the claimant about it the following week when both he and the claimant were in the workplace.

[36]A further issue arose on 22 September 2022. The claimant sent a further email to Mr Gibbons. She complained that members of the team had been looking at the numbers of audits that she was carrying out. They had remarked that she had not been hitting her target for audits. She had been asked about this and had felt that it was nobody else’s business but hers and her managers’ given that there was a good explanation for her not carrying out audits. She felt uncomfortable that team members were looking into her performance as it was none of their business. Whilst she said that she did not wish to make a big deal out of it, she still wanted Mr Gibbons to be aware of it as it was having negative impact on how she felt. She raised queries about the team’s approach and whether they were being respectful and professional.

[37]The evidence before the Tribunal suggested that Mr Gibbons addressed this issue in a team meeting and reminded all team members about the values and behaviours expected of them. He checked with the claimant whether she was satisfied with how the meeting had gone and she said that she was. After the meeting, it was agreed that, until the planned departmental restructuring took place, the claimant would work from Rochdale and Ms Hoyle would work from Bury so that they would not be working alongside each other day-to-day. Further, they would not be required to undertake audits together. It appears that, at the time, both the claimant and Ms Hoyle were content with this decision and Mr Gibbons was satisfied that the issue had been resolved informally. He did not consider that a formal process was required. He felt that it should have been possible for them to be professional and speak to each other at work, even if their relationship was not as good as it had previously been. He felt that it was possible to keep them separate, except during group meetings. However, Mr Gibbons would be present during such meetings in order to manage the situation.

[38]It was around this time that line management of the claimant was passed from Mr Gibbons to Mr Hodson. Mr Gibbons made Mr Hodson aware of the deterioration in the relationship between the claimant and Ms Hoyle and the fact that they were working at separate locations and needed to be monitored and managed. However, it does not appear that Mr Gibbons told Mr Hodson of any particular health issues experienced by the claimant.

[39]On 12 October, the claimant alleges that she told Mr Hodson about the bullying she had experienced at the hands of Ms Hoyle. However, Mr Hodson does not accept that she raised this issue at this point in time. On balance, I conclude that Mr Hodson was aware that there had been a “falling out” between the two women but that the issue had been managed by making changes to the way that they worked. He had a general level of awareness of the matter, but it was not referred to him as a ‘bullying’ issue.

[40]On 19 October, the claimant sent an email to Ms Seex. This was in response to an earlier email from Ms Seex which, amongst other things, commented on the claimant’s excellent performance in terms of the volume and quality of her work and the guidance and support that she provided to colleagues. It recognised that the claimant was sometimes the only person doing some elements of the work. She had remarked that the claimant’s performance stood out and it had not gone unnoticed. She was considered to be an asset to the team and the Department. The email referred to progressing the claimant to the role of Senior Fire Safety Inspecting Officer and noted that the claimant had not been keen to do this. Ms Seex asked the claimant to reconsider her position because in the new departmental structure the respondent needed Senior Fire Safety Inspecting Officers in every team. Ms Seex’ email was extremely positive in tone and content.

[41]The claimant’s response of 19 October appreciated Mr Seex comments. In the course of this email the claimant said, “I will reconsider progressing to senior fire safety inspecting officer once I get my health under control-at the moment I feel it would be too much for me. Thanks again for your positive comments- the timing was perfect and gave me a much needed boost.”

[42]Although the claimant’s email was primarily a response to Ms Seex, Mr Gibbons and Mr Hodson were amongst the individuals to whom it was copied. Mr Hodson accepted that he did not speak to the claimant about her health in response to this email even though her health was flagged up in the email as something which was getting in the way of her seeking promotion to a more senior role. Mr Hodson’s position was that the claimant spoke to him regularly and should have been able to raise it with him if her health was a problem. He accepted that he did not speak to her directly about her health or take a proactive approach. Rather, he left it with her to raise it with him if she felt it was necessary to do so. 43. 22 October 2022 is the date when Mr Hodson says that he took over as the claimant’s line manager albeit the correspondence trail indicates that he had received some messages from/about her prior to that date.

[44]On 21 November 2022, the claimant sent Mr Hodson an email setting out her reasons for wanting to be in the ‘Proactive Group’ rather than the ‘Reactive Group.’ Amongst her explanations, she referred to the fact that the shift pattern in the Reactive Group would have a negative impact on her mental health. Mr Hodson accepted that he did not speak to the claimant about her health in response to this email but he hoped that she would contact him to raise any issues with her health if she needed him to do something. Effectively, he placed the onus on the claimant to raise health issues so that he could address them if she did so. He did not take a proactive approach. This exchange did not provoke discussion about the claimant’s mental health or clarification about her health situation at that time.

[45]In about November 2022 Mr Hodson referred the claimant’s named comparator (Mr Wilkinson) to Occupational Health in line with the respondent’s policy. He had a musculo-skeletal condition.

[46]On 7 December 2022 there was a work event at the AJ Bell Stadium. Ms Hoyle attended the event although it took place during her sickness absence. This meant that the claimant and Ms Hoyle came face-to-face for the first time for some time. There was clearly some awkwardness and the claimant felt that she had been given the ‘cold shoulder’ by Ms Hoyle.

[47]The next day, on 8 December, the claimant sent an email requesting a oneto-one with Mr Hodson as she was “quite poorly at the moment.” In the email to Mr Hodson she stated, “would it be possible to have a one-to-one? I am quite poorly at the moment (it’s not cancer or anything like that) but I know you should be aware of it. I am fit to work but will take time off if I need to.” Mr Hodson confirmed that he would arrange a meeting with the claimant the following week. However, it appears that the meeting did not, in fact, take place. This is the point in the chronology where the claimant asserts that the relationship between the claimant and Mr Hodson had broken down as she had been asking for one-to-ones (she says) between September and December 2022 and Mr Hodson had not arranged them for her. Certainly, it appears that he had not arranged a one-to-one with the claimant since he formally took over line management responsibility for her in October 2022.

[48]The claimant suggests that during December 2022 she was mildly depressed but was not taking medication. She felt that this position was temporary. She said that the work-related anxiety was becoming overwhelming.

[49]The claimant alleges that on 13 December she told Mr Hodson about Ms Hoyle bullying her. Mr Hodson accepted that this had been raised with him on 13 December but denies that it had been raised with him on an earlier occasion in October. On balance, I conclude that whilst Mr Hodson was made aware of the difficulties in the working relationship between the two women in October (when he took over line management claimant), he was not told that this was an allegation of bullying at that stage. It was only in December 2022 (after the event at the AJ Bell Stadium) that the claimant started to talk to him in terms of an allegation of bullying.

[50]The conversation on 13 December took place during a phone call between the claimant and Mr Hodson regarding the new team structure. The claimant had indicated that she wanted to be part of the Proactive Team. She raised issues about workload with Mr Hodson and Mr Hodson told her to take it easy and not to worry about targets and expectations. The claimant raised the fact that she was unhappy with the way the issue with Ms Hoyle had been handled. Mr Hodson told the claimant that she could appeal about this but she said that she did not want to do that. She just wanted to ‘be friends with’ Ms Hoyle again. The general tone of the evidence in this case suggested that the claimant and Ms Hoyle had previously been reasonably good friends and that there was certainly some disappointment on the claimant’s part about the deterioration in the relationship between them. I find that the claimant did want to become friends with Ms Hoyle again. As a matter of day-to-day working practices, Mr Hodson thought that the issue had already been resolved, as the two women would be working from separate locations and would not have to interact on a daily basis. The only ongoing issue was that the previous level of friendship had not been restored.

[51]During the phone call, the claimant also told Mr Hodson she was unhappy that Ms Hoyle had ignored her during the meeting on 7 December. Mr Hodson’s position was that he would look into this on Ms Hoyle’s return to work. Ms Hoyle was working from home during this period whilst she underwent health investigations. Mr Hodson’s position is that there was an agreement to have a mediation session between the two women once Ms Hoyle had returned to work in person. However, before this could happen, the claimant herself went absent from work on sick leave, so the possibility of mediation never materialised. From Mr Hodson’s point of view, there was never a point in time where both of the women were back at work whilst they were under his line management so that he could facilitate the mediation between them. As the claimant did not subsequently arrive at the point of returning to work, he never had to address this with her, given that he had put it off until she was ready to return to work. Mr Hodson does not seem to have appreciated at the time that the failure to arrange a mediation might have been one of the barriers to the claimant being ready and able to return to work.

[52]Mr Hodson accepts that the claimant raised the matter of her difficulties with Ms Hoyle on this date in December because his reference to Ms Hoyle’s health can only have been made in December 2022 as Ms Hoyle did not have the relevant seizures until November. Consequently, he could not have referred to this in October. I accept this evidence.

[53]There is a dispute between the parties as to what was said by Mr Hodson. I accept that, when Mr Hodson took over line management, Ms Hoyle was not working from home, she was working from Bury and the claimant was working in Rochdale. Ms Hoyle unfortunately experienced seizures at the end of November at which point she started to work from home. She came in to work specifically on 7 December for the event at the AJ Bell Stadium as she would normally have been working from home at this point in time. Mr Hodson’s version of events is that he agreed to speak to Ms Hoyle and proposed to arrange a mediation between the two women. The claimant denies that Mr Hodson proposed a mediation.

[54]On balance, I accept that Mr Hodson effectively delayed dealing with the issue until both women were due to be fit enough to attend work and mediate. As this never happened, he never got as far as arranging a mediation. The claimant and Ms Hoyle were not in work at the same time and their paths could not cross. The issue is really whether this was an adequate response to the issue from Mr Hodson. It is not so much that he said that he did not want to speak to Ms Hoyle because of her mental health issues, rather, that given the state of both women’s health at the time, there was a limit to what Mr Hodson could do about it in practical terms. The claimant’s view of what Mr Hodson said has been clouded by her own conclusion that Ms Hoyle was a bully. In reality, the practical outcome was the same either way. There was a plan to resolve matters which could not be put into action due to the health of both employees at various stages in the chronology. In those circumstances, mediation could not take place. The claimant had also said that she did not wish to raise a formal grievance about the issue. It is difficult to see what more Mr Hodson could do at this time and in such circumstances.

[55]In cross examination, Mr Hodson maintained that he did speak to Ms Hoyle about bullying but that his notes of the conversation were not available because they were in an old diary which would have been shredded. He did, however, accept that he never told claimant that he had spoken to Miss Hoyle about the bullying allegation at the time as he did not think it was appropriate to do so while she was off work sick. Thus, whether he spoke to Ms Hoyle or not is of limited relevance, as the claimant was left to conclude that he had not addressed the issue with Ms Hoyle at that time.

[56]On 23 December 2022 the claimant suffered a “TIA” (otherwise referred to as a “mini stroke.”) The contemporaneous sick note says that she suffered neurological symptoms and “? TIA.”

[57]On 28 December the claimant had a consultation with her GP about the mini stroke, and she also emailed Mr Hodson about it. (Mr Hodson received the email upon his return to work on 4 January.) In the email she told him that she had spent time in A&E with symptoms of stroke/TIA. She had been referred to the Stroke Clinic for tests, investigations, and help. She confirmed that she was unable to drive at that time. She referred to her GP fit note. She stated that she expected the reason for her absence to be kept confidential and not to be shared with other colleagues and managers (although she accepted that the reason would need to be given to Ms Seex and possibly HR.)

[58]On 11 January 2023 Mr Hodson contacted the claimant by telephone. The parties have different recollections of what was said during the call. The claimant says that she asked for a reduced workload and attributed the TIA to work-related stress. Having reviewed the available evidence (and bearing in mind that the “KIT” records which were said to relate to this conversation were created and uploaded some time after the event), I am satisfied that the claimant did communicate that she wanted to keep contact between her and the respondent to a minimum whilst she recovered. However, she also wanted the respondent to address the ‘bullying allegations.’ The difficulty with this request was that it put the respondent in something of a Catch 22 position. In order to address the claimant’s grievances, the respondent’s managers would have to make contact with the claimant. However, the claimant did not want to receive regular contact from the respondent’s managers. How could the respondent resolve this apparent contradiction?

[59]Having reviewed all the available evidence I am satisfied that, during the respondent’s contact with the claimant in January 2023, the focus was on the claimant’s TIA, as one would expect. The respondent would have a legitimate interest in enquiring after the claimant’s health for the purpose of assessing when she might be able to return to work and what steps might need to be taken to facilitate this. I also accept that the claimant may well have made reference to stress at this point in the chronology. It may not have been the claimant’s main focus, but it is certainly true that prior to the TIA there were issues of stress bubbling under the surface. The claimant may not have focused on the issue of bullying during her conversations with the respondent in January but there had been discussions about the relationship with Ms Hoyle in December 2022. This relationship difficulty is what she came to refer to as ‘bullying’ during the Tribunal proceedings. This bullying allegation had been raised with the respondent but had not yet been addressed. It had not disappeared as an issue, but the TIA was, of course, the more pressing matter for the respondent and the claimant to discuss and address. Even the claimant’s own witness statement acknowledges that she discussed a number of different factors which may have led to her TIA. These included the need for a reduction in her workload and a fair distribution of work between her and her colleagues and the bullying that she asserted she was experiencing from Ms Hoyle. I accept that she told Mr Hodson that her GP would not let her return to work until the work-related stress factors were removed or reduced. I also accept that Mr Hodson referred to the restructuring of the department and the introduction of new ways of working which would resolve some of the claimant’s concerns. The date for implementation of these changes was, at that stage, uncertain. In her witness statement the claimant says that she took this to mean that Mr Hodson was not prepared to share the work between her colleagues and herself in a fair way. This may well have been her subjective impression, but I am not satisfied that it was an objectively reasonable interpretation of what was actually said to her by Mr Hodson during this conversation. I am not persuaded that Mr Hodson gave any indication to the claimant that he would not address the fair allocation of work in the team.

[60]As set out below, the claimant sent an email on 5 February 2023. This may well be the first written reference to work-related stress as the cause of the TIA, but this does not necessarily mean that the claimant had not already made this assertion verbally in January. The problem is that the respondent has not kept detailed records of the issue and so was not really in a position to dispute the claimant’s written documents and records. In cross examination Mr Hodson accepted that the claimant had raised the majority of the matters contained within 5 February email during the telephone call on 11 January 2023. I am satisfied that the claimant is likely to have asked him to keep contact to a minimum at this point, given the apparent seriousness of the TIA and the complaint of work-related stress. It would be contradictory for the claimant to invite lots of contact from the workplace if work was said to be the cause of the TIA. Of course, the claimant’s wishes in this regard may well have changed over time so that she felt that more contact from the respondent was appropriate at a later date in the chronology. It was, in reality, an evolving situation.

[61]The email of 5 February is the best evidence the Tribunal has as to what was discussed during the phone call on 11 January. In short, I accept that all of the issues within the email were raised but that recollections vary about the degree of emphasis placed on each of the issues during the course of the telephone call. Mr Hodson had no really clear evidential basis on which to contradict the written document. Whilst the claimant had asked for minimal contact at that point in time (given her views about the recent TIA) I also accept that she wanted a proactive approach from the respondent. However, some of the things that she was requesting were unachievable at that point in time.

[62]Returning to January in the chronology of events, the claimant asserts that Mr Hodson should have referred her to Occupational Health by 18 January as it was 21 days after her first absence (she relies upon the contents of the respondent’s Attendance Management Policy at paragraph 47).

[63]The claimant asserts that she attended an appointment at the Stroke Clinic on 20 January 2023. On 25 January, the claimant sent an email to Mr Hodson with an update regarding her health and treatment. She indicated which appointments she had attended and what her upcoming appointments were. On 26 January Mr Hodson emailed the claimant thanking her for the update expressing the hope that she was improving and letting her know that if she required anything she should let him know.

[64]The claimant submitted a fit note for 28 days dated 3 February 2023. The reason for absence was recorded as “neurological symptoms? TIA.”

[65]As previously stated, the claimant sent a further email to Mr Hodson on 5 February. It enclosed a copy of her sick note and asserted that the cause of her TIA was work-related stress. She listed her main concerns relating to work-related stress. In summary these included historic and recent workplace bullying (she stated she believed recent bullying had been dealt with), workload not being evenly distributed, planning consultation still being left, expectations that the claimant would do work above her pay grade, personal performance figures being shared (which causes bad feelings between colleagues), feeling unsupported during the complaint investigation relating to the premises on Yorkshire Street in Oldham, and the absence of ‘one-to-ones’ for support. She asserted that her last one-toone meeting had been on 19 May 2022 and that she had made requests to have a one-to-one but there had not been time to book one in. She referred to the advice she had received from her GP that the work environment would be detrimental to her health should she return to work as things were. He would not let her return until the risks to her health, as detailed above, were reduced (and if the MRI scan results were clear). She stated that she knew that the new working groups would reduce most of the stress but commented that there had not been any clarity on when these changes would be implemented. She closed by stating that once she got the all clear from the doctor, she would be ready to return to work but that if the new working groups were not in place by this time, then measures would need to be in place to ensure that she was able to return to work.

[66]Mr Hodson said that he did not make an occupational health referral for the claimant at this stage because the claimant did not want anything to do with work and he didn’t want her to “die in work of a heart attack like she kept saying.” He felt that concerns could be addressed and raised when she was ready to return to work and they could organise a one-to-one meeting. He says he did not offer support because he was told that she was already obtaining counselling via the NHS. This might have been a misunderstanding on his part, but I am prepared to accept that the claimant had said that she was already referred for counselling through the NHS and therefore did not need it from the respondent too. I am satisfied that Mr Hodson did discuss an occupational health referral with the claimant for the first time in February 2023 and that he received the impression that the claimant had all the support that she needed at that time.

[67]In the course of cross-examination Mr Hodson accepted that there was an obligation to refer an employee to Occupational Health within 21 days. This is set out at paragraph 47 of the respondent’s relevant policy document. He accepted that the first notification from the claimant was on 28 December and that, therefore, the referral should have been made by 18 January 2023 at the latest. Mr Hodson erroneously thought that he was doing the right thing. He accepted, with the benefit of hindsight, that he should have referred the claimant to Occupational Health earlier than he in fact did. He also accepted that Gary Wilkinson (the claimant’s comparator) had been off work for more than 28 days and that he was referred to Occupational Health within the applicable time frame. Mr Hodson says that Mr Wilkinson was referred and he wanted to return to work. Mr Hodson also accepted that the respondent’s policy document did not give the manager a discretion about whether to make an occupational health referral or not. He maintained that he did what he thought was best at the time given the claimant’s ill-health and the fact that she did not want to “die at her desk.”

[68]During the course of her evidence Ms Wight asserted that the 5 February email and the fit note (taken together) did not provide sufficient medical information to substantiate a diagnosis of anxiety or depression. She says that, although with hindsight the respondent could have investigated further, she does not accept that the respondent would have been alerted to the disability if it had taken more steps to explore the matter at this point in time.

[69]Mr Hodson emailed the claimant in response on 15 February thanking her for the email and the sick note. He stated that he hoped she was feeling better and improving. He stated that they could discuss the concerns that she had raised when she was able to return to work and work out a strategy for working if the new teams were not in place at that time. He also stated that he would arrange a one-to-one meeting between him and the claimant to look at reducing work pressures and possible support moving forward. It is at this stage that the parties seem to have come to something of an impasse. Mr Hodson did not consider it necessary to address work-related stress factors until such time as the claimant was approaching being ready to return to work. The claimant, on the other hand, felt that work-related factors and stress were a barrier to her returning to work. In short, she could not return to work until stress was addressed, whereas Mr Hodson would not address stress until the claimant’s return to work was reasonably imminent.

[70]On 20 February the claimant had a phone assessment with a private counsellor.

[71]The claimant submitted a new fit note dated 21 February which stated the reason for absence as being “anxiety state work-related stress.” This seems to have been the first fit note referring to mental health as a reason for absence. The claimant says that she had a GP appointment where she discussed her mental health and the fact that she was on the waiting list for counselling. It was because the NHS waiting list was too long that the claimant decided to go for private counselling. The contemporaneous record of her discussion with the GP (which would not have been accessible to the respondent at the time) indicated that the GP was going to order an ECG but thought it was highly unlikely that anything serious was going on and that this was probably due to an anxiety related issue.

[72]It is around this point in time that Ms Wight suggested that the claimant’s anxiety really came to the respondent’s attention (when the fit note mentioned anxiety). The respondent’s case is that this was the first real medical reference to anxiety and that it said little about the detail of her condition. The claimant, for her part, asserts that they should have asked more questions about it at this point in the chronology.

[73]On or about 11 March 2023, Ms Seex reviewed the management report from the People Services Team which highlighted cases of sickness, capability and modified duties. It highlighted to Ms Seex that the claimant had been off work for 73 days at that point in time and that there had been no attendance management meeting, according to the records. She emailed Mr Hodson to query this, noting that she could not see that a referral had been made to Occupational Health and that “keeping in touch” (KIT) forms had not been uploaded to ITrent. She asked him for confirmation that all appropriate steps had been taken and asked him to upload all the relevant documents to the system.

[74]On 13 March, Mr Hodson left a voicemail for the claimant (at the instruction of Ms Seex). He then had a phone conversation with her. His record of that conversation suggested that they had had a discussion about her health and wellbeing and whether she required any assistance from Mr Hodson. It recorded that they discussed how the claimant was feeling regarding her condition. It recorded that she was still suffering from stress and anxiety and regarded work as the reason she had had the TIA. He continued, “Shelley stated to me that she feels if she came into work, she would die at her desk due to the stresses placed on her whilst being at work. I reassured her that before she came back into work we would meet and discuss what we as an organisation could put in place to reduce or remove these concerns. Shelley stated she does not feel she is anywhere near return to work at this present time and even discussing this makes her feel anxious. I said that we are required to arrange a referral and Shelley confirmed that she was happy for me to refer her to occupational health for a telephone referral. See below for the referral.” The claimant disputes that Mr Hodson ever mentioned having a meeting to discuss what the respondent could do for her before she returned to work. Whilst she may not recall this, I am satisfied that he did refer to this at this stage. The lack of certainty about when such a meeting would be was the material issue, rather than whether there would be a meeting of this nature at all. Mr Hodson says that the claimant did not initially want an occupational health referral. However, I am satisfied that she was prepared to have an occupational health referral even if she was dubious about the amount of assistance it could actually provide to her.

[75]The claimant attended her GP again in March and was provided with a fit note on 20 March. Again, the fit note recorded the reason for absence as being “anxiety due to work.”

[76]A report from Psychological Services referred to as a “Stepped Care Report” was produced dated 30 March 2023. This was the product of a telephone assessment conducted with the claimant by Ms Begum, the Stepped Care Therapist. The salient points of that report were that the claimant was currently absent from work with the fit note citing work-related stress and anxiety as causative and that the discussion focused on whether any work, personal or domestic circumstances were impacting on her at that time. The claimant had reported management and colleague relationship issues and issues with regard to her perceived workload (management issues outside the remit of the report). With regard to personal or domestic circumstances, the claimant had reported that there were no personal related issues impacting upon her resilience. She stated that she was experiencing symptoms of anxiety and low mood and that she was currently accessing therapy via her local talking therapy service. Therefore, Ms Begum confirmed that it was not appropriate for the claimant to also access support through “PAM Wellbeing.” The claimant reported a recent GP diagnosis of anxiety and that she was taking propranolol, which is a beta-blocker used to treat physical symptoms of anxiety. Assessment tools were used during the consultation. The claimant’s GAD score indicated severe levels of anxiety symptoms. Her PHQ9 score indicated moderately severe levels of depressive symptoms. The author’s opinion was that the assessment scores indicated the presence of severe levels of anxiety symptoms and moderately severe levels of depressive symptoms, which was supported by the claimant’s anecdotal account. Ms Begum’s opinion was that the claimant was experiencing symptoms of anxiety and depression in relation to occupational factors and stressors and that she would benefit from a therapeutic outlet to express how her stressors were impacting on her, to process her emotions, and to learn new coping strategies. As the claimant had reported that she was accessing counselling via her local talking therapy service, it was not currently appropriate for her also to access support through Occupational Health (PAM Wellbeing). In the management advice section, Ms Begum recommended that management continue to offer a supportive attitude to the claimant and to provide an open dialogue as required in order to address and resolve any concerns at the earliest opportunity. She noted that there appeared to be interpersonal difficulties at work and she strongly recommended that conversations take place with the employee to understand the impact. She stated that the HSE stress risk assessment tool would likely be helpful in this regard. She stated that the stress risk assessment would assist in identifying what is positive about work as well as what stressors the employee perceived. She noted that, “further OH intervention is unlikely to be helpful until any real or perceived employee workplace stressors are addressed.” She also recommended that the claimant complete a “Wellness Recovery Action Plan” (WRAP) and agree to this. By developing this WRAP, the claimant could actively support her own health by reflecting on the triggers. The process could also help management to open up a dialogue with employees, understand their needs and experiences, and ultimately better support their health. She concluded by confirming that the claimant was unfit for duties in line with her GP fit note. No routine wellbeing review was required.

[77]The occupational health report was sent directly to Mr Hodson. He accepted that the report indicated that the claimant was particularly poorly at the time of the assessment, and he also accepted that the report was saying that the priority was to have a conversation with the claimant at the earliest opportunity in order to address concerns.

[78]The claimant seems to say that she did not know what the occupational health consultation would consist of and was unaware that there would be a full health assessment. She was distressed when she discovered what was required. This seems unlikely. The claimant says that there was a breach of policy in that the reasons for the referral were not clearly explained to her. For her part, Ms Wight was asked why Occupational Health were not asked about the claimant’s disability status. She said that this was a “Stepped Care” report, like a triage process. Her view was that some referrals described whether someone was disabled for Equality Act purposes but this one did not. She maintained that Stepped Care was another support tool (like a psychological triage) which could recommend treatment or support for the colleague. She said that this was different to an occupational health report. She explained that Stepped Care is more of a mental health/emotional wellbeing triage as compared to Occupational Health. The Wellbeing Team would advise which type of referral was the most suitable in any given case: Stepped Care or Occupational Health.

[79]On 31 March, the claimant contacted Ms Seex to say that the occupational health appointment was not what she had been told it would be. She felt misled. She questioned Mr Hodson’s honesty in his description of the referral and asserted that this was causing her additional stress and anxiety. She asked Ms Seex for clarification as to why the referral was made. She was concerned that this might be the start of the capability procedure. She was clearly suspicious of the respondent’s actions.

[80]Ms Seex responded to say that she had queried the situation and said that she could send the claimant a copy of the attendance management and capability policies. She sought to reassure the claimant by saying, “a referral to Occupational Health is normal in cases of extended absence as OH are qualified to make recommendations as to the appropriate support the organisation can provide-e.g. counselling, physio, reasonable adjustments depending on the reason for absence. I don’t have the details of the referral but can get these if needed. Do you want to arrange a phone call so we can go through your queries and then I can look into them?” The claimant replied to say that she felt that the reason Mr Hodson had given didn’t sound right and she was concerned that there was no ulterior motive. She felt that Mr Hodson had not been open and honest and that she thought the report was going to be used for a capability meeting that she knew nothing about. She could not sleep the night before because of the stress. Now that she knew that the referral was part of the normal process, she felt a bit better and did not think a phone call was needed. She did ask for a copy of the policy.

[81]The policy document was sent to the claimant by Ms Seex on 31 March. She apologised for any confusion and any resulting anxiety. She sought to reassure the claimant that it was normal procedure. She confirmed that the referral should have been done at an earlier stage in accordance with the attendance management policy and that there should also have been an attendance management meeting. However, Ms Seex confirmed that this may have been delayed because the claimant did not want to attend a GMFRS site for the meeting. Ms Seex explained that an absence of 28 days is a trigger for an attendance meeting and 3 months’ absence is normally the trigger for a Stage I Capability Meeting. She sought to reassure the claimant that neither of these meetings was something that she should worry about as they were to ensure that the claimant could raise any issues causing or contributing to absence and the respondent could put in place things to address these. She explained that, if the claimant had not had an attendance management meeting, then a Stage I Capability Meeting would be premature. However, there would need to be a meeting with the claimant to review what could be done to support her and facilitate a return to work. This would ordinarily be with the claimant’s line manager but Ms Seex was concerned (from the claimant’s emails) that the claimant may have some concerns about meeting with Mr Hodson. She advised that, if the claimant felt that she needed to meet with another manager, then she should let Ms Seex know and she would arrange this. She confirmed that the claimant would be entitled to be accompanied at any meeting by a friend or trade union representative and that this would be fully explained in any invitation to the meeting. She expressed the hope that this had reassured the claimant about the process but indicated that if the claimant wanted to discuss the content of the email she should let Ms Seex know. She concluded by stating, “I do not want this to add any anxiety you have already experienced so if I need to clarify anything you can text or email over the weekend.”

[82]During the course of the day, Ms Seex had contacted Dave Minto asking for the relevant details of support that had been offered to the claimant and asked for this to be pulled together so she could discuss it with People Services. She also received a copy of the Stepped Care report and reviewed it. She says this was the first time that she was aware that there might be work related factors impacting on the absence and the absence was not solely related to the TIA that the claimant had experienced in January 2023. It was around this time that an arrangement was made that Bjorn Burdsall should start managing the claimant’s welfare.

[83]The claimant emailed Ms Seex on 1 April. She opened her email by saying, “I am a bit concerned that there is an understanding that I did not want to attend a GMFRS site for an attendance management meeting. I was never invited to one and had I been invited then I would have attended. There are some issues with Mick which will be on the Occupational Health report. To be honest since I have been off I was going to ask for a meeting with you to discuss but have not felt up to it… As there are management issues I was told these will need to be discussed. Not sure if Mick is the best person to be at the meeting or not. Mick knows most of the issues as I emailed them to him on 5th February. I also now feel that my sickness could have been managed better.… Thank you again for your help, reassurance and information. I really do appreciate it.”

[84]Ms Seex responded to the claimant on 1 April indicating that her main concern was how they could support the claimant to feel better. She confirmed that they could discuss who would be best to do any attendance management meeting and that the sooner they could do that, the better. She confirmed that they could meet at any location the claimant felt comfortable with. She also indicated that she could liaise directly with a trade union representative if the claimant wanted.

[85]On 3 April Ms Seex reviewed the claimant’s case with Dave Minto, who had also obtained a timeline of the claimant’s absence. It became apparent to them that the claimant had raised concerns about work-related stress on 5 February in her email to Mr Hodson. Ms Seex and Mr Minto agreed to offer the claimant the opportunity to meet with a different manager. They agreed that Mr Hodson should hold off from further contact with the claimant until a way forward had been agreed.

[86]Ms Seex emailed the claimant again on 3 April and confirmed that she had seen the email that the claimant had sent to Mr Hodson on 5 February and that she was concerned that the claimant had raised a number of issues that may not have been addressed. Ms Seex confirmed that they needed to arrange an attendance management meeting and there was a discussion about who should be having these meetings with the claimant in the circumstances. Ms Seex offered the claimant alternative managers including Mr Sugden. She confirmed that the claimant would be given reasonable notice (and a minimum of 3 days’ notice) for an attendance management meeting but, in the circumstances of this case, Ms Seex felt that a minimum of 10 working days’ notice was appropriate. She also said that the issues that the claimant had raised in her 5 February email caused concern. Ms Seex thought that a separate meeting about these issues might be beneficial and offered the claimant a meeting with Ms Seex, Mr Minto, or Mr Van Hecke. She asked the claimant for her preference about who did the meetings and whether she wanted an additional informal meeting as well as the attendance management meeting. The claimant may well have intended to reply to this message, but her reply email was left in a draft folder suggesting that it was not actually sent to Ms Seex.

[87]The claimant had her first appointment with her privately funded counsellor on 4 April.

[88]On 5 April the claimant emailed Mr Hodson and stated that she did not realise that he was expected to speak with her every two weeks. She expressed the view that this was excessive given her sick note and her occupational health report. She stated that since the assessment her health had deteriorated due to finding out that the reason for the occupational health referral was different to the one that she was given. She had become aware that the referral should have been made earlier and that, had that been done, they would have been able to offer the claimant some support sooner. As it was, there was no support that they could offer because the claimant had paid to go private rather than wait on the NHS waiting list for months. She stated that there may also be inaccurate information on her file regarding any attendance management meeting and a suggestion that she did not want to attend a GMFRS site for the meeting. She stated that, if this had been recorded, it was not true, as the claimant had not been invited to any such meeting. Had she been invited, she would have attended. She continued, “It is very upsetting, disappointing and stressful that information may be being recorded incorrectly and that the organisation’s policy is not being followed. I did contact Jenni for clarification on the reason for the referral to occupational health because you told me it was Jenni who authorised the referral. Jenni has given me reassurance on the reason for the referral. All the above has caused me stress which has had a negative impact on my health and will impact my recovery.” It is apparent from this email that the claimant had lost faith in Mr Hodson and did not trust the accuracy of what he was saying to her in his communications with her.

[89]In reflecting on the documentation, I conclude that it is likely that the respondent mis-recorded the claimant as not been willing to attend a GMFRS site. This is partly because the claimant set the record straight about this so quickly after the issue was raised. The reality is that the claimant did not want to be pestered unnecessarily by the respondent whilst she was off sick, but she did not object to attending meetings which were required as part of the respondent’s policies. I suspect that she did say something to the respondent about being frightened of ‘dying at her desk.’ However, this reflects a fear of being made ill whilst at work rather than a fear that any contact with the respondent or other meetings with the respondent will trigger a TIA. Where there was a dispute between Mr Hodson’s evidence and the claimant’s evidence, generally speaking, I found the claimant’s evidence to be more reliable. This is at least partly because Mr Hodson did not keep contemporaneous notes or upload them to ITrent quickly or get the claimant to agree the contents of any such notes as an accurate record. He had formed an impression of what the claimant wanted and the claimant found it difficult to dislodge that impression. She considered that Mr Hodson had got a false impression.

[90]I also accept that it was difficult for Mr Hodson and the other managers at the respondent to strike the appropriate balance between keeping in contact with the claimant and supporting her without pestering her and making it harder for her to recover so that she could return to work. In Mr Hodson’s case, he opted to leave her alone to recover because he had erroneously concluded that that is what she wanted. She tried to make it clear that there had been a misunderstanding, and he should have responded to that. He seemed reluctant to accept that there had been a misunderstanding. I also accept that Mr Hodson had many other calls on his time and may well have struggled to give the claimant’s case the degree of priority that she was asking for. This may be another reason why the claimant’s recollection is generally more accurate. She only had her own case to focus on and recall. Mr Hodson, by contrast, had a number of other employees to deal with and several competing obligations and responsibilities. Given those different priorities, the claimant is perhaps more likely to recall what happened in her own case than Mr Hodson is.

[91]It is apparent that Mr Hodson sent emails around 5 April because he had not yet been told by Ms Seex to hold off from communicating with the claimant.

[92]On 5 April Mr Hodson stopped line managing the claimant. He was not told who would be taking over line management from him. The transition was handled by Mr Hodson’s line manager, Mr Minto. Mr Hodson did not carry out a handover or update the new manager as to where he had got up to with the claimant’s bullying allegations. Rather, he was removed from management and told that no further contact was necessary. I accept, based on Mr Hodson’s oral evidence, that he did not hold an absence review meeting because he thought it was inappropriate and would be detrimental to the claimant’s health. He was well-meaning and had good intentions, even if this was not what the claimant wanted. Indeed, he said that he did not realise that the claimant felt that she had been misled about Occupational Health until some time later, after he had stopped line managing her.

[93]On 15 April 2023 the claimant emailed Mr Hodson. It was a follow-up to the email that she had sent on 5 April. She asked when the required meetings were expected to take place and asked him to provide her with a copy of the occupational health report. She stated that additional stress was negatively impacting her health, her blood pressure was rising along with her risk of suffering a stroke or heart attack. She also asked for confirmation that the bullying, which she said she had reported in September, October and December 2023, had been dealt with (and when). She suspected that it had not been dealt with and would have expected to have received an outcome if it had. She stated that uncertainty about when meetings were to take place (and why they were being delayed) was making her feel stressed and anxious, hence she was asking for information about them.

[94]Ms Seex was copied in to this email and it was the first time that she became aware that the claimant had raised concerns about bullying. She was not aware, from the content of the email, whether this had been raised through a formal process. As stated, as a result of the concerns about the relationship between the claimant and Mr Hodson (and the possibility that this would be a barrier to facilitating support and a return to work), Ms Seex decided that an independent manager would undertake the attendance management meeting and look into the other concerns being raised.

[95]As a result of the above Ms Seex responded to the claimant’s email (to Mr Hodson) directly. She apologised for the mix-up in communications and explained that she had asked Bjorn Burdsall to carry out the attendance management meeting on the basis that he was someone who was independent and so Ms Seex could ensure that the claimant could raise any other concerns in order that the appropriate policies could be followed. She reiterated that 10 days’ notice would be given and the venue would be arranged to suit the claimant. She also reiterated the offer for the claimant to meet with Ms Seex or someone else outside of the attendance management meeting. Overall, this was a supportive email making it clear that the claimant’s needs and wishes were being addressed and respected. It should have reassured the claimant. The claimant’s response indicated that she was happy with Ms Seex’ proposed way forward. She also recognised that her earlier intended email reply had not actually been sent to Ms Seex. The claimant indicated that she would prefer for Mr Sugden to do the meeting for attendance management, and she also asked whether any action had been taken in relation to the bullying allegation.

[96]Ms Seex responded again the same day and said that, unless the claimant had an objection, she was minded to ask Bjorn Burdsall to pick it up given the other issues that she had raised. She stated that she was not aware of where things were up to regarding a bullying complaint as she was not previously aware of the complaint. However, she said she would make some enquiries. She also said she would check and liaise with the trade union for dates for the attendance meeting. Again, this was a supportive and reassuring email from Ms Seex to the claimant. In particular, Ms Seex recognised and accepted that the attendance management meetings should have taken place much sooner. The claimant responded that she was happy for Ms Seex to arrange dates and was also happy for Bjorn Burdsall to keep hold of this particular issue instead of Mr Sugden taking it on.

[97]On 16 April Ms Seex proposed the first available date of 8 May (due to trade union commitments) or 25 April in the afternoon. The claimant had counselling on 25 April but could arrange it around the meeting and so 25 April was booked and confirmed by email on 18 April.

[98]On 17 April the claimant attended a GP appointment and a further fit note was issued. The claimant suggests that this was the day when she realised that Mr Sugden was now designated as her new line manager.

[99]An email from Ms Seex to the claimant on 18 April confirmed that the attendance management meeting would take place on 25 April at 10:30am with Bjorn Burdsall. The email also enclosed a copy of the occupational health report and indicated that the claimant should set out her concerns at the meeting so that the respondent could take steps that would support her to return to work.

[100]During April action was being taken to implement a new structure within the Protection Team at the respondent. The claimant had expressed a preference to be assigned to the Risk Reduction Team. The respondent’s witnesses explained that, in order to implement the new business structure, there was a mapping process to set out the new structure on the system. Individuals then had to be allocated to the roles with appropriate line managers. I was told that 15 positions for Senior Fire Safety Inspectors had to be mapped onto ITrent for budgeting purposes and then those roles had to be allocated across different teams. As part of this, the claimant was allocated to a senior role on the system even though she had not been given a senior role. Her name was effectively a ‘place marker’ for a senior post within the structure/organogram. The claimant was assigned to the line management of Mr Sugden so that she could have a meeting with him for attendance management purposes.

[101]On 17 April Ms Seex emailed all colleagues in the department in relation to the implementation of the new structure. The claimant was on the distribution list and so this email was sent to her too. The claimant was upset because colleagues contacted her about the apparent change in her line management. She maintains that this should not have happened, given that she was off work on sickness absence. However, there was nothing intrinsically wrong with the respondent sending the email to the claimant to keep her informed during her absence. Managers could not have known that colleagues would contact the claimant about it or remark on her change of line manager. In any event, I am satisfied that the claimant would have had more cause for complaint if she had not been provided with the structural updates at the same time as other members of the team.

[102]Mr Sugden took over line management responsibility for the claimant on or about 17 April and sent her an email to confirm this. He stated that she should feel free to ring him or email for a catch up. The claimant sent her fit note to Mr Sugden. The reason for absence was stated as, “mixed anxiety and depressive disorder.” She also queried whether her reason for absence was being kept confidential and she stated she did not want everyone to know, mainly because of the causes and the fact that it was all work-related. In his response, Mr Sugden confirmed that he respected her confidentiality. He understood why she did not want things to be spoken about but sought to reassure her that he had not heard any of the managers or others saying why the claimant was off work. He continued, “try not to worry about work or let it inhibit your recovery. I hope you find a way to overcome these issues without any pressure from me or the wider department to return until the right time. If you and Jenni have agreed that an independent person takes the meeting that’s fine and I will support you in other ways if you’re comfortable with this, or if it’s better I will just keep updated on your status.… Hope things improve for you and I can arrange contact with occupational health or the employee assistance programme if this has not already been done.”

[103]It appears that the claimant was sent a copy of the respondent’s bullying and harassment policy on 21 April. On 24 April Mr Sugden contacted Ms Seex because ITrent was showing the claimant placed in a senior role, erroneously. This was due to a mapping error because of the implementation of the new structure, as set out above. Ms Seex immediately requested changes to the job titles on the system in order to correct the error and confirmed that in an email to Mr Sugden later that evening.

[104]On 25 April the absence review meeting took place between the claimant and Mr Burdsall. The claimant alleges that he refused to discuss the recommendations in the first occupational health report during this meeting. He sent up a follow-up email later that afternoon. The email set out the actions that they had discussed. His actions included sharing questions with Jenni Seex. He confirmed that he had shared them by email and would follow up the conversation on Thursday. He was tasked with responding to the claimant’s questions within ten days and with arranging a meeting with the claimant and Ms Seex once the claimant had a response to the questions. He confirmed the welfare support available within the organisation. One matter which had arisen was that the claimant wanted assurances that reported negative behaviours had been explored and addressed to support a positive working environment for her return. Mr Burdsall commented that this might only be possible once the claimant was back in the workplace as it would be hard to confirm until then. He was tasked with reviewing the capability triggers given that the policy appeared not to have been followed and to arrange for some input and support in understanding the new structure. The claimant’s actions were recorded as confirming that she was happy for Mr Burdsall to support her welfare until he could hand her over to her line manager, to continue to attend counselling and continue her wellbeing practices and to consider what a return to work would look like (e.g. a phased return). He asked the claimant to let him know if there was anything else she wanted to discuss or anything else he could do to support her welfare. He confirmed that he would work through his action points and that he or Ms Seex would respond to the claimant in due course. Mr Burdsall’s email was supportive and reassuring. It indicated a desire to do what was needed to support the claimant and get her back into work at an appropriate stage.

[105]On the same day Mr Burdsall emailed Ms Seex to update her about his meeting with the claimant. He separated the issues into “welfare issues” and “concerns raised” by the claimant. He was proposing that he would hold another attendance meeting with the claimant to address welfare issues and that Ms Seex should meet with the claimant to discuss the “concerns raised” issues. The email included action points for Mr Burdsall and for the claimant and included observations about the policy not being followed and the training and learning needs identified. Issues were identified with line management and workload distribution, lack of support, and the late occupational health referral. It also noted that there had been no one-to-one meetings since May despite the claimant having a new line manager in August.

[106]The claimant replied to Mr Burdsall’s email confirming that she was happy for him to support her welfare and that she would continue with her counselling and wellbeing practices as it was her priority to get herself well again. At one point she stated, “thinking about returning to work does cause me stress and anxiety as all I can think about is that I will die at work. I am working on this with my counsellor so this is something I may need to think about it a later date but I would imagine it to be a phased return.” She confirmed that she had looked at the welfare page and queried whether the negative behaviours Mr Burdsall quoted were the bullying allegations that she was pursuing.

[107]On reading Mr Burdsall’s email to the claimant, Ms Seex asked Mr Burdsall to sit down with Mr Hodson to review Mr Hodson’s interactions with the claimant in order to compile a draft response to the questions asked. On 5 May Mr Burdsall updated Ms Seex with the proposed response to each of the questions which was to be sent to the claimant and some recommendations in relation to Mr Burdsall’s observations and findings. This included a recommendation that the attendance management process should be separated off from any bullying complaints and for the attendance management element to be handed over to Mr Sugden and for completion of a stress risk assessment and a WRAP to be undertaken as part of this.

[108]On 9 May Mr Burdsall responded to the claimant’s questions. In summary, he accepted that the attendance management policy was not followed and that this was because Mr Hodson did not want to add to the claimant’s anxiety by inviting her in for a workplace meeting. He also accepted that the occupational health referral should have been made sooner and an attendance management meeting arranged. He accepted that the occupational health referral should have been made sooner and that this was due to unfamiliarity with the policy with reference to occupational health referrals for stress-related absences. This was picked up as part of the management review of absence in March and action was then taken to make the referral. In relation to the alleged absence of support in the first 4 months of the claimant’s sickness absence, the respondent said that there was regular contact, although much of it was via email and phone calls. He acknowledged that the claimant may not have felt supported through this contact. The email recognised that it is important that regular contact is maintained and a meeting should have been arranged to discuss what could be done to support a return to work earlier. In relation to the issue of Mr Hodson not booking a one-to-one which the claimant had been requesting since he started in the role, Mr Hodson indicated that after starting in the role he had intended to book in one-to-ones with his team in January. This did not take place, and the claimant was absent from work by that time. The respondent stated that it was expected that one-to-ones would be held more frequently than this and that the respondent had formalised this in the new Fire Safety Regulator Competency and Development Plan. Going forward, all fire safety regulators would have one-to-ones between every month and every two months depending on development needs and preferences, and this would be monitored. In relation to the issue of having boxed up the claimant’s belongings for a desk move, the protection management team were unaware of this request. As the claimant was absent, the intention was to leave her belongings for the time being as there was no apparent urgency and they did not want anyone to move her belongings without her knowledge/involvement. In relation to the issue of the claimant being given a new manager without being told, given the concerns raised about her manager, the Head of Protection decided to assign Mr Sugden to the claimant in the short term pending clarification and resolution of concerns. In relation to the issue of the claimant being listed as a Senior Fire Safety Inspector, the email explained that this was part of the mapping process and involved an erroneous title change (see explanation above). In relation to a failure to follow the bullying and harassment policy it was stated that the intention was to attempt to resolve this informally. It was confirmed that it had not been possible to progress this because Ms Hoyle and the claimant had both been absent. Given the passage of time, the matter would be progressed in line with the claimant’s wishes. If the claimant still wanted it to be addressed informally steps would be taken to do so. The email confirms that the respondent could not comment on why the claimant had been treated unfairly as this was a matter of her perception. It did acknowledge that not all of the appropriate processes and procedures had been followed, and it was accepted that this may have contributed to the claimant feeling that she had been treated unfairly. In relation to it being recorded that the claimant had refused to attend meetings, this appeared to have been a misunderstanding. Because of some of the anxiety symptoms Mr Hodson thought that inviting the claimant to GMFRS premises for a meeting would cause her additional stress. It was accepted that a meeting should have been organised sooner. In relation to the claimant’s suggestion that the line manager had not told her the real reason for the occupational health referral, the respondent said that this was due to a lack of understanding of what the referral entailed as Mr Hodson had not dealt with this before. It was also a poor choice of language. The respondent said that this sort of referral was standard and part of the process to support the individual and identify what the line manager/employer could do to support wellbeing and return to work.

[109]On 10 May the claimant emailed Mr Burdsall saying she would comment on his responses. She did so via email dated 19 May. Also on 10 May, Mr Sugden emailed the claimant to reiterate support and to offer his mobile phone number if she needed it. On 12 May there was a further fit note stating mixed anxiety and depressive disorder. Mr Sugden says that he received this on 15 May. On 12 May Mr Sugden made a further occupational health referral for the claimant. This culminated in the report produced on 6 June.

[110]On 13 May the claimant sent an email to various individuals asking for advice and assistance. The email was sent to George Fisher, Jax Effiong and Julia Morrison. These individuals were (according to the content of the email) outside of her department. She stated that she felt totally let down by her department’s response. She stated that she had reported bullying in September 2022 and that her line manager said that he was not prepared to deal with it because the person in question ‘had a lot going on.’ The claimant set out her version of events leading up to her TIA. She complained that the bullying issue had not yet been dealt with. She stated that she was angry that management were asking if she wanted to let the bullying allegation go. She complained about breaches of procedure and asserted, “I’m starting to feel like I am being discriminated against but not sure why.” She asked for advice. The information in the email chain indicates that Jax Effiong was an Equality Diversity and Inclusion Manager. George Fisher was a Human Relations Manager in the People Services Directorate. It is not possible to discern what Julia Morrison’s role within the organisation was. There is no written response to this email from these individuals within the bundle of documents presented to the Tribunal.

[111]On 16 May, Mr Sugden had received the claimant’s fit note and reminded the claimant not to hesitate to get in touch if she needed further support from him or Occupational Health etc.

[112]On 19 May the claimant responded to Mr Burdsall’s earlier correspondence and commented on the answers provided. She said that she did not think that Mr Burdsall had answered all of her questions fully. She says he did not respond and did not contact her regarding the capability trigger, and no follow-up meeting took place. On 21 May Mr Burdsall contacted Ms Seex by email, including the claimant’s email of 19 May which was sent in response to his earlier email. Ms Seex provided a copy of the email to Dave Minto. The overall impression from the documentation was that the claimant was unwilling to accept the explanations given and questioned Mr Hodson’s motives. She was unlikely to accept any explanations as adequate at this stage of the proceedings. I am satisfied that the justifications given by the respondent managers were genuine. The question is what the claimant would need in order to be able to move on from these issues.

[113]On 25 May Mr Sugden phoned the claimant in order to check on her wellbeing as part of their regular communication. He forewarned her that he would not be able to maintain weekly contact for the next three weeks as he had annual leave and was attending a course, but he would arrange for the wellbeing team to stay in touch with her. He confirmed that he had made a further referral to Occupational Health. The claimant spoke to Mr Sugden and emailed him. He responded the same day. He confirmed that he had asked for a Step One Case Assessment which is the pathway to a workplace risk assessment and other support mechanisms intended to benefit her return to better health. The appointment was to be on 6 June. This could be rearranged if appropriate or required. He explained the difficulties they had had in contacting the claimant. In relation to the “Bheard” survey, Mr Sugden had been told that this was being investigated so that a response could be provided as to why this had happened. He also copied in Ms Seex and Mr Burdsall to the email as they might be able to provide an update on the concerns the claimant had raised with them regarding bullying. He confirmed he would be back in work on 16 June.

[114]On 5 June the Assistant Chief Fire Officer Leon Parkes sent a departmentwide email regarding culture in the workplace and referring to mental health concerns.

[115]On 6 June the second occupational health report was completed. It was written by a trainee occupational health nurse and followed a telephone consultation. The current issue was recorded as an exacerbation of the claimant’s mental health problems due to perceived work-related stress. The claimant had reported ongoing stressors had caused physical symptoms which included her TIA in December 2022. She reported that her perceived work-related stressors remained ongoing and she was engaged with her GP and prescribed appropriate medication. She was engaging in private psychological interventions at the time of the consultation. The occupational health opinion was that a TIA can serve as both a warning of a future stroke and an opportunity to prevent it. The report suggested that there is no evidence of increased stress increasing the risk of further TIAs as these are caused by a buildup of cholesterol-containing fatty deposits called plaques (atherosclerosis) in an artery or one of its branches which supplies oxygen and nutrients to the brain. The report recorded that the claimant was considered to have made a full functional recovery following her TIA but that the claimant reports perceived work-related stress due to interpersonal difficulties. The report indicated that stress is not always bad as it can be a useful motivation, but when it becomes excessive it can make a person feel unable to cope, adversely affect work performance and health. Based on the information provided, the report indicated that the claimant’s symptoms were related to the perceived work-related stress triggers which she reported as ongoing. The report recorded that, from the employee’s perspective, the workplace concerns were not being satisfactorily addressed or resolved by the employer. The report continued, “Therefore, it is now absolutely paramount for employer and employee to engage in constructive dialogue to address these concerns and seek resolution. If such a mutual resolution cannot be reached, the prospects for sustainable and regular service would seem highly unlikely. Shelley will require managerial support to help sustain attendance in work. I have reiterated the ability to access additional support via the GP should Shelley require this. I have discussed self-help resources for sleep advice and support fatigue/lifestyle management. It appears she is trying to support her mental health however, if the perceived work-related stress is left unresolved the effectiveness of this can be undermined.” The management advice in the report confirmed that the claimant was not well enough to return to work in any effective, consistent or safe capacity without the risk of further exacerbating her symptoms. It confirmed that there were no adjustments or restrictions which would support an earlier return to work. It confirmed that it was not possible to provide a timeframe for planning the return as this would depend on the response to treatment and medication. It confirms that it was unlikely that a return would be feasible in the next 4 to 6 weeks. The report advised that management remain in contact with the claimant and request further occupational health advice when her health needs change. Occupational Health could then review progress in relation to the problems identified including response to treatment and would be able to offer additional advice in relation to fitness for work, capabilities and future prospects. The report confirmed that they could also offer advice in relation to a suitable return to work plan as appropriate. All of the adjustments were “if operationally feasible.” The report continued, “General medical evidence suggests that undue delay in dealing with work-related issues or stressors often only results in an exacerbation of symptoms and long-term sickness absence. Therefore, OH’s advice is to complete a workplace stress risk assessment with this colleague.… Helping management develop and implement a stress reduction plan, if operationally feasible to do so.… This can be completed during Shelley’s absence and will likely help to support a return to work by decreasing any anxiety. It is hoped that following resolution of stressors that a return to work can be facilitated with support.”

[116]On 9 June the claimant contacted ACAS to commence Early Conciliation. She also had an appointment with her GP, and a further fit note was produced. Her medication was increased.

[117]In mid-June there was correspondence between the claimant and Leon Parkes. The claimant says that Mr Parkes offered to meet with the claimant, but she was not well enough and felt unable to take it further at that time. Ms Seex had also told Mr Parkes that she had offered to meet with the claimant on more than one occasion and was waiting for the claimant’s confirmation as to whether she wanted to have a meeting. There was also discussion regarding the potential need to extend sick pay given the delays earlier in the chronology with Occupational Health. This was agreed in principle.

[118]On 13 June 2023 the claimant submitted a grievance. Once that grievance was submitted, Ms Seex took the view that she should not reiterate her offer to meet with the claimant as the appropriate route to deal with concerns was now the grievance procedure. That said, she said that she would have responded favourably to any request from the claimant to meet with her. The claimant’s grievance raised the following issues: a failure to comply with the absence policy in terms of regular contact and nothing being considered by management to facilitate a return to work; issues in the email of 5 February not having been addressed; the respondent ignoring the occupational health report of 30 March and yet making an additional referral; the line manager failing to give one-to-ones to the claimant in the period September to December 2022; no action being taken to address the claimant’s report of bullying; the claimant not feeling supported during her absence; lack of support meaning that she had missed the opportunity to get services and support via PAM and now had to access them privately; all of the above causing unnecessary stress and anxiety causing a deterioration in the claimant’s health. The claimant stated that she would hold the respondent responsible for any further TIA or stroke.

[119]The claimant’s sick pay was reduced to half pay on or about 23 June 2023.

[120]The grievance hearing took place on 28 June, and minutes were taken of the meeting. It was conducted by Ms Wilson.

[121]During cross-examination Jane Wilson confirmed that there is no policy that one-to-one meetings have to be done at specific intervals. Rather, it depends on the manager, some conduct them once a month and some once a quarter. There was no policy stating that there had to be one-to-ones at particular times although if the employee asked for them then the manager should provide them. That is why the grievance was partially upheld in this regard.

[122]Mr Sugden had agreed to attend the Rochdale station to support the claimant on the day of the grievance hearing, if required. He did not attend the grievance hearing but he did have a discussion with the claimant’s trade union representative.

[123]On 30 June Mr Sugden says that he sent a calendar invite to the claimant for a workplace risk assessment meeting. He arranged a follow-up occupational health referral as the claimant had said that she was not happy with the one that had already been produced. The claimant had emailed that she did not trust the report as there had been no physical examination. The claimant, in correspondence, confirmed that she had everything in place that she needed in order to help her recovery from a medical point of view. She continued, “OH do not know what they are doing and I would not trust them with my health, especially when they have done no tests and are not full medical professionals-I will take the advice of a fully qualified stroke consultant and doctor who have carried out tests and scans and examined me over trainee occupational health advisor who has only gone through a mental health questionnaire and then copied and pasted from someone else’s report into mine. The appointments are causing me stress because they are saying stress can be a good thing when my doctor is saying it can kill you. If I listened to the PAM clinician I could potentially end up dead!”

[124]Mr Sugden responded to this by email on 4 July and expressed concern for the claimant. He expressed a hope that his response and actions could go some way to restoring her confidence in Occupational Health. He confirmed that the planned telephone consultation had been cancelled and a new appointment would be arranged in person with a doctor. He confirmed that the purpose of the appointment was to understand the medical aspect of her sickness as the previous appointment missed out points that the claimant raised about her medication etc. He requested that the claimant provide any medical information or records that she could in order to assist Occupational Health. He maintained that this would be treated confidentially. He also confirmed that he would rearrange the stress risk assessment so that it could take place after (and with the benefit of) the occupational health report. He hoped this would help and said that the claimant could speak to him on the phone, in person or by email.

[125]The claimant sent a lengthy reply on 4 July. She was not happy for Occupational Health to have access to her medical information as she was not convinced that confidentiality would be maintained. She was disappointed with the further delay. She confirmed that she was not driving at that time and would not be able to get to the location of the occupational health appointment. She asserted that the organisation was delaying what they needed to do, which was outlined in the occupational health report of 30 March. She asserted that the delays impacted on her in a negative way and that the respondent knew this but carried on regardless. She did not trust Occupational Health and felt that they were incompetent. The impression given is that she felt that Occupational Health was something of a distraction away from her treating clinicians. She asserted that occupational health appointments were causing her stress and anxiety because they were carried out by incompetent people. She made fairly strongly worded allegations about the way she had been treated by various managers and how this had impacted on her mental health. She likened it to an abusive relationship. She complained that the grievance policy was not being followed. She complained that the workplace risk assessment had been delayed.

[126]Mr Sugden replied to the claimant by email on 5 July, apologising for any distress caused to the claimant. He explained why he had moved the appointments. He was aiming to provide a high level of consultation as the original appointment was with a nurse and was conducted over the telephone. The claimant had complained that it was invalid given the absence of a physical examination. He changed it to an in-person appointment with a doctor in order to address the claimant’s concerns and apologised for the increased anxiety that this had caused her. He explained that the option to provide medical records and information was in order to furnish Occupational Health with a better prior understanding of the background to her case. He gave the claimant various options as to how she could provide this information, if she so wished. He explained that he had delayed the stress risk assessment in order to attempt to produce a more accurate assessment following on from the occupational health referral. He confirmed that he could do this as soon as the claimant was available as he prepared everything and was ready to do it following the cancelled appointment on 12 July. He reiterated that his primary priority and concern was the claimant’s welfare and expressed as much support as he was able to. He referred to the changes within the structure of the department since her absence from work had started. He expressed that the blend of new and existing team members had refreshed the department and that this had been positive. He expressed that the claimant could be included and involved in this to the degree that she felt comfortable. He continued, “I appreciate this may seem like a long way off or hard to imagine but wanted to mention it as we still see you a member of our team. Please let me know how you get on rearranging the appointment and Occupational Health are cc’d they could help you with this if you cannot get through to the number. I can also help if you would prefer. Take care Shelley, I hope this email helps to explain the reasons for the changes and if you need anything please get in touch.”

[127]Unfortunately, Mr Sugden’s email did not provide the reassurance to the claimant that he had hoped. She responded again by email on 5 July expressing the view that Occupational Health were not experts and would be passing comment on something that they have a little bit of knowledge about and that this could cause additional stress and anxiety. Her GP left comments to the experts and she indicated that Occupational Health had caused her enough stress and anxiety already. She felt that the delays were typical of the respondent putting off doing what needed to be done. She asserted that delays were making the depression worse and Occupational Health were causing more stress by being incompetent. She asserted that nothing had been done to bring about a return to work, and she felt no support had been given. She asserted that her counsellor was concerned that she was deteriorating because no progress was being made at work. She felt that the occupational health appointment delayed everything and was a step backwards as PAM were causing issues, not solving them. She didn’t have any trust in Occupational Health either. All in all, Mr Sugden’s attempts to support and reassure the claimant had not been successful if her correspondence is anything to go by. He provided a further reply to try and reassure her and tried to assist her in contacting PAM via the correct number. He then obtained a new telephone number and spoke to someone to reassure the claimant that she would be able to make the appointment over the phone.

[128]By the next day (6 July) the claimant had decided that, in the end, a telephone appointment would be preferable after all. She had found the previous day stressful. She asked if the appointment with Occupational Health could be changed to a telephone consultation. He responded the same day and said that the claimant could change it to a telephone consultation but indicated that an in-person appointment would be preferable. In her response to this the claimant suggested that she did not remember agreeing to a face-to-face appointment. She said that she would not have agreed to going to the appointment and the planned location because of the travelling. She just thought another appointment would take place with someone who would have a full discussion rather than someone ‘making assumptions’ and ‘generalised statements.’

[129]Having reviewed all the available documentation, I do not consider it fair of the claimant to criticise Mr Sugden for arranging an in-person appointment given the criticisms she had levelled at the previous occupational health report, particularly that it had been based on a telephone consultation and that the person writing the report was not adequately qualified to do so. Mr Sugden had, in good faith, attempted to address her concerns by converting it to an in-person consultation (so that an examination could be undertaken) and by addressing the qualifications of the person carrying out the assessment (for example, avoiding a trainee.) Unfortunately, this had, of necessity, involved further delays. It may well be the case that the claimant could not remember this part of her communication with Mr Sugden, but a review of the email correspondence confirms that he was acting in response to her earlier expressed concerns and criticisms of the process, including that the report was following a phone consultation and was prepared by a trainee.

[130]The claimant reiterated that she did not see the point of the appointment being in person and that she felt PAM were unhelpful. She was unhappy that the workplace risk assessment had been postponed to accommodate Occupational Health. In response to the claimant’s concerns Angela Garside emailed her to explain the rationale for the arrangements that were being made and to try and put the claimant’s mind at rest. Mr Sugden again provided reassurance on 7 July in an email. In particular, he said, “Please do not assume the PAM doctor will not believe you are depressed. The doctor will meet you and work with your GP’s recommendations plus other information to assess your health.” He confirmed the details of the appointment that had been made. He said that if the claimant could not drive, the respondent could arrange transport to get the claimant to and from the appointment. He confirmed that he could do the stress risk assessment sooner if the claimant wanted and update it as a ‘live document’ after the appointment with the PAM doctor. He concluded, “Sorry to read you feel the organisation does not care and I want to assure you we do.”

[131]It is fair to say that the claimant’s response to this was not particularly accepting of Mr Sugden’s point of view. She reiterated many of the concerns she had already stated. She concluded with a general complaint about the respondent’s failures in handling her absence. She complained that the occupational health recommendations from 30 March had not been actioned. She concluded, “I am now at a point where I do not even trust the organisation as it has caused me so much harm. The Chief talks about mental health being a priority but it clearly is not. I have even contacted Leon Parkes and he could not care less about it. I now feel helpless and lost.”

[132]The correspondence between the claimant and Mr Sugden continued in a similar vein. The claimant emphasised that she wanted to get on with the workplace risk assessment and the recommendations from the 30 March occupational health report. By 9 July she was confirming that her GP recommends that she leave the organisation because it causes too much harm. On 10 July Mr Sugden reassures the claimant and says that the risk assessment can be done on 12 July.

[133]On 12 July the claimant met Mr Sugden to carry out the stress risk assessment. The stress risk assessment form was filled out during the discussion between the claimant and Mr Sugden. The format of the document meant that it could be updated as and when required. The claimant maintained that it did not address the barriers that she faced in returning to work. The document set out various measures that were already in place to assist the claimant, alongside further measures that were required. The discussion took place at Rochdale Fire Station in a private office. During the meeting the parties discussed additional measures to manage, reduce or eliminate workplace stress and agreed who was to have responsibility for each element. Many of the elements had dual or joint ownership so that the manager and team member were working together. They agreed, for example, to put a workplace buddy in place for the claimant.

[134]The meeting took longer than anticipated. Mr Sugden offered the claimant breaks and asked her how she was finding the process. The claimant did not indicate that it was too much for her. That said, I accept that now she had got to the point of actually having the meeting, she would want to proceed and complete the process without any further unnecessary delay. The claimant brought water with her but did not bring any lunch to the meeting. There were breaks throughout the meeting, for example, so Mr Sugden could eat lunch or make a drink. Mr Sugden explained that this was a “living document” and that the claimant should make amendments to it, if required.

[135]I accept that the claimant had been out of the business for some significant period of time and was therefore wary about the organisational change that had been going on in her absence. She was concerned that she had not been kept up to date with what had been going on. The claimant was reluctant to accept that changes may in fact have removed previous stressors in the workplace. This was perhaps understandable, although the claimant was not best placed to know how things were now working in practice given the length of time that she had been absent from work. One of the issues discussed in the meeting was a return to work plan to support the claimant back into work. This was intended to include a period of retraining and refreshing knowledge, with appropriate workload management and realistic expectations from management towards the claimant. The issue of bullying was to be addressed through the grievance process. Mediation was also suggested to improve relationships.

[136]The outcome to the claimant’s grievance was completed on 18 July. The grievance was partially upheld, and recommendations were made for mediation and the extension of the claimant’s entitlement to full occupational sick pay. The findings in the grievance included that no formal one-to-ones had been completed in the timeframe requested by the claimant between September and December 2022. She had requested these in emails to her line manager, and this part of the grievance was upheld. The claimant alleged that whilst absent from work she received little or no support from her line manager. It was accepted that there was no agreement for regular contact arranged in line with policy. Contact was completed by email due to a lack of an accessible phone contact method for the claimant. The grievance also found that support was offered to the claimant via Occupational Health once the reason for the absence on the fit notes changed from the TIA to work-related stress. This element of the grievance was also partially upheld.

[137]There was an allegation that the occupational health referral had not been made in line with policy. An occupational health referral should have been made within 21 days but was not. This part of the grievance was upheld. There was an allegation that bullying was reported three times between September and December 2022 and no action was taken. This part of the grievance was upheld but a recommendation was made that mediation should take place in order to repair the working relationship going forward. It was noted that this would need the consent of both parties. The grievance also recommended that the claimant’s entitlement to full sick pay should be extended due to the inconsistencies in support and procedures not being followed correctly. Whilst the recommendation was that pay should be extended, the person managing the grievance did not have the authority to actually extend the sick pay entitlement, only to recommend that this be done. The extension of pay required authorisation and approval at a higher level of management. It turns out that the request was made but not approved.

[138]As part of the outcome, it was suggested that Joy Nichols would support Mr Sugden in implementing the capability process to assist in a return to work for the claimant once she received the grievance outcome.

[139]During the course of the Tribunal hearing Ms Wilson was asked why she did not give any explanation for her conclusions in the outcome letter. Her response was, effectively, that she only needed to give an explanation if part of the grievance was not upheld in the claimant’s favour. Where the grievance was upheld, then there was no need for her to give detailed reasoning and explanation for this.

[140]The claimant had the right to appeal within ten working days of the grievance outcome. On 19 July the claimant emailed Mr Sugden to say that she had received the grievance outcome, was not happy with it and would be taking it to stage II (i.e. an appeal). She indicated that she was now complaining about Bjorn Burdsall not doing his job, in addition to her previous complaints about Mr Hodson.

[141]On 20 July Mr Sugden recommended that the claimant try and meet with Ms Wilson (the grievance manager) in order to understand the basis for the decision. He pointed out that the grievance had been upheld and so, overall, it should be helpful to her. The claimant had a different point of view and felt that many issues had not been addressed and that the stress risk assessment needed amending to address those unresolved matters. By this stage the claimant referred to having sought or seeking legal advice.

[142]There was a telephone call between the claimant and Mr Sugden on 21 July and Mr Sugden sent an email summary of what was discussed. It referred to an arrangement for Ms Wilson to talk to the claimant on 1 August about the process and next steps in order to answer some of the claimant’s questions. It confirmed that the claimant was willing to pursue mediation, although she had concerns that the other party would not agree to this. Mr Sugden sought to reassure her about this. He also sought to reassure her that bullying would be addressed during a conversation with Ms Wilson. He also discussed who could provide support to the claimant during his absence from work. He suggested that the claimant should change her answerphone message to say that she was away from work and not available to deal with fire safety issues as her current answerphone message asked callers not to leave the message as it would not be replied to. Mr Sugden recorded that the claimant liked the freedom of not having a landline or personal mobile phone. She only had her workplace mobile phone. Mr Sugden was attempting to find a way of assisting the claimant in managing phone calls so that she did not feel obliged to pick up calls for work related reasons when she was on sickness absence. He also wanted to ensure that she was contactable, as appropriate, for the purposes of the employment processes and procedures which related to her.

[143]On 23 July the claimant appealed against the grievance outcome. She says that she did this due to inaccuracies in the report and the fact that the main reason for the grievance had not, in her view, been addressed at all.

[144]On 24 July the claimant’s trade union representative emailed, having read the grievance outcome, and noted that it was exactly what they had wanted. He stated, “I think the outcome is exactly what we wanted, the letter upholds your concerns and the grievance points you raised, which is what we wanted-which ultimately suggests they admit the processes and support was not provided. The fact they are also recommending full pay entitlement be extended also demonstrates processes were not followed. What you will not get from the grievance is a reason or what the next steps would be for the person or people that are deemed responsible for not following the correct procedures (this will be dealt with privately and is not something they could discuss.) I think this proves you are correct in bringing this grievance albeit, it shouldn’t have got to this point. Can I suggest you discuss the outcome letter with Alex and use this to support your return back to the workplace at a pace agreed between yourselves. Hope this starts to bring an end to the uncertainty.”

[145]The claimant was upset that the trade union representative breached her confidentiality as Mr Sugden was copied in to the union representative’s email. She emailed Mr Sugden on 27 July to express her views about a breach of confidentiality by the trade union. She also confirmed that she had cancelled the meeting with Ms Wilson so that the appeal could go ahead. She also asked to agree a set date and time for calls because she said she was worried that she would miss them. Up until that point in time, she and Mr Sugden had been agreeing the date and time for the next call at the end of the previous one.

[146]Around 3 August there was a challenge to the date of the occupational health appointment, and it was rearranged. On 4 August the claimant attended a GP appointment and obtained a further fit note covering 8 weeks, citing mixed anxiety and depressive disorder.

[147]The claimant met with Mr Sugden via Microsoft Teams on 7 August. Mr Sugden says that it was a catch up meeting. He summarised the contents of the discussion as he saw them in an email sent to the claimant on 9 August. He recorded that the claimant had cancelled her meeting with Jane Wilson (to get an explanation of the grievance outcome letter) because she wanted to pursue the grievance to stage II level and she felt that the meeting would prevent this from happening. The claimant stated that she felt that the outcome to the grievance was not factual and did not address parts of the grievance originally submitted. Mr Sugden explained that the meeting that had been planned with Ms Wilson was actually to allow the claimant a full explanation of the process and would not prevent her from pursuing an appeal. The opportunity to meet with Ms Wilson was still there but the claimant declined this offer and advised that she had gone to stage II (appeal) whilst Mr Sugden had been on annual leave. There was a discussion about timescales within the grievance policy not being followed. It was noted that the investigating officer was due to get in touch with the claimant now that they had been nominated.

[148]The claimant told Mr Sugden that she had changed trade unions but would not disclose which union she had now joined. The claimant advised Mr Sugden that the new trade union would not be able to represent her during the ongoing process. (The reason that the claimant had left the Fire Officers Association was because her representative had copied Mr Sugden into the email where the representative gave his views on the grievance outcome.) Mr Sugden said that he would not read the email in question and that he had not read that email to date. Mr Sugden also confirmed that the claimant was approaching the threshold for moving to stage I of the capability process and that he would send a letter through the post. They agreed on the time, date and venue for the meeting and the claimant was told of her right to bring a supportive colleague or representative to the meeting. There was some discussion about how long the extension to the claimant’s sickness would go on.

[149]The claimant also raised the bullying section of her grievance and Mr Sugden explained that one of the remedies was mediation, which does take time. He had sought confirmation this was being progressed and so he expected to hear about it soon. If she did not hear from anyone about it then she should let him know so that he could follow it up. The claimant had asked Mr Sugden to add discrimination to her workplace risk assessment and he agreed that he would. He also said that they should meet to review the risk assessment as it was a live document. The claimant had also talked about low morale within the team but Mr Sugden commented that this was not backed up with any real information, by which he meant examples. He explained the changes that were taking place in the department. What he was trying to express was that the claimant was not present in the workplace at that time and so was not in a position to get a balanced view of the team’s morale. He had wanted the claimant to give him examples so that he could address them in a meaningful way, but such examples were not forthcoming. In discussing the topic, he had advised the claimant not to listen to “tittle tattle.” He apologised for that terminology as it was not appropriate. It was his way of trying to make the point that listening to office gossip when the claimant was not yet back at work was not going to assist her in recovering and becoming fit to return to work. He was trying to explain that a lot had changed in her absence and that she would not necessarily know about these changes. He asked for specific details of morale problems so that he could address them, but the claimant did not give specifics. Without such specifics he would struggle to take action to address the issues raised. He asked the claimant to speak to the people concerned and tell them/advise them to come forward for support from an appropriate manager or from the employee assistance programme.

[150]Mr Sugden used the term “tittle tattle” and apologised straight away and corrected his language. I accept that it was a poor choice of language, but I find that he was trying to make a valid point in the circumstances of the case. The claimant had not been in work and the claimant and the respondent were working towards her return to work. It was, therefore, unhelpful for her to listen to other people’s complaints about morale (and potentially undermine her own return to fitness) unless there was something specific that Mr Sugden could address. Without something specific to address, he could not allay her concerns. This could put another barrier in the way of the claimant’s recovery and her return to work. As she hadn’t been in the workplace, she could not assess the situation and see for herself whether morale was as poor as it was reported to be. The claimant’s colleagues’ complaints may or may not have been justified but Mr Sugden was trying to advise the claimant to focus on her own best interests rather than getting sidetracked by the complaints of others. This was a legitimate message for Mr Sugden to try and convey, although it was clumsily done. The choice of terminology could be described as dismissive of colleagues’ concerns, if viewed out of context. However, he made the comment in the context of having already tried to get specific information or examples to address and resolve. If he had said, without testing it first, that it was “just” tittle tattle, that would disclose a dismissive or uncaring or unsupportive attitude. However, that is not what had happened. He had tested the assertion to see if it had substance (though examples) before he referred to it as ‘tittle tattle.’ The claimant took this choice of language as a personal slight to her, as a criticism of her. I find that it was not intended that way. Given the claimant’s anxiety it is perhaps understandable that she viewed the comment in this way but, in fact, he was not dismissing her concerns. If his comments were critical of anyone, they were critical of the other staff who were complaining to the claimant during her sickness absence, but who were not prepared to come forward to get the perceived issues resolved. I consider that the claimant has misconstrued Mr Sugden’s comments, albeit this is perhaps understandable given the state of her health at the time.

[151]During the call the claimant and Mr Sugden agreed a further catch-up call to take place on 11 August. Mr Sugden expressed the hope that the claimant’s occupational health appointment was productive and indicated that he would share the report as soon as he received it.

[152]After the phone call, Mr Sugden arranged for the claimant to be sent a letter inviting her to a capability meeting to take place on 30 August at Rochdale Fire Station.

[153]The claimant responded to Mr Sugden’s email summarising the 7 August discussion in her own email of 9 August. He responded to this on 11 August. He set out the issues that he had followed up for the claimant after the discussion and again apologised for using the term “tittle tattle.” He reiterated his explanation for that term. He explained that he had tried to follow up and make improvements with the team. He reiterated that he had asked for regular prearranged times to call the claimant and she had said she did not want to do that, so they had just decided to catch up regularly. He indicated that they could discuss again (at the next meeting) what the claimant was comfortable with in terms of arrangements for regular contact. Whether the claimant was happy with Mr Sugden’s response or not, it seems to have been a genuine attempt to respond to the concerns raised. The claimant may well consider it to have been “too little too late” but Mr Sugden was doing his best in the circumstances given that he had inherited a situation where the claimant had lost faith in his predecessor, Mr Hodson.

[154]On 11 August there was a welfare call between the claimant and Mr Sugden during which it was agreed that future contact would be weekly, on Wednesdays. The claimant had previously said that she did not like being unable to predict the timing of the call. Mr Sugden agreed that the calls would take a maximum of one hour each time and that the claimant was still free to phone him at other times as well, if she felt the need to. The weekly call was intended to be a minimum level of contact rather than a maximum. There was due to be an absence of two weeks. The claimant and Mr Sugden agreed to meet at Rochdale on 29 August in order to update the workplace risk assessment and have a catch up. He confirmed that mediation was still planned and confirmed that he would ask for a timescale and other information to be provided to the claimant by whoever was organising the mediation. In response, the claimant indicated that she was switching her phone and laptop off because she felt she needed a break as she had had her mobile phone switched on all the time that she had been on sick leave. This meant that she had not had a break from work emails which had contributed to stress. She felt she needed a complete break from work-related matters. Mr Sugden noted and acknowledged the clarification.

[155]The claimant explained to the Tribunal that she felt that she was being forced to agree to weekly phone calls even though she thought that this was excessive in the circumstances. The issue seems to be that the claimant says that this was foisted on her rather than being something that she agreed to freely. On balance, I accept that this arrangement was made in response to the claimant’s previous request for predictability so that she knew when to expect a call. Mr Sugden was endeavouring to find an acceptable balance between the need for predictability and regularity of contact, as balanced against a desire not to ‘pester’ the claimant or put her under any unnecessary pressure. He could be criticised whichever route he took. If he did not maintain adequate contact with the claimant, she would have legitimate grounds to complain that he was acting in the same way as Mr Hodson (which she had complained about). On the other hand, if the contact were too regular, frequent or predictable, the claimant could find it burdensome or intrusive. Getting an appropriate balance between rest time and supportive contact is a difficult task. There was an additional difficulty in this case as the claimant only had one telephone, which was her work phone number. The claimant was, of course, free to choose not to get a personal phone. However, that meant that she would have to keep her phone switched on even when she was absent from work in order to receive personal phone calls. This would open her up to the risk of being contacted in relation to work when she was trying to recover at home on sick leave.

[156]The claimant’s email of 21 July had confirmed that she wanted to arrange a set date and time for the phone calls so that they did not get missed. She believed this to be the correct procedure. She chased this up and reiterated the request for a set date and time for contact in an email to Mr Sugden on 7 August.

[157]The third occupational health report was produced dated 12 August. The consultation had been carried out via Microsoft Teams video call. The claimant has told the occupational health advisor that she had a diagnosis of anxiety and depressive disorder, work-related stress, as well as a number of underlying physical health conditions which she had developed over the last few years which she believed were all triggered by stress. She said that at the time of onset, she did not realise that they were all stress-related. She reported that she experienced ongoing episodes of heart palpitations 5 or 6 times a day. An ECG had been carried out, and a heart monitor was due to be fitted. She informed the adviser that she was advised to avoid stress until her blood pressure was under control. The claimant disclosed to the adviser that she experienced severe levels of stress and anxiety in 2018 or 2019, which she felt were triggered by an incident that had happened at work when she was concerned that she was at risk of having a heart attack due to very high blood pressure. She also reported that she was diagnosed with depression in 2018, which she attributed to stress at work. She reported that she felt discriminated against and reported ongoing worries about the way she was treated at work, indicating that bullying started last August and issues had still not been dealt with. She confirmed that she had submitted a grievance and subsequently had had a stress risk assessment undertaken in mid-July 2023. The adviser continued, “She described experiencing ongoing depression and anxiety symptoms, poor sleep with little energy every day, constant worrying and feelings of “mental pain” every day, as well as forgetfulness. She denied having suicidal thoughts but said that counselling helps her cope with thoughts of self-harm and said that she has never self-harmed. She receives private counselling every two weeks and said she is still on the NHS waiting list for counselling. She also receives support from her daughter and remains under regular GP follow-up. She reported to me that her GP increased the dosage of her antidepressant medication last week.”

[158]The occupational health opinion was that the claimant continued to experience high levels of anxiety symptoms and severe levels of depression symptoms. The view was that her medical situation remained complex due to a multitude of mental and physical health symptoms and it appeared that her work-related stress issues were long-standing. The specific clinical details of her conditions and current medications were documented in the clinical notes stored confidentially on her PAM occupational health file. She was awaiting further cardiac investigations which might clarify what steps might be taken in terms of further management. At the time of writing, the ongoing unresolved symptoms were likely to significantly interfere with her ability to undertake all work duties and, in the occupational health advisor’s opinion, the claimant would need further intervention to resume a level of wellbeing consistent with a return to work. The advice to management was that the claimant remained unfit for work in any capacity due to her ongoing mental health symptoms and associated physical health symptoms. The adviser was unable to estimate a likely return to work date. The history revealed ongoing perceived workplace stressors which Occupational Health could not refute or confirm, however the report continued, “However, I am of the opinion that an early resolution of the issues might be the first step in preventing further psychological deterioration so I would advise the employer to sort this out as soon as possible. I would strongly recommend that it will be beneficial to arrange an empathetic meeting at a date and time mutually agreed upon between her and management to update the Stress Risk Assessment to fully understand the impact of real or perceived workplace stressors so these can be addressed.” The report went on to suggest adjustments for support during any work meetings. These included giving the claimant adequate notice and time to prepare, allowing regular breaks during the meeting to manage symptoms and allow her to compose herself, and to provide written information or an explanation prior to the meeting. The report recommended that she be re-referred for an occupational health follow-up once she had had a further cardiac investigation and input from her GP which might further clarify therapeutic plans. It would be appropriate to review her prior to consideration of any return to work to assess the need for adjustments and support for her role going forward. Dr Gram signed off, indicating that there were no dates for an occupational health review and that she would await any further instructions in relation to such a review.

[159]By letter dated 16 August the claimant was invited to attend a grievance appeal hearing to be held at Rochdale station. She was offered the right to be accompanied.

[160]On 18 August Mr Sugden emailed the claimant as he had received the occupational health report. He commented that the contents of the report apparently aligned with what he was doing to support the claimant. The claimant responded to this email on 22 August and said that she did not think that the occupational health consultation was productive for her and alleged that it had caused her stress and anxiety. She felt that the information in the report did not need to be shared to the respondent and she referred to triggering suicidal thoughts and concerns. The claimant stated that she would not discuss mental health with anyone from the respondent, including Occupational Health. (It was unclear how the respondent was expected to manage the claimant and get her back to work in such circumstances.)

[161]The grievance appeal hearing took place on 23 August. It was conducted by Stephen Jordan. In advance of the hearing, Mr Jordan read all of the relevant documents associated with the previous grievance appeals process, including the initial decision, supporting evidence, and any additional information submitted by the claimant. The claimant was not accompanied at the meeting. The claimant was asked if she had any further comments in relation to each aspect of her appeal.

[162]On 29 August the claimant had a further meeting with Mr Sugden in order to update the stress risk assessment. The meeting lasted for 4 hours. Mr Sugden sent out a summary of the discussion in an email. I accept that Mr Sugden offered the claimant regular breaks and said that if they needed to finish and come back on another day, then the claimant should say so. However, I also accept that the claimant wanted to finish the meeting the same day. This may or may not have been in her own best interests, given the length of the hearing. On the other hand, it would be difficult for Mr Sugden to assess whether the claimant really agreed to a lengthy meeting of her own free will or was just doing her best in the circumstances. The suggestion, which is dealt with below, is that the claimant felt obliged to continue and complete the meeting even if it was too long and that this was a consequence of her mental health state at the time. The suggestion is that it should have been obvious to Mr Sugden that a four hour meeting was objectively unreasonable and too long in all the circumstances.

[163]During the course of the meeting Mr Sugden provided a list of resources which was intended to help support the claimant. It was well-intentioned, although the claimant considered it to be of limited use. Even Mr Sugden accepted that the meeting took longer than he had planned but his position was that the claimant had the option to say that she wanted to stop. During the meeting the claimant indicated that every time she had contact with the respondent, she needed to book a counselling session. In effect she was saying that weekly contact calls were too much because she now needed to recover and get counselling every time she had contact with the respondent. Mr Sugden had a conversation about managing the team and allocating resources appropriately whilst managing and caring for stress levels and mental wellbeing. He acknowledged the need to address morale issues within the workforce. In the follow-up email after the meeting Mr Sugden indicated that he had contacted relevant people to see if it was possible to remove private details from the occupational health report.

[164]Mr Sugden had not seen the claimant’s email of 5 February 2023 but still maintained to the Tribunal that the stress risk assessment addressed the issues that the claimant had raised, even if this was not done consciously and in response to the email itself.

[165]The claimant’s Stage I Capability Meeting took place on 30 August 2023. It was conducted by Mr Sugden with Joy Nichols from HR also present. It was expected to take up to 2 hours, with breaks. The claimant prepared a written statement which she read out at the start of the meeting. A copy of the written statement was contained within the Tribunal hearing bundle. It constituted a statement of her concerns. It contained a number of salient points. The claimant complained that the capability threshold extension time was not given to her even though she asked numerous times. She maintained that it was a breach of the capability policy to withhold that information from her. She reiterated her view that if Mr Hodson had done as he was supposed to, she would not have stayed on long-term sick leave. She asserted that she would not have had the TIA if Mr Hodson had done as he was supposed to. She ascribed the TIA to work-related stress and said that without these problems she would have been fit to return to work on 23 January 2023. She complained about Mr Burdsall’s handling of issues in the meeting on 25 April. She complained that she had had to raise a grievance and that the grievance was not handled properly. She complained about the impact of what she saw as problems with the occupational health reports and she complained about the failure to implement occupational health recommendations. She referred to the failure of the respondent to address the bullying complaint, which she said she had reported in September, October, and December 2022. She indicated that she felt that the actions indicated that management did not want her to return to work at all.

[166]A further meeting was scheduled for 6 September to focus on the claimant’s wellbeing. Mr Sugden provided a work-life support checklist explaining its purpose and allowing the claimant to take it away for independent reflection before the meeting.

[167]Mr Sugden emailed the claimant on 30 August with an outcome letter. Notes from the meeting were also produced. He also emailed the wellbeing team in relation to the claimant’s occupational health report following her concerns about what she considered to be confidential information.

[168]Mr Sugden referred to an agreed action plan about how the claimant would achieve a return to her substantive role with the support of the respondent. He asked the claimant to confirm her agreement with the summary. During the course of the meeting Mr Sugden advised the claimant that they would continue to review her situation for a period of 3 months, with effect from the date of the meeting. The capability period was therefore due to expire on 30 November 2023. During the review period Mr Sugden and the claimant would meet on a regular basis to review progress and discuss any areas where additional support was identified. As an outcome of the meeting, Mr Sugden advised the claimant of further steps that may be taken should the claimant be unable to achieve a return to work. This would result in a referral to a Stage II Capability Review Meeting. The letter confirmed that the claimant was entitled to appeal against decisions made as an outcome to the meeting and that she had 7 days to exercise the right of appeal. The letter set out the criteria which grounds of appeal must meet.

[169]Mr Sugden also sent a follow-up email regarding the discussions during the meeting. He indicated that he had contacted the wellbeing team in order to try and remove private details from the occupational health report. The email also addressed the extension to the six month sickness threshold being reached and the extension to sick pay. It also addressed the discussions surrounding low staff morale in the department.

[170]On 2 September the claimant emailed Mr Sugden indicating that weekly calls were too much. She also amended the risk assessment. She had not accepted the Friday phone call but thought it was unnecessary, given that they had already had a four hour meeting in order to do the risk assessment.

[171]On 3 September the claimant emailed Mr Sugden about the capability review meeting. On 4 September. Mr Sugden emailed the claimant regarding the claimant’s email about the stress risk assessment. He maintained that weekly calls were required. On 5 September Mr Sugden chased the wellbeing team to chase a response to the email about the PAM consultation report. He also responded to emails from the claimant.

[172]On 6 September, the claimant met with Mr Sugden to complete the Wellness Recovery Action Plan (“WRAP”). He also intended to discuss the outstanding concerns as recommended in the occupational health report of 30 March. The claimant was sent the documents in advance in order to review them. The aim of the meeting was for the claimant to express her concerns and for Mr Sugden to try and ensure that the respondent responded to them appropriately. The aim was to solve problems and ensure that her working conditions would be supportive on her return to work. The meeting was scheduled for 2 hours. Regular breaks were offered and at lunchtime Mr Sugden offered to stop the meeting. The claimant wanted to continue and complete the session. The meeting took 5 hours in total. The claimant felt that she was being forced to return to work even though she was not fit to do so. The claimant also requested a one-to-one meeting and this was booked for the following Monday. Mr Sugden emailed her a copy of the draft wellness action plan. He also attached a copy of the updated stress risk assessment with new input.

[173]Mr Sugden accepted in cross examination that it was his responsibility to stop the meeting sooner the then he in fact did. He also accepted that the duration of some of the meetings was stressful to the claimant. Mr Sugden explained to the Tribunal that the purpose of the WRAP was to provide a structured and supportive approach to planning for the claimant’s wellbeing and any future return to the workplace. He maintained that it was never intended as a condition of return nor was it pursued as a response to the grievance raised on 13 June. He asserted that the WRAP was not linked to the content of the grievance and was not a reaction to it. Rather it was part of the broader health support strategy and was applied in a consistent and empathetic manner.

[174]On 7 September the claimant emailed Mr Sugden asking for meetings to be limited to 90 minutes in duration. There were a series of further emails following up from the meeting where each participant updated or commented in the body of the previous email. Mr Sugden attempted to reassure the claimant and address the concerns she raised. The claimant was not satisfied with the proposals by this stage. She referred to being “lied to” and felt that the respondent had behaved incompetently, unreasonably, and now deceitfully. There was a further email exchange between the claimant and Mr Sugden on 8 September and further exchanges on 10 September. The claimant started to think that mediation was not the correct solution and enquired whether there were other options. For his part, Mr Sugden attempted to provide a balanced picture of team morale.

[175]There was a weekly phone call with the claimant and Mr Sugden on 11 September, which the claimant maintains was not productive as it covered much of the same ground. There was further email correspondence from the claimant to Mr Sugden also on 11 September. Mr Sugden was suggesting a workplace buddy for the claimant when she returned to work. The correspondence continued through 12 September with each party seeking to respond to the other’s most recent email.

[176]On 18 September there was a weekly phone call between the claimant and Mr Sugden.

[177]On 19 September the claimant met with Mr Jordan to go through the outcome letter in relation to her appeal. In the course of the claimant’s appeal outcome, Mr Jordan acknowledged that a referral to Occupational Health was not completed within the timescale defined by the respondent’s attendance management policy. He concluded that, after her line management was changed in April 2023, the relevant attendance management processes had, in fact, been followed. He concluded that she had a positive working relationship with her then current line manager, as she herself had acknowledged at the appeal hearing. Mr Jordan noted that policy requires an employee to take responsibility for maintaining regular contact with managers, to provide updates on absence and to take all reasonable steps to improve and maintain attendance at work. Mr Jordan concluded that the claimant had not fully satisfied these responsibilities with her previous line manager by not regularly contacting him or querying the support that might be available to her. However, he acknowledged that her previous line manager failed to follow appropriate policies with regard to maintaining regular contact and he confirmed that this matter would be dealt with separately. He believed that, following the appointment of a new line manager, they had established regular contact, and the claimant did acknowledge that it was better. He made it clear to her that there was an equal responsibility on the employee to keep in contact with the manager, and he did not feel that this was happening. He felt that no further action was required on this in relation to the appeal process. He partially upheld this part of the appeal.

[178]In cross examination it was suggested to Mr Jordan that his appeal decision did not address the lack of support from Mr Hodson. He said that there was no mention of Mr Hodson in the appeal. He said that, upon trying to clarify the appeal with the claimant, his understanding was that the issue was with the implementation of occupational health recommendations and not with Mr Hodson. He did not recall hearing Mr Hodson’s name at all as part of the appeal and so he did not take it as a reference point. However, the notes from the meeting show that he was referred to during the meeting (entry/box number 36 on page 14 of the supplemental bundle.) Mr Jordan was also criticised for addressing the claimant’s failure to keep in contact given that this was not raised during the appeal hearing. His view was that he did not discuss it at the hearing because the appeal was partially upheld. He had acknowledged the respondent’s failures but was reiterating the employee’s responsibilities. He felt that including this in the outcome helped provide a rationale for partially upholding the appeal. He acknowledged that there had been mistakes but indicated that the new line manager was resolving this for the future.

[179]The second appeal point related to a lack of support from Occupational Health for the claimant. Mr Jordan noted that the claimant had had a Stepped Care Assessment on 30 March and Occupational Health consultations on 6 June and 10 August. He felt that various support had been offered but there was a difference of opinion between the claimant and Mr Jordan about what actually constituted support. He stated that EAP support had been offered and support for counselling had also been offered. It was correct not to offer overlapping counselling to the claimant as this could be detrimental to her overall as it might conflict with the counselling that she was already receiving. Basically, given her pre-existing counselling provision, it was not appropriate to provide counselling via PAM. Hence, he did not uphold this point of the appeal. There were discussions about various faults in the respondent’s approach but a reference to the fact that measures had now been put in place. The stress risk assessment was being implemented, albeit it had been delayed. Whilst the claimant did not see the point of the stress risk assessment, it was part of the support that was being offered to her.

[180]At appeal point 3 the claimant felt that the main part of her grievance had not been addressed. She felt that the recommendations in the report had not been addressed. Mr Jordan concluded that Mr Sugden had provided an open dialogue to the claimant to support and address concerns at the earliest opportunity. In relation to interpersonal difficulties, the claimant was offered mediation to help resolve the issues. Mr Jordan found that the following support measures had been put in place: a stress risk assessment as per the June occupational health recommendations; the Wellness Recovery Action Plan (WRAP) was implemented by the line manager on 6 September. He found that this was delayed due to a misunderstanding of the abbreviations used by two different occupational health providers. Mr Jordan upheld the third appeal point. He acknowledged the frustration at the failure to implement a Stepped Care report from March 2023. This had taken some time and had caused frustration. However, he felt that the new line manager was taking steps to address this now and was trying to resolve the outstanding measures. Mr Jordan felt that there was resistance from the claimant in accepting that steps were being taken to address and resolve issues.

[181]On 19 September, as part of the grievance appeal outcome, the claimant was told that her entitlement to sick pay had not, in fact, been extended. This formed part of the grievance appeal outcome. It was not entirely clear why this was included in the grievance appeal outcome. However, although an extension to sick pay had been recommended, the decision to implement the extension had to be taken by a different manager. That manager (whose identity is unknown) had taken the decision not to follow the recommendation regarding the extension of pay. This part of the grievance appeal outcome doubtless came as something of a surprise to the claimant, given the previous recommendation to extend sick pay and the absence of any further discussion about the extension of sick pay as part of her grievance appeal.

[182]The claimant was provided with a copy of the grievance appeal outcome letter dated 19 September.

[183]On 24 September the claimant emailed Mr Sugden alleging that he had put pressure on her regarding the wellness action plan.

[184]On 25 September there was a weekly catch-up call between the claimant and Mr Sugden. The claimant was not happy with the outcome of the grievance hearing and said that she was not getting the answers that she needed in order to be able to move on. As Mr Sugden was not conducting that procedure, he could not really address this for the claimant. The claimant says that she told Mr Sugden that her treating consultant said she had suffered a psychological trauma because of how she had been treated by the respondent and that this could lead to the onset of fibromyalgia and that she should prepare herself for such a diagnosis. The claimant accepted that she needed to move on in order to recover and return to work.

[185]On 29 September there was a mediation meeting. The mediation was unsuccessful and the parties withdrew from it. Recollections vary as to who was to blame for the failure of mediation. Given that the nature of mediation is that it is an attempt to facilitate reconciliation, it is perhaps unfair and unhelpful to refer to ‘blame’ in such circumstances or to try and apportion blame for the failure of a mediation.

[186]On 2 October the claimant attended her GP and obtained a further fit note referring to bullying and stress at work. On 3 October Mr Sugden confirmed via email that there would be a catch-up call on 9 October. He expressed sympathy regarding the outcome of the mediation. On 3 October the claimant also received her nil pay notification (i.e. notification that her entitlement to half pay would expire on 26 December.)

[187]On 4 October Ms Seex was provided with an update regarding the claimant’s appeal. She reviewed the outcome letter and asked for clarification from People Services in relation to the pay issue.

[188]On 5 October the claimant emailed Mr Sugden explaining what she felt caused the failure of the mediation. She felt that Ms Hoyle did not want to talk about her previous behaviour. On 8 October Mr Sugden emailed Ms Garside to see what further input there could be to support the claimant. There was also an email from the claimant to Mr Sugden saying that she did not feel able to trust the Wellbeing Team and EAP (the employee assistance programme) had nothing to offer her which would help.

[189]On 9 October there was a welfare catch-up call between the claimant and Mr Sugden which was summarised in an email from Mr Sugden. The claimant attended her GP on 11 October and there was email correspondence between the claimant and Mr Sugden on 13 October. On 15 October the claimant emailed Mr Sugden. By this stage it was not clear what else the claimant wanted the respondent to do. The mediation had not worked.

[190]On 16 October there was a welfare catch-up call. The claimant maintained that she did not want these weekly calls and felt that they duplicated previous discussions. The claimant was frustrated regarding the outcome of the bullying mediation, but it was still unclear what she wanted the respondent to do that had not already been attempted. There was a discussion about the fact that there should be relatively limited contact between the claimant and Ms Hoyle going forwards. Mr Sugden felt that weekly calls were still necessary in order to ensure that the claimant and her line manager kept in touch. Even so, he acknowledged that they were covering a lot of the same ground.

[191]On 19 October Mr Sugden maintained that there still needed to be weekly calls. The claimant emailed stating that weekly calls were affecting her counselling sessions. However, the respondent refused to reduce the frequency of these catch up calls. On 23 October there was a further welfare catch-up call. The claimant declined EAP assistance. There were further emails following this call. Mr Sugden tried to contact Mr Burdsall to see what was happening regarding the bullying allegation and try and piece together a timeline.

[192]On 24 October Mr Sugden’s email to the claimant suggested that she would have to make a formal complaint against Ms Hoyle in order to take things further. The claimant felt that she could not handle the stress of making such a formal complaint. The claimant attended a further GP appointment and obtained a fit note on 27 October. There was a further welfare catch-up call between the claimant and Mr Sugden on 30 October.

[193]On 3 November Ms Seex had a verbal conversation with Mr Sugden in relation to progress in facilitating the claimant’s return to work. She told him that she would reach out to the claimant the following week in order to make a further offer to meet with her. It was her understanding at that point that action had been taken in relation to the concerns that the claimant had raised through the grievance process.

[194]On 5 November the claimant cancelled the call that was scheduled to take place between her and Mr Sugden on 6 November.

[195]On 9 November the claimant emailed her resignation to Mr Sugden. He then forwarded it to Ms Seex. The resignation was acknowledged on 10 November and a meeting with Ms Seex was suggested. There was correspondence on 13 November suggesting that the claimant reconsider her resignation, but the claimant confirmed she would not be rescinding her resignation. The claimant’s resignation took effect, and her final pay slip included outstanding monies owed, including accrued holiday pay. THE LAW Knowledge of disability

THE LAW

[196]Paragraph 20(1) of Schedule 8 to the Equality Act 2010 indicates that the employer will only have a duty to make reasonable adjustments if it knows, not just that the relevant person is disabled, but also that the relevant person’s disability is likely to put him or her at a substantial disadvantage in comparison with non-disabled persons in relation to the PCP (etc.) . Knowledge is not limited to actual knowledge but extends to constructive knowledge (i.e. what the employer ought reasonably to have known). The EAT has held that a tribunal should approach this aspect of a reasonable adjustments claim by considering two questions:(1) Did the employer know both that the employee was disabled and that the disability was liable to disadvantage the employee substantially?

(2) If not, ought the employer to have known both that the employee was disabled and that the disability was liable to disadvantage the employee substantially? (Secretary of State for Work and Pensions v Alam

[2010] ICR 665

, EAT) It is only if the answer to the second question is also ‘no’ that the employer avoids the duty to make reasonable adjustments.

[197]An employer cannot claim that it did not know about a person’s disability if the employer’s agent or employee (for example, an occupational health adviser, HR officer, or line manager) knows, in that capacity, of the disability. The EHRC Employment Code makes it clear that such knowledge is imputed to the employer (see paragraph 6.21). The duty to make reasonable adjustments would still apply even if the disabled person asked the agent or employee to keep the information confidential. Employers must have a suitable confidential means of collating information about employees to ensure that they adhere to their duty to make reasonable adjustments. However, the Code confirms that information will not be imputed to the employer if it is gained by a person providing services to employees independently of the employer, even if the employer arranged for those services to be provided (see paragraph 6.22). The case law also shows that, depending on the particular circumstances of a given case and the way in which the adviser was instructed, there may be circumstances where the information/knowledge passed to the adviser will not be imputed to the respondent (e.g. In Hammersmith and Fulham London Borough Council v Farnsworth

[2000] IRLR 691

, EAT and in the EAT in Q v L EAT 0209/18 )

[198]When considering whether an employer is to be regarded as having constructive knowledge of a worker’s disability so as to trigger the duty to make reasonable adjustments, it is irrelevant that a formal diagnosis has yet to be made, so long as there are other circumstances from which a long term and substantial adverse effect of a mental or physical impairment can reasonably be deduced. While knowledge of the disability places a burden on employers to make reasonable enquiries based on the information given to them, it does not require them to make every possible enquiry, particularly where there is little or no basis for doing so (Ridout v TC Group

1998 IRLR 628

, EAT.) A failure by an employee or job applicant to cooperate with an employer’s reasonable attempts to find out whether he or she has a disability could lead to a finding that the employer did not know, and could not be expected to know, that the employee or job applicant was disabled.

[199]Even where an employer knows that an employee has a disability, it will not be liable for a failure to make adjustments if it ‘does not know, and could not reasonably be expected to know’ that a PCP, physical feature of the workplace or failure to provide an auxiliary aid would be likely to place that employee at a substantial disadvantage (paragraph 20(1)(b), Schedule 8 Equality Act)

[200]In the context of a claim of discrimination because of something arising from disability, section 15(2) means that an employer will not be liable for section 15 discrimination if it did not know and could not reasonably have been expected to know of the employee’s disability.

[201]The EHRC Employment Code states that an employer must do all it can reasonably be expected to do to find out whether a person has a disability (paragraph 5.15). What is reasonable will depend on the circumstances. This is an objective assessment. It suggests that ‘Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a “disabled person”’ (paragraph 5.14)

[202]Failure to enquire into a possible disability is not by itself sufficient to invest an employer with constructive knowledge. It is also necessary to establish what the employer might reasonably have been expected to know if it had made such an enquiry. A Ltd v Z

[2020] ICR 199

[2019] IRLR 952

shows that determining whether an employer had constructive knowledge involves a consideration of whether the employer could, applying a test of reasonableness, have been expected to know, not necessarily the employee's actual diagnosis, but of the facts that would demonstrate that he had a disability, namely that he was suffering a physical or mental impairment that had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. The burden is on the respondent to make reasonable enquiries based on the information given to it. It does not require them to make every possible enquiry even where there is no basis for doing so. The failure by an employee to co-operate with the employer’s reasonable attempts to find out whether the employee is disabled could lead to a finding that the employer did not know and ‘could not reasonably be expected’ to know.

[203]The employer must have the requisite knowledge of disability at the time it treats the employee unfavourably. If the treatment complained of is made up of a series of distinct acts occurring over a period, it is necessary to consider not only whether the employer had the requisite knowledge at the outset but also, if it did not, whether it gained that knowledge at any subsequent stage when the treatment was ongoing.

[204]While lack of knowledge of the disability itself is a potential defence to a section 15 claim, lack of knowledge that a known disability caused the ‘something’ in response to which the employer subjected the employee to unfavourable treatment is not (City of York Council v Grosset

[2018] ICR 1492

, CA).

[205]The relevant applicable principles are helpfully summarised by Eady J at paragraph 23 of the judgment in A Ltd v Z

[2019] IRLR 952

. Direct Discrimination

[206]Section 13 Equality Act 2010 states: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[207]Section 23 of the Equality Act 2010 provides: (1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case…

[208]In some cases it may be appropriate to postpone consideration of whether there has been less favourable treatment than of a comparator and decide the reason for the treatment first. Was it because of the protected characteristic? (Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL; Stockton on Tees Borough Council v Aylott)

[209]The claimant must show that they received the less favourable treatment ‘because of’ the protected characteristic. In Nagarajan v London Regional Transport

1999 ICR 877

, HL Lord Nicholls stated: “a variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds… had a significant influence on the outcome, discrimination is made out’.”

[210]The judgment in R (on the application of E) v Governing Body of JFS and the Admissions Appeal Panel of JFS and ors

2010 IRLR 136

, SC summarised the principles that apply in cases of direct discrimination and gave guidance on how to determine the reason for the claimant’s treatment. Lord Phillips emphasised that in deciding what were the ‘grounds’ for discrimination, a court or tribunal is simply required to identify the factual criteria applied by the respondent as the basis for the alleged discrimination. Depending on the form of discrimination at issue, there are two different routes by which to arrive at an answer to this factual inquiry. In some cases, there is no dispute at all about the factual criterion applied by the respondent. It will be obvious why the complainant received the less favourable treatment. If the criterion, or reason, is based on a prohibited ground, direct discrimination will be made out. The decision in such a case is taken on a ground which is inherently discriminatory. The second type of case is one where the reason for the decision or act is not immediately apparent and the act complained of is not inherently discriminatory. The reason for the decision/act may be subjectively discriminatory. In such cases it is necessary to explore the mental processes, conscious or subconscious, of the alleged discriminator to discover what facts operated on his or her mind.

[211]The relevant comparator must not share the claimant’s protected characteristic. There must be no material difference between the circumstances relating to each case. The circumstances of the claimant and the comparator need not be identical in every way. Rather, what matters is that the circumstances which are relevant to the claimant’s treatment are the same or nearly the same for the claimant and the comparator (paragraph 3.23 EHRC Employment Code.) With the exception of the prohibited factor (the protected characteristic) all characteristics of the complainant which are relevant to the way his case was dealt with must be found also in the comparator. They do not have to be precisely the same but they must not be materially different. (Macdonald v Ministry of Defence, Pearce v Governing Body of Mayfield Secondary School

[2003] ICR 937

). Whether the situations are comparable is a matter of fact and degree (Hewage v Grampian Health Board

[2012] ICR 1054

.) Section 15: Discrimination arising from disability.

[212]Section 15 Equality Act 2010 states:(1) A person (A) discriminates against a disabled person (B) if- (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[213]Four elements must be made out in order for the claimant to succeed in a section 15 claim:(i) There must be unfavourable treatment. No comparison is required.

(ii) There must be something that arises ‘in consequence of the claimant’s disability.’ The consequences of a disability are infinitely varied depending on the particular facts and circumstances of an individual’s case and the disability in question. They may include anything that is the result, effect, or outcome of a disabled person’s disability. Some consequences may be obvious and others less so. It is question of fact for the tribunal to determine whether something does in fact arise in consequence of a claimant’s disability.

(iii) The unfavourable treatment must be because of (i.e. caused by) the something that arises in consequence of the disability. This involves a consideration of the thought processes of the putative discriminator in order to determine whether the something arising in consequence of the disability operated on the mind of the alleged discriminator, whether consciously or subconsciously, at least to a significant extent.

(iv) The alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim. See Secretary of State for Justice and another v Dunn EAT 0234/16.

[214]Treatment cannot be ‘unfavourable’ merely because it is thought that it could have been more advantageous or is insufficiently advantageous (The Trustees of Swansea University Pension & Assurances Scheme and anor v Williams

[2015] IRLR 885

;

[2017] IRLR 882

and

[2019] IRLR 306

[215]The consequences of a disability ‘include anything which is the result, effect or outcome of a disabled person’s disability.’ Some may be obvious, others may not be obvious (paragraph 5.9 EHRC Employment Code 2011).

[216]Following the guidance given in Pnaiser v NHS England

[2016] IRLR 170

at paragraph 31 the correct approach to a section 15 claim is:(a) A tribunal must first identify whether there was unfavourable treatment and by whom. No question of comparison arises.

(b) The tribunal must determine what caused that unfavourable treatment. What was the reason for it? An examination of the conscious or unconscious thought processes of A is likely to be required. There may be more than one reason or cause for impugned treatment. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.

(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is irrelevant

(d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is ‘something arising in consequence of B’s disability.’ That expression ‘arising in consequence of’ could describe a range of causal links. The causal link between the something that causes unfavourable treatment and the disability may include more than one link. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact. This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.

(e) The knowledge that is required is knowledge of the disability only. There is no requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. (See also City of York Council v Grosset

[2018] ICR 1492

(f) It does not matter precisely in which order these questions are addressed. Depending on the facts, a tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of ‘something arising in consequence of the claimant’s disability.’ Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to ‘something’ that caused the unfavourable treatment.”

[217]The first limb of the analysis at section 15(1)(a) is to determine whether the respondent treated the claimant unfavourably “because of something arising in consequence of the claimant’s disability”. This analysis requires the tribunal to focus on two separate stages: firstly, the “something” and, secondly, the fact that the “something” must be “something arising in consequence of B’s disability,” which constitutes a second causative (consequential) link. It does not matter in which order the tribunal takes the relevant steps (Basildon & Thurrock NHS Foundation Trust v Weerasinghe

[2016] ICR 305

at paras 26-27) also City of York Council v Grosset

[2018] IRLR 746

paragraph 36).

[218]When considering an employer’s defence pursuant to section 15(1)(b) the ‘legitimate aim’ must be identified. The aim pursued should be legal, should not be discriminatory in itself, and must represent a real, objective consideration. The objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. (Bilka-Kaufhaus GmBH v Weber von Hartz

[1986] IRLR 317

[219]The question as to whether an aim is “legitimate” is a question of fact for the tribunal. The categories are not closed, although cost saving on its own cannot amount to a legitimate aim (Woodcock v Cumbria Primary Care Trust

2012 ICR 1126

[220]Once the legitimate aim has been identified and established it is for the respondent to show that the means used to achieve it were proportionate. Treatment is proportionate if it is an ‘appropriate and necessary’ means of achieving a legitimate aim. A three- stage test is applicable to determine whether criteria are proportionate to the aim to be achieved. First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective? (R(Elias) v Secretary of State for Defence

[2006] IRLR 934

[221]Determining proportionality involves a balancing exercise. An employment tribunal may wish to conduct a proper evaluation of the discriminatory effect of the treatment as against the employer’s reasons for acting in this way, taking account of all relevant factors (EHRC Code paragraph 4.30). The measure adopted by the employer does not have to be the only possible way of achieving the legitimate aim, but the treatment will not be proportionate if less discriminatory measures could have been taken to achieve the same objective (see EHRC Code (para 4.31). It will be relevant for the tribunal to consider whether or not any lesser measure might have served the aim.

[222]The principle of proportionality requires the tribunal to take into account the reasonable needs of the business but it has to make its own judgment, based upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary (Hardy & Hansons Plc v Lax

[2005] IRLR 726

and Hensman v Ministry of Defence

UKEAT/0067/14/DM

). It is not the same test as the ‘band of reasonable responses’ test in an unfair dismissal claim. However, in Birtenshaw v Oldfield

[2019] IRLR 946

(para 38) the EAT highlighted that in considering the objective question of the employer’s justification, the employment tribunal should give a substantial degree of respect to the judgment of the decision maker as to what is reasonably necessary to achieve the legitimate aim provided it has acted rationally and responsibly. However, it does not follow that the tribunal has to be satisfied that any suggested lesser measure would or might have been acceptable to the decision-maker or would otherwise have caused him to take a different course. That approach would be at odds with the objective question which the tribunal has to determine; and would give primacy to the evidence and position of the respondent’s decision-maker.

[223]It is necessary to weigh the need against the seriousness of the detriment to the disadvantaged person. It is not sufficient that the respondent could reasonably consider the means chosen as suitable for achieving the aim. To be proportionate a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so (Homer v Chief constable of West Yorkshire Police Authority

[2012] IRLR 601

.) Section 20/21: reasonable adjustments.

[224]Section 20 (so far as relevant) states:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. …

[225]Section 21 states:(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

(3) …

[226]The correct approach to a claim of unlawful discrimination by way of a failure to make reasonable adjustments remains as set out in Environment Agency v Rowan

2008 ICR 218

and is as follows:(a) Identify the PCP applied by or on behalf of the employer,

(b) Identify comparators (if necessary),

[227]The identification of the applicable PCP is the first step that the claimant is required to take. If the PCP relates to a procedure, it must apply to others than the claimant. Otherwise, there can be no comparative disadvantage.

[228]In Ishola v Transport for London

[2020] EWCA Civ 112

it was noted that the phrase PCP should be construed widely but remarks were made about the legislator’s choice of language (as opposed to the words “act” or “decision”.) Simler LJ stated, “I find it difficult to see what the word “practice” adds to the words if all one off decisions and acts necessarily qualify as PCPs…. If something is simply done once without more, it is difficult to see on what basis it can be said to be “done in practice.” It is just done; and the words “in practice” add nothing….The function of the PCP in a reasonable adjustment context is to identify what it is about the employer’s management of the employee or its operation that causes substantial disadvantage to the disabled employee…To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply…. In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. …In context and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that “practice” here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP of “practice” to have been applied to anyone else in fact. Something may be a practice or done “in practice” if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one. …in the case of a one-off decision in an individual case where there is nothing to indicate that the decision would apply in future, it seems to me the position is different. It is in that sense that Langstaff J referred to “practice” as having something of an element of repetition about it.” See also the summary of the law in relation to PCPs per HHJ Beard at paragraph 25 in Ahmed v Department for Work and Pensions

[2022] UKEAT 107

.and also HHJ Auerbach at paragraph 79 in Williams v Governing Body of Alderman Davies Church in Wales Primary School

[2020] IRLR 589

[229]A ‘substantial disadvantage’ is one which is ‘more than minor or trivial.’

[230]Only once the employment tribunal has gone through the steps in Rowan will it be in a position to assess whether any adjustment is reasonable in the circumstances of the case, applying the criteria in the EHRC Code of Practice. The test of reasonableness is an objective one. The effectiveness of the proposed adjustments is of crucial importance. Reasonable adjustments are limited to those that prevent the PCP from placing a disabled person at a substantial disadvantage in comparison with persons who are not disabled. Thus, if the adjustment does not alleviate the disabled person’s substantial disadvantage, it is not a reasonable adjustment. (Salford NHS Primary Care Trust v Smith [2011] EqLR 1119) However, the threshold that is required is that the adjustment has ‘a prospect’ of alleviating the substantial disadvantage. There is no higher requirement. The adjustment does not have to be a complete solution to the disadvantage. There does not have to be a certainty or even a ‘good’ or ‘real’ prospect of an adjustment removing a disadvantage in order for that adjustment to be regarded as a reasonable one. Rather it is sufficient that a tribunal concludes on the evidence that there would have been a prospect of the disadvantage being alleviated. (Leeds Teaching Hospital NHS Trust v Foster [2011] EqLR 1075.

[231]An employer has a defence to a claim for breach of the duty to make reasonable adjustments if it does not know and could not be reasonably be expected to know that the disabled person is disabled and is likely to be placed at a substantial disadvantage by the PCP etc. The question is what objectively the employer could reasonably have known following reasonable enquiry.

[232]If there are no adjustments which would enable the employer to return to work, it would not be reasonable to make them (Conway v Community Options Ltd

UKEAT/0034/12

[233]An employer can satisfy the duty to make reasonable adjustments even if the adjustments adopted are not the adjustments preferred by the employee (Garrett v Lidl Ltd UKEAT/0541/0). Section 26: harassment

[234]Section 26 states: (1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect of- (i) violating B’ s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B …. (4) In deciding whether conduct has the effect referred to in subsection (1) (b), each of the following must be taken into account- (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 235. ‘Unwanted’ conduct is essentially the same as ‘unwelcome’ or ‘uninvited’ conduct.

[236]Harassment will be unlawful pursuant to section 26 if the unwanted conduct related to a relevant protected characteristic had either the purpose or the effect of violating the complainant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

[237]The harassment has to be “related to” a particular protected characteristic. The tribunal is required to identify the reason for the harassment with a particular focus on the context of the particular case. In Unite v Naillard

[2017] ICR 121

the EAT indicated that section 26 requires the tribunal to focus upon the conduct of the individual(s) concerned and ask whether their conduct is associated with the protected characteristic. In that case it was not enough that an individual had failed to deal with sexual harassment by a third party unless there was something about the individual’s own conduct which was related to sex. The focus will be on the person against whom the allegation of harassment is made and his conduct or inaction. So long as the tribunal focuses on the conduct of the alleged perpetrator himself it will be a matter of fact whether the conduct is related to the protected characteristic. As stated in Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

, “there must still … be some feature or features of the factual matrix identified by the tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied the tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found have led to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the tribunal may consider it to be.”

[238]The test as to the effect of the unwanted conduct has both subjective and objective elements to it. The subjective element involves looking at the effect of the conduct on the particular complainant. The objective part requires the tribunal to ask itself whether it was reasonable for the complainant to claim that the conduct had that effect. Whilst the ultimate judgement as to whether conduct amounts to unlawful harassment involves an objective assessment by the tribunal of all the facts, the claimant’s subjective perception of the conduct in question must also be considered. So, whilst the victim must have felt or perceived her dignity to have been violated or an adverse environment to have been created, it is only if it was reasonable for the victim to hold this feeling or perception that the conduct will amount to harassment. Much depends on context. See the guidance Richmond Pharmacology v Dhaliwal

[2009] ICR 724

revisited in Pemberton v Inwood [2018] IRLR where Underhill LJ stated: In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of subsection (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of subsection (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances—subsection (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.”

[239]As stated in Dhaliwal: ‘If, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. Victimisation

[240]Section 27 Equality Act 2010, so far as relevant, provides that:(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act…

(2) Each of the following is a protected act – … (d) making an allegation (whether or not express) that A or another person has contravened this Act.

[241]A protected act requires that an allegation is raised which, if proved, would amount to a contravention of the Equality Act 2010. No protected act arises merely by making reference to a criticism, grievance or complaint without suggesting that it was in some sense an allegation of discrimination or otherwise a contravention of the Equality Act 2010: Beneviste v Kingston University

UKEAT/0393/05/DA

[29].

[242]The test for detriment has both subjective and objective elements. The situation must be looked at from the claimant’s point of view but his perception must be ‘reasonable’ in the circumstances.

[243]The employee must be subjected to the detriment ‘because of’ the protected act. The same principles apply in considering causation in a victimisation claim as apply in consideration of direct discrimination (see above). The protected act need not be the sole cause of the detriment as long as it has a significant influence in a Nagarajan sense. It need not even have to be the primary cause of the detriment so long as it is a significant factor. Detriment cannot be because of a protected act in circumstances where there is no evidence that the person who allegedly inflicted the detriment knew about the protected act. In the absence of clear circumstances from which such knowledge can be inferred, the claim for victimisation will fail Essex County Council v Jarrett EAT 0045/15. Burden of Proof

[244]Section 136 of the Equality Act 2010 provides that, once there are facts from which an employment tribunal could decide that an unlawful act of discrimination has taken place, the burden of proof “shifts” to the respondent to prove any non-discriminatory explanation. The two-stage shifting burden of proof applies to all forms of discrimination under the Equality Act including direct discrimination, harassment, discrimination arising from disability under section 15 and the failure to make reasonable adjustments under section 20. Although similar principles apply, what needs to be proved depends, to a certain extent, on the nature of the legal test set out in the respective statutory sections.

[245]The relevant principles to be considered have been established in the key cases: Igen Ltd v Wong

2005 ICR 931

; Laing v Manchester City Council and another ICR 1519; Madarassy v Nomura International Plc

2007 ICR 867

; and Hewage v Grampian Health Board

2012 ICR 1054

[246]The correct approach requires a two-stage analysis. At the first stage the claimant must prove facts from which the tribunal could infer that discrimination has taken place. Only if such facts have been made out on the balance of probabilities is the second stage engaged, whereby the burden then “shifts” to the respondent to prove (on the balance of probabilities) that the treatment in question was “in no sense whatsoever” on the protected ground.

[247]The approved guidance in Barton v Investec Henderson Crosthwaite Securities Ltd

[2003] ICR 1205

(as adjusted) can be summarised as: a) It is for the claimant to prove, on the balance of probabilities, facts from which the employment tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. If the claimant does not prove such facts, the claim will fail. b) In deciding whether there are such facts it is important to bear in mind that it is unusual to find direct evidence of discrimination. In many cases the discrimination will not be intentional. c) The outcome at this stage will usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. The tribunal does not have to reach a definitive determination that such facts would lead it to conclude that there was discrimination, it merely has to decide what inferences could be drawn. d) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. These inferences could include any that it is just and equitable to draw from an evasive or equivocal reply to a request for information. Inferences may also be drawn from any failure to comply with the relevant Code of Practice. e) When there are facts from which inferences could be drawn that the respondent has treated the claimant less favourably on a protected ground, the burden of proof moves to the respondent. It is then for the respondent to prove that it did not commit or, as the case may be, is not to be treated as having committed that act. To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that its treatment of the claimant was in no sense whatsoever on the protected ground. f) Not only must the respondent provide an explanation for the facts proved by the claimant, from which the inferences could be drawn, but that explanation must be adequate to prove, on the balance of probabilities, that the protected characteristic was no part of the reason for the treatment. Since the respondent would generally be in possession of the facts necessary to provide an explanation, the tribunal would normally expect cogent evidence to discharge that burden.

[248]The shifting burden of proof rule only applies to the discriminatory element of any claim. The burden remains on the claimant to prove that the alleged discriminatory treatment actually happened and that the respondent was responsible. The statutory burden of proof provisions only play a role where there is room for doubt as to the facts necessary to establish discrimination. In a case where the tribunal is in a position to make positive findings on the evidence one way or another as to whether the claimant was discriminated against on the alleged protected ground, they have no relevance (Hewage). If a tribunal cannot make a positive finding of fact as to whether or not discrimination has taken place it must apply the shifting burden of proof.

[249]Where it is alleged that the treatment is inherently discriminatory, an employment tribunal is simply required to identify the factual criterion applied by the respondent and there is no need to inquire into the employer’s mental processes. If the reason is clear or the tribunal is able to identify the criteria or reason on the evidence before it, there will be no question of inferring discrimination and thus no need to apply the burden of proof rule. Where the act complained of is not in itself discriminatory and the reason for the less favourable treatment is not immediately apparent, it is necessary to explore the employer’s mental processes (conscious or unconscious) to discover the ground or reason behind the act. In this type of case, the tribunal may well need to have recourse to the shifting burden of proof rules to establish an employer's motivation

[250]The claimant bears the initial burden of proving a prima facie case of discrimination on the balance of probabilities. The requirement on the claimant is to prove on the balance of probabilities, facts from which, in the absence of any other explanation, the employment tribunal could infer an unlawful act of discrimination. The employer’s explanation (if any) for the alleged discriminatory treatment should be left out of the equation at the first stage. The tribunal must assume that there is no adequate explanation. The tribunal is required to make an assumption at the first stage which may in fact be contrary to reality. In certain circumstances evidence that is material to the question whether or not a prima facie case has been established may also be relevant to the question whether or not the employer has rebutted that prima facie case.

[251]The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, with more, sufficient material from which tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination (see Madarassy).

[252]If the claimant establishes a prima facie case of discrimination the second stage of the burden of proof is reached and the burden of proof shifts onto the respondent. The respondent must at this stage prove, on balance of probabilities that its treatment of the claimant was in no sense whatsoever based on the protected characteristic.

[253]In some instances, it may be appropriate to dispense with the first stage altogether and proceed straight to the second stage (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

.) The employment tribunal should examine whether or not the issue of less favourable treatment is inextricably linked with the reason why such treatment has been meted out to the claimant. If such a link is apparent, the tribunal might first consider whether or not it can make a positive finding as to the reason, in which case it will not need to apply the shifting burden of proof rule. If the tribunal is unable to make a positive finding and finds itself in the situation of being unable to decide the issue of less favourable treatment without examining the reason, it must examine the reason (i.e. conduct the two stage inquiry) and it should be for the employer to prove that the reason is not discriminatory, failing which the claimant must succeed in the claim.

[254]In a case of harassment under section 26 of the Equality Act the shifting burden of proof in section 136 will still be of use in establishing that the unwanted conduct in question was “related to a relevant protected characteristic” for the purposes of section 26(1)(a). Where the conduct complained of is clearly related to protected characteristic then the employment tribunal will not need to revert to the shifting burden of proof rules at all. Where the conduct complained of is ostensibly indiscriminate the shifting burden of proof may be applicable to establish whether or not the reason for the treatment was the protected characteristic. Before the burden can shift to the respondent the claimant will need to establish on the balance of probabilities that she was subjected to the unwanted conduct which had the relevant purpose or effect of violating dignity, creating an intimidating etc environment for her. The claimant may also need to adduce some evidence to suggest that the conduct could be related to the protected characteristic, although she clearly does not need to prove that the conduct is related to the protected characteristic as that would be no different to the normal burden of proof.

[255]In the context of a section 15 claim, in order to establish a prima facie case of discrimination the claimant must prove that he or she has the disability and has been treated unfavourably by the employer. It is also for the claimant to show that “something” arose as a consequence of his or her disability and that there are facts from which it could be inferred that this “something” was the reason for the unfavourable treatment. Where the prima facie case has been established, the employer will have three possible means of showing that it did not commit the act of discrimination. First, it can rely on section 15(2) and prove that it did not know that the claimant was disabled. Secondly, the employer can prove that the reason for the unfavourable treatment was not the “something” alleged by the claimant. Lastly, it can show that the treatment was a proportionate means of achieving legitimate aim.

[256]Where it is alleged that an employer has failed to make reasonable adjustments, the burden of proof only shifts once the claimant has established not only that the duty to make reasonable adjustments had arisen but also that there are facts from which it could reasonably be inferred (absent an explanation) that the duty been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it can be properly inferred that there is a breach of that duty. Rather, there must be evidence of some apparently reasonable adjustment that could have been made. Therefore, the burden is reversed only once a potentially reasonable amendment adjustment has been identified Project Management Institute v Latif

[2007] IRLR 579

[257]In a victimisation claim where there is clear evidence of the reason for the treatment (which forms the detriment) there is no need for recourse to the shifting burden of proof in section 136. However, where the shifting burden of proof does come into play it is for the claimant to establish that he/she has done a protected act and has suffered a detriment at the hands of the employer. Applying the approach in Madarassy would suggest that there needs to be some evidence from which the tribunal could infer a causal link between the protected act and the detriment. One of the essential elements of the prima facie case that the claimant must establish appears to be that the employer actually knows about the protected act (Scott v London Borough of Hillingdon

[2001] EWCA Civ 2005

). Unfair dismissal

[258]Employees with qualifying service have a right not to be unfairly dismissed. Section 95 Employment Rights Act 1996 deals with the concept of dismissal. A dismissal includes where (section 95(1)(c)): “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

[259]An employee alleging constructive dismissal must show that the employer committed a serious or repudiatory breach of contract (serious enough to justify the employee resigning), that she resigned in response to that breach (not for some other unconnected reason), that she did not delay too long or acquiesce in relation to the breach or affirm the contract notwithstanding the breach.

[260]The employee is only entitled to treat herself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. The fundamental (or repudiatory) breach of contract may be based on an express or an implied term of the contract of employment.

[261]One of the central implied terms of any contract of employment is the ‘implied term of mutual trust and confidence.’ This is the implied term that the parties will not, without reasonable and proper cause, conduct themselves in a manner which is calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence between employer and employee (see Malik and Mahmud v Bank of Credit and Commerce International SA

[1997] ICR 606

). Any breach of the implied term of mutual trust and confidence will be considered to be a fundamental breach of contract given the central and fundamental nature of this implied term to the existence of the contract of employment.

[262]As stated in Woods v WM Car Services (Peterborough)

[1981] ICR 666

: “To constitute a breach of this implied term, it is not necessary to show that the employer intended any repudiation of the contract: the tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.”

[263]Reasonableness of the respondent’s actions may be evidence as to whether there is a fundamental breach (and a constructive dismissal), but the test remains contractual (Lewis v Motorworld Garages Ltd

[1985] IRLR 465

, also Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

). It is not enough for the employee to leave merely because the employer has acted unreasonably; its conduct must amount to a breach of the contract of employment.

[264]Where it is alleged that an employee resigned in response to a ‘last straw’ event London Borough of Waltham Forrest v Omilaju

[2005] IRLR 35

reminds us (per Dyson LJ): “14 The following basic propositions of law can be derived from the authorities: 1. The test for constructive dismissal is whether the employer’s actions or conduct amounted to a repudiatory breach of the contract of employment. 2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence between employer and employee: see, for example, Malik v Bank of Credit and Commerce International … 3. Any breach of the implied term of mutual trust and confidence will amount to a repudiation of the contract…The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship. 4. The test of whether there has been a breach of the implied term of mutual trust and confidence is objective. As Lord Nicholls said in Mahmud at page 610H, the conduct relied on as constituting the breach must ‘impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer.’ 5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at para [480] in Harvey on Industrial Relations and Employment Law: ‘Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the “last straw” which causes the employee to terminate a deteriorating relationship.” … 15. The last straw principle has been explained in a number of cases, perhaps most clearly in Lewis v Motorworld Garages Ltd

[1986] ICR 157

. Neill LJ said (p167C) that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence. Glidewell LJ said at p169F: ‘(3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular, in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?...This is the “last straw” situation. 16. Although the final straw may be relatively insignificant, it must not be utterly trivial: the principle that the law is not concerned with very small things (more elegantly expressed in the maxim “de minimis non curat lex”) is of general application. … 19. ….The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase “an act in a series” in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant. 20. I see no need to characterise the final straw as “unreasonable” or “blameworthy” conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred. 21. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.''

[265]When resigning and claiming to have been constructively dismissed, an employee who is a victim of a continuing cumulative breach of the implied term of trust and confidence is entitled to rely on the totality of the employer’s acts, notwithstanding a prior affirmation, provided the later act forms part of the series (Kaur v Leeds Teaching Hospitals NHS Trust

[2019] ICR 1

[266]If the employer does commit a fundamental or repudiatory breach of contract, the employee must resign in response to that breach. The breach of contract need not be the sole cause of the resignation, but it must be an effective cause of the resignation.

[267]The employee must not affirm the contract, whether by prolonged delay before resigning or, by implication, by an equivocal election or by conduct that is consistent only with the continued existence of the contract.

[268]Where there is a constructive dismissal which is not for an automatically unfair reason (such as a protected disclosure), the dismissal may nevertheless be found to be a fair dismissal if the respondent can show that the reason for dismissal was one of the potentially fair reasons permitted by the Employment Rights Act 1996. In the context of a constructive dismissal, the Tribunal will be concerned with the reason, or principal reason, for the fundamental breach of contract. If a potentially fair reason for dismissal is established, then the Tribunal will consider whether the dismissal was fair, applying the range of reasonable responses test to both the substance of the dismissal and the procedure adopted by the respondent. The Tribunal will consider whether, applying the test of fairness in section 98(4), the respondent acted reasonably in all the circumstances in treating that reason as sufficient reason to dismiss the claimant.

[269]A constructive dismissal can be an act of discrimination in the form of harassment as per Ellenbogen J at paragraph 73 Driscoll v V&P Global Ltd

[2021] IRLR 891

: “…In my judgment, as a matter of law, where an employee (as defined by the EqA) resigns in response to repudiatory conduct which constitutes or includes unlawful harassment, his or her constructive dismissal is itself capable of constituting 'unwanted conduct' and, hence, an act of harassment, contrary to ss 26 and 40 of the EqA. Whether or not it does so in the particular case will be a matter for the tribunal to determine.”

[270]Where the reasons for a claimant’s dismissal are a series of bad acts of the employer, some of which are discriminatory and some of which are not, it is only if the discriminatory matters “sufficiently influenced” the overall breach that the claim is made out. (De Lacey v Wechseln Limited t/a the Andrew Hill Salon, EAT

[2021] IRLR 547

.68. I agree with Mr Cook that, in principle, a “last straw” constructive dismissal may amount to unlawful discrimination if some of the matters relied upon, though not the last straw itself, are acts of discrimination. There is very limited authority on this point. However, in Williams v Governing Body of Alderman Davies Church in Wales Primary School

[2020] IRLR 589

, at paragraph 89 , HHJ Auerbach said that a constructive dismissal should be held to be discriminatory “if it is found that discriminatory conduct materially influenced the conduct that amounted to a repudiatory breach.” At paragraph 90, HHJ Auerbach said that the question was whether “the discrimination thus far found sufficiently influenced the overall repudiatory breach, such that the constructive dismissal should be found to be discriminatory.” (my emphasis)

69. I respectfully agree with the test as it is set out in paragraph 90 of the Williams judgment. Where there is a range of matters that, taken together, amount to a constructive dismissal, some of which matters consist of discrimination and some of which do not, the question is whether the discriminatory matters sufficiently influenced the overall repudiatory breach so as to render the constructive dismissal discriminatory. In other words, it is a matter of degree whether discriminatory contributing factors render the constructive dismissal discriminatory. …. 71. First, I do not accept the submission, made by Mr Allsop on behalf of the Respondent, that a “last straw” constructive dismissal can only be unlawful discrimination if the last straw itself was an act of discrimination…In my judgment there can be cases in which the constructive dismissal is, overall, discriminatory, even though the last straw was not. The very essence of the “last straw” doctrine is that the last straw need not be something of major significance in itself. It need not even amount to a breach of contract, when looked at on its own. It need not have the same character as the other incidents that preceded it: see Omilaju v Waltham Forest London Borough Council

[2004] EWCA Civ 1493

;

[2005] ICR 481

, at paragraphs 15-16 . Rather, the significance of the last straw is that it tips things over the edge so that the entirety of the treatment suffered by the employee amounts to a repudiatory breach of contract. It follows by parity of reasoning, in my view, that a constructive dismissal may be unlawful discrimination even if the incident which tipped things over the edge was not itself discriminatory. Another metaphor that is sometimes used for a “last straw” constructive dismissal is the “death of a thousand cuts.” If some of the deepest cuts were acts of discrimination, it should not matter that the final glancing blow, though painful, was not itself discriminatory. Time limits

[271]The applicable provision in relation to time limits in the Equality Act claims is section 123 Equality Act 2010 which states (so far as relevant): (1) [Subject to [section 140B]2 proceedings]1 on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[272]A failure to make a reasonable adjustment is not a continuing act. S123(3)(a) is not applicable. Rather, a failure to make an adjustment is an omission and so s123(4) applies in order to determine when time begins to run for limitation purposes. (Kingston Upon Hull City Council v Matuszowicz

[2009] IRLR 288

) This is so whether the omission to adjust was a deliberate failure, the result of a decision not to make the adjustment, or was an inadvertent omission. In the absence of evidence as to when the decision was made (either because no evidence was available or because the failure to adjust was inadvertent) then sections 123(4)(a) and (b) apply.

[273]The date on which the duty to make a reasonable adjustment arises and is triggered may not be the same as the date on which the limitation period starts to run. For limitation purposes time will begin to run at the point in time when it became clear or ought to have become clear to the claimant that her employer was not complying with its duty to make reasonable adjustments. This may be later than the date on which the employer’s duty to make adjustments first arose. Section 123(4) requires the examination of the period in which an employer might reasonably have been expected to comply with its duty to be assessed and identified from the claimant’s point of view, having regard to the facts known or which ought reasonably to have been known by the claimant at the relevant time (see Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

[274]In the context of a claim for failure to make reasonable adjustments the approach to the date from which time runs was considered by HHJ Beard in Fernandes v Department for Work and Pensions

[2023] IRLR 967

at paragraph 34-37:34. “In the absence of a finding that the employer has made a specific decision not to alleviate a disadvantage there must be judicial analysis to identify the notional date. It appears to me that this analysis must begin with the identification of the feature which causes disadvantage. This could be a PCP but could also be a physical feature or auxiliary aid. This will be a fact which dates the start of disadvantage. The next element to be considered is when it would be reasonable for the employer to have to take steps to alleviate the disadvantage. This is a factual finding and will vary. For instance, the date by which it would be reasonable to have to provide a chair could depend on whether a chair is already commercially available or the chair in question must be purpose built. That date would also amount to a finding of fact as to when a breach occurred. As such it would also assist the judge in identifying the notional date. The ET would then have to ask if there are facts which would allow it to conclude that the employer has acted inconsistently with the duty to make adjustments, if there are, then the notional date would arise at that point. Finally, if there is no inconsistent act, there will come a time when it would be reasonable for the employee, on the facts known to them, to conclude that the employer is not going to comply with the duty.

35. What can be seen from the above is that there could be considerable overlap between factors that inform the notional date (which is jurisdictional) and those which would be factors to put in the balance in considering whether there ought to be a just and equitable extension of time (which engages discretion). It appears to me that, given the statutory language and the authorities which have dealt with its construction, this is an inevitable result. That being the case it appears to me that Miss Garner's submission that it is not the actual subjective conclusions of the claimant that will identify the notional date has considerable force. The Jurisdictional question is one where there should be an objective analysis of facts known to the claimant, which is then considered on the basis of what a reasonable person would conclude, from those facts, about the respondent's intentions to comply with the duty. That will identify the notional date. However, the ET would then be entitled to consider the claimant's subjective state of mind when considering the discretionary question of whether time should be extended on a just and equitable basis.

36. It appears to me that this is the approach endorsed both in Matuszowicz and Abertawe as is evident in the latter from Leggat LJ's phrasing 'that the date by which the employer might reasonably have been expected to comply with the duty should be determined in the light of the facts as they would reasonably have appeared to the claimant', reasonableness in that sense connecting with the way facts would appear to an employee.

37. I conclude that the Employment Judge did misdirect himself as to the law when he indicated that it was the ET's function to determine when the respondent might reasonably have been expected to make the adjustments as the start date for bringing the claim. It was appropriate for him to determine when the reasonable employer would have made the adjustment, however the ET would need to go on to consider when the reasonable employee, based on the facts known to the claimant, would conclude that the duty would not be complied with.”

[275]Where it is asserted that conduct extends over a period and is to be treated as being done at the end of that period the burden of establishing this rests on the claimant. It can be established in several ways, such as by separate acts that are linked in some way as evidence of a discriminatory state of affairs. Where a series of acts are alleged to amount to discrimination a finding that one or more of them was not discriminatory will mean that it cannot be considered to be part of a continuing act. (South Western Ambulance NHS Foundation Trust v King

[2020] IRLR 168

[276]If a claim is found to have been presented outside the statutory time limit a tribunal may exercise its discretion to extend time and allow it to be determined where it is just and equitable to do so (section 123(1)(b)). While tribunals have a wide discretion to allow an extension of time under the ‘just and equitable’ test there is no presumption that they should do so unless they can justify failure to exercise the discretion. The onus is on the claimant to convince the tribunal that it is just and equitable to extend the time limit (Robertson v Bexley Community Centre t/a Leisure Link

2003 IRLR 434

). In deciding whether to extend time on a just and equitable basis it is important that the tribunal considers all relevant factors. The tribunal must weigh up the so-called balance of prejudice between the parties of extending time and allowing the claim to proceed as against refusing the extension of time and stopping the claim on limitation grounds. It may be helpful to consider the same factors as are referred to in section 33 of the Limitation Act 1980 (British Coal Corporation v Keeble

1997 IRLR 336

). The factors listed at section 33 include the length of and reasons for the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued has cooperated with any requests for information; the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action. Whilst that list is a useful guide to tribunals it need not be adhered to slavishly. It is not a legal requirement (Southwark London Borough Council v Afolabi

[2003] ICR 800

). The section 33 ‘checklist’ should not be taken as the starting point for tribunals’ approach to ‘just and equitable extensions’. Rigid adherence to a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion. The best approach for a tribunal is to assess all the factors in the particular case that it considers relevant including the length of and reasons for the delay (Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] ICR D5.) It is generally important for the party seeking an extension of time to provide some sort of explanation for the delay. The strength of the claim may be a relevant factor in deciding whether to extend time (Lupetti v Wrens Old House Ltd

1984 ICR 348

). However, the this is not necessarily a definitive factor. Even if the claimant has a strong case, time may not be extended for it to be heard (Ahmed v Ministry of Justice EAT 0390/14). The fact that a complainant has awaited the outcome of an internal grievance procedure before bringing a claim is just one matter to be taken into account by the tribunal (Apelogun-Gabriels v Lambeth London Borough Council and anor

2002 ICR 713

). There is no general principle that it will be just and equitable to extend the time limit where the claimant was seeking redress through the employer’s grievance procedure before embarking on legal proceedings. The general principle is that a delay caused by a claimant awaiting completion of an internal procedure may justify the extension of the time limit but it is only one factor to be considered in any particular case. The exercise of the tribunal’s discretion demands a multi-factorial approach, and no single factor is determinative. CONCLUSIONS DISABILITY DISCRIMINATION Knowledge of disability

CONCLUSIONS

[277]The respondent has conceded that the claimant was in fact disabled during the material time for the purposes of her claims. However, the date of knowledge of disability is still in dispute. The respondent conceded knowledge of disability from the date of the fit note on 21 February 2023, whereas the claimant contends for a much earlier date of knowledge. She asserts that the respondent had constructive knowledge of the disability by May 2021 when the claimant was in discussion with her managers about pay grade issues. Alternatively, she contends that the respondent had knowledge of her disability from 11 January 2023 or 5 February 2023 at the very latest.

[278]To be fixed with constructive knowledge an employer needs to have constructive knowledge of the elements of disability namely the impairment, the fact that the impairment has a substantial adverse effect on the ability to do normal day-to-day activities, and the fact that it is long-term.

[279]I have considered the way that the evidence available to the respondent in this case developed over time in order to arrive at a conclusion as to the date from which it can be said that the respondent had knowledge of the claimant’s disability.

[280]Taken chronologically, the first available evidence was the pre-employment assessment dated 21 March 2014. This is important because it refers to two episodes of mental ill-health in 2001 and 2010 and indicates that those episodes were severe/significant enough to require the claimant to obtain medication and counselling. An objective reader of the document could reasonably deduce that these might not be normal and self-limiting reactions to adverse life events but rather something which tipped over into the realm of a condition which required medical treatment. I note that the episodes were described as “reactive.” Upon reasonable enquiry it may have come to light that the episodes were a reaction to life events and likely to be self-limiting, but that information was not available for the respondent to take into consideration because the respondent made no further enquiry about the medical history. The document also indicates that the claimant knows to seek medical support if it is required. This might also suggest that the claimant’s symptoms ‘could well’ recur. This might suggest that the impairment is ‘likely’ to recur given the Equality Act definition of a ‘long-term’ effect. Whilst I am not convinced that this document alone meant that the respondent needed to make further enquiries about the claimant’s health at this point in time (particularly as the report says that no adjustments are required), this initial assessment is the backdrop to everything that comes later. It could have been consulted by the respondent’s managers later in the chronology of events in order to inform their approach to managing the claimant and the difficulties that she experienced in her employment.

[281]Next there is the 2016 record where the claimant self-reported herself as disabled. No questions were asked about this by the respondent. The information lay dormant within the respondent’s records. It is unclear what, if any, steps were taken by the respondent (whether within the HR team or otherwise) to review the results of this data gathering exercise and consider what steps might need to be taken as a result of the information provided therein. Whilst not on its own sufficient to fix the respondent with constructive knowledge of disability, this is again a relevant piece of information which was available to the respondent and which should have been considered by relevant managers later in the chronology of events in this case.

[282]The first occupational health report was produced on 4 February 2019. It referred to stress and anxiety and indicated that the claimant went to see her GP about this. It also referred to problems with chest pains necessitating tests which indicated that blood pressure was elevated in response to stress as recently as January 2019. It also recorded that the claimant had selfreferred to the employee assistance programme for counselling and mental health support. It also recommended that there should be regular management meetings with the claimant to discuss concerns. The documents disclose an emerging pattern of a recurrence of symptoms and that the symptoms were significant enough for the claimant to feel the need to go to the doctor or to the employee assistance programme for help. Further, the mental health symptoms were apparently manifesting in a physical way through raised blood pressure.

[283]The occupational health report does not comment on whether the claimant was disabled within the meaning of the Equality Act. It appears that those who made the referral to Occupational Health did not ask this question. It is not clear why the question was not asked. Even though the question was not included in the initial referral, a manager might well have read the report and then asked this further follow-up question, given the nature and apparent severity of the claimant’s symptoms. On balance, the respondent ought to have asked this further question of Occupational Health. Had the question been asked, it is possible that Occupational Health and the respondent would have concluded that the relevant components of an Equality Act disability were present, given the periodic symptom flare-ups that the claimant is recorded as having since 2001. It is not clear why the respondent did not ask the disability question. It is somewhat difficult to explain. If the respondent had looked at the claimant’s record holistically at that point, rather than taking each piece of information in isolation, it would reasonably have triggered this further enquiry to Occupational Health.

[284]By April 2021, the claimant was in correspondence with her then line manager (Mr Gibbons) about the pay increment dispute. In the course of an email on 14 April, the claimant says, “after 15 May I can hopefully draw a line under the last 18 months of worry, stress and anxiety of the grievance and having to challenge HQ.” In further email correspondence on 24 May 2021, the claimant says to her line manager, “as you are aware, this situation is having a negative effect on my health and wellbeing and the delay in getting a response is making my health deteriorate further.… I am still receiving help from EAP and my GP and I have a follow-up appointment with my GP this week.” By this stage, the claimant was explicitly referring to an extended period of mental ill-health which was sufficiently serious for her to require assistance from her GP and EAP. This should have triggered further enquiries from the respondent’s managers. Even if the manager personally thought that the claimant was overreacting and need not be so stressed and anxious about the issues in dispute (i.e. the pay increment), this does not alter the fact that the claimant was in fact anxious about it.

[285]It is possible that Mr Gibbons had actual knowledge of the claimant’s disability at this stage because he had knowledge of her anxiety and that this was a long-standing or recurring problem. At the very least, the available information should have put him on enquiry to find out what he could about the claimant’s condition with a view to discovering whether there was a disability or not. He was not entitled to close his eyes to the issue. Given what the claimant had already put in writing in her correspondence with her employer, I have no reason to think that she would have been anything other than open and honest about her mental health impairment, if she had been asked about it. There is no reason to think that she would have hid her condition or misled the respondent in some way into concluding that the problem was not significant or long-standing. Whilst I am not necessarily satisfied that the claimant explicitly told Mr Gibbons of her disability during the conversation (as alleged at paragraph 12 of the claimant’s witness statement), I consider that the documentary record is sufficient to establish what Mr Gibbons knew at the relevant time. Had enquiries been made, the respondent would have received the answer. Furthermore, managers could have found the earlier records on ITrent or other parts of the respondent’s record-keeping system. They could have looked for themselves or they could have asked HR for assistance in looking further back through occupational health records and associated personal records for the claimant. There is nothing to suggest that it was impossible for them to find this information if they had been minded to look for it. The managers might have needed need help to do this, but it was an option which was open to them. They should not have ignored the warning signs that the claimant had a longstanding and significant mental health impairment, nor should they have concluded that the claimant was being hypersensitive without asking these questions first.

[286]If the respondent had looked at the information it already had by May 2021, it would have been put on enquiry as to the existence of a disability. Had it made enquiries, it would have been furnished with the relevant evidence that the claimant met the definition of disability at this stage. Consequently, I am content to conclude that the respondent had constructive knowledge of the disability by May 2021. Had the respondent’s managers asked questions at that stage, they would have been made fully aware of the history of the claimant’s mental impairment and the fact that the symptoms were significant and recurring over time. The respondent is therefore fixed with knowledge of the claimant’s disability from May 2021 onwards, for the purposes of the discrimination claims.

[287]Subsequent information and events confirm this position. In particular, on 19 October 2022 the claimant sent an email to Ms Seex (copied to Mr Hodson) stating that she would reconsider progressing to a Senior Fire Safety Inspecting Officer role once she had got her health under control as, at that moment, it would be too much for her. This serves to underline the claimant’s view that her mental health impairment was a barrier to career progression at that time. She volunteered this information to the respondent.

[288]On 21 November 2022, the claimant sent an email to Mr Hodson raising a concern that a change in working conditions would have a negative impact on her mental health. On 8 December 2022, the claimant emailed Mr Hodson informing him that she was quite poorly. And on 11 January 2023 there was a telephone call in which the claimant asserted that work-related stress was the cause of her TIA and that her GP felt that the work environment would be detrimental to her health should she return to work as things were. I am content to conclude that, had Mr Hodson reacted to any of these pieces of information with a conversation with the claimant about her health, he would have discovered sufficient information to conclude that the claimant had a disability. Consequently, if I am wrong about the earlier date of knowledge (May 2021, paragraph 286, above), I conclude that the respondent, through Mr Hodson, had constructive knowledge of the claimant’s disability by December 2022 or 11 January 2023 at the very latest.

[289]The paragraphs which follow address the matters set out in the updated final list of issues. Paragraph numbers are references to numbering in that list of issues, unless otherwise indicated. Section 15 discrimination

[290]As already stated, the respondent knew or ought reasonably to have known of the disability by May 2021. Unfavourable treatment. Paragraph 4.3.1

[291]I am satisfied that the respondent treated the claimant unfavourably by subjecting the claimant to a four-hour meeting on 29 August 2023 in connection with the stress risk assessment. Whilst the manager’s intentions were likely to have been honourable, the adverse impact of this meeting on the claimant was considerable. The offer of breaks, and the indication that the claimant could ask to stop at any time, did not mitigate the fact that the claimant was being asked to sit in a room with her line manager for an extremely long meeting. The subject matter of the meeting was important to her health and her ability to return to work. It was an important meeting. I am satisfied that Mr Sugden meant well and was genuinely doing what he thought was best in order to facilitate the claimant’s return to work. However, the claimant had, by this stage, been absent from work on sick leave for a considerable period of time and was known to be anxious. It was reasonably and objectively foreseeable that the claimant would attempt to comply with her employer’s requests and sit through the meeting until its conclusion. This does not mean that the meeting had no adverse effect on her or that she was entirely happy and content with the way it was conducted. She was attempting to be compliant with her manager’s requests. The claimant had already waited to have the meeting for some considerable time. She had been made increasingly anxious by delays within the process. She naturally wanted to achieve a resolution once the opportunity to have a meeting about the stress risk assessment presented itself. She was, in effect, “gritting her teeth” and just getting it done. Whilst she wanted to have the meeting itself, it was of marathon duration. Her participation required significant levels of energy and concentration. This would be difficult and draining for someone who did not have anxiety and depression but was even more so for the claimant, given her disability and the fact that she had been absent from work through sick leave. In the circumstances, I am content to find that the four-hour stress risk assessment meeting amounted to “unfavourable treatment.”

[292]The claimant did not have adequate time to recover from the stress risk assessment meeting before she had to attend a further important meeting. The very next day she had to attend a capability meeting (on 30 August 2023). Whilst not as lengthy as the previous day’s meeting, it was even more important given the nature of the meeting. This was a meeting under the respondent’s capability procedure. It had been delayed up until this point. The claimant was well aware of the importance of the capability procedure and the fact that, although this was an early-stage meeting, progress through the capability procedure could have significant consequences for her continued employment with the respondent. (The last stage of the capability procedure was, potentially, termination of employment.) Thus, whilst there was nothing wrong in principle with having this meeting, it was a stressful, tiring and important meeting. It was conducted the day after the claimant had sat through a four-hour meeting. The claimant had not had time to recover between the two meetings. The claimant’s willingness to comply with the process seems to have been interpreted as though she was content with the process and able to cope with it adequately. This was not a safe assumption for the respondent to make.

[293]Only a week later the claimant attended a meeting to complete a Wellness Recovery Action Plan (6 September 2023.) This meeting lasted for five hours. Once again, Mr Sugden had honourable intentions and was genuinely attempting to discharge his duties as the claimant’s line manager and support her in her return to work. However, the attempt was somewhat clumsily executed. It compounded the ill effects of the earlier lengthy meetings that had taken place the week before. Whilst the claimant did what was asked of her, she was somewhat dismayed about the lengths she was having to go to in order to facilitate her own return to work. Whilst stress risk assessments and wellness recovery action plans are tools which are intended to help support an individual in employment, the way they are managed in practice may not be experienced as supportive by the employee in question. In effect, these meetings were something of an ordeal for the claimant to get through. Whilst Mr Sugden had good intentions, the effect of these three meetings (and the way that they were carried out) was to undermine the claimant’s trust in her immediate line manager and in the respondent organisation as a whole. The way the process was undertaken was reasonably received by the claimant as putting deliberate and unnecessary additional barriers in the way of her recovery and return to work.

[294]I am satisfied that all of the meetings referred to (at paragraph4.3.1 ) amounted to unfavourable treatment even though there were some elements of the meetings which were in the claimant’s best interests and which she wanted to complete. It was the way that the meetings were handled which was the particular problem. They were too long, too close together, too stressful, and too intense for the claimant to cope with them adequately without suffering unnecessary additional stress, anxiety, and associated fatigue. Paragraph

4.3.2

[295]The other aspect of unfavourable treatment which the claimant relies upon for the purposes of her section 15 claim is set out at paragraph 4.3.2 of the list of issues. It is stated to be “not addressing and/or resolving the stressors affecting the claimant at work and her ability to return to work as identified in her email dated 5 February 2023 to Michael Hodson.”

[296]The email in question contained a number of concerns which the claimant raised with her employer at this juncture. The first of these was historic and recent workplace bullying. This was linked to the sixth concern in the email. The claimant felt unsupported in relation to the incident at Yorkshire Street in Oldham (this was the sixth concern in the 5 February 2023 email.) The claimant had initially raised this concern shortly after the event and it was initially addressed by her line manager Mr Gibbons. The claimant asked not to work on joint visits with Ms Hoyle. In effect, the matter was dealt with by assigning the claimant and Ms Hoyle to separate workplaces and ensuring that they would not have to attend site visits together. On occasion they would have to be in each other’s presence, for example, during team meetings, but the intention was that the line manager would be able to oversee such interactions and ensure that they were not detrimental to either party.

[297]Apparently, there was a further incident in relation to this at the AJ Bell Stadium on 7 December 2022. However, the chronology of events shows that it was not possible to address this with the two women in the months which followed as they were not in work at the same time, for various reasons. The issue was subsequently addressed by the offer of mediation which, unfortunately, proved to be unsuccessful. Whilst the respondent’s attempts to resolve the issues of bullying and the difficult working relationship between the claimant and Ms Hoyle ultimately proved unsuccessful, I am not satisfied that they actually treated the claimant unfairly or unfavourably by failing to address this. It is just that their attempts were unsuccessful and, in relation to mediation, were delayed because there was a significant period of time when the two women were not fit and in work at the same time and in a position to be able to participate in the mediation.

[298]The second concern raised on 5 February 2023 was workload not being evenly distributed. In essence the claimant was doing more than her fair share of the less desirable tasks in the team. Planning consultations were not being picked up, with the result that the claimant was being chased for them even though others within the team could/should have been doing this work. This was the third concern raised on 5 February. It is not really clear how the respondent resolved this other than putting the onus on the claimant not to take responsibility for this work. The fourth concern was that she was being expected to do work which was ‘above her pay grade.’ As set out above, the respondent managers did attempt to clarify with the claimant what she was expected to do and what she was not. She was reassured that she did not have to do work outside of her pay grade and that jobs should be fairly distributed amongst the team so that she was not doing more than her fair share. Once the claimant was absent from work on sick leave it was not feasible to take more practical steps to implement this, particularly as the department was being restructured during the claimant’s absence. The fifth concern was that personal performance figures were being shared with the rest of the team causing bad feeling and adverse comment. I am not aware that this was properly addressed by the

[299]The claimant did not get sufficient regular one-to-ones with her line manager Mick Hodson. This was the seventh concern in the 5 February 2023 email. The claimant had been requesting regular one-to-ones and Mr Hodson had been unable to facilitate them. He may well have had good reasons for this, given the other tasks that he had to complete in the course of his working day. However, this was certainly unfavourable treatment so far as the claimant was concerned, however unintentional from the respondent’s perspective.

[300]Taken as a group of concerns, it is certainly true to say that the respondent did not address and resolve all of the concerns raised to a standard which would enable the claimant to continue working effectively in her post. In some cases, it is hard to see what else the respondent could have done to solve the problem, whereas in other cases there were steps which could and should have been taken at an earlier stage to reassure the claimant that she was being heard and that the problems would be addressed. Taken as a whole, I am satisfied that the failure to address or resolve the issues raised in this email was unfavourable treatment of the claimant. In the main, the issues raised in the email were not really addressed head-on until 6 September 2023. Consequently, I am satisfied that the claimant has established that she was treated unfavourably as set out at paragraph 4.3.2, even though the respondent addressed and resolved some aspects of the stressors identified in her 5 February email. The respondent’s partial failure is sufficient to constitute unfavourable treatment for section 15 purposes. Something arising from disability: paragraph 4.4.

[301]The claimant’s prolonged absence from work after 23 December 2022 was evidently ‘something arising in consequence of her disability.’ Whilst the suspected TIA was the initial trigger for the absence, issues of stress, anxiety and depression quickly came to the fore and were the reason for the extended absence. This is reflected in the change of language in the GP fit notes. Unfavourable treatment because of something arising from disability: paragraph 4.5.

[302]Had the claimant not been absent for so long, it is unlikely that Mr Sugden would have felt the need to conduct such lengthy and intense meetings with the claimant on 29 August, 30 August and 6 September (paragraph 4.3.1) There was a sense that there had been such a delay and matters had been left to fester for so long that Mr Sugden really had to make the most of the opportunity to meet with the claimant and get everything on the ‘to do list’ completed during these three lengthy meetings.

[303]The meetings were held very close together. Mr Sugden was, in effect, trying to make up for lost time. Had the claimant been more present in work over a period of time, Mr Sugden would have been able to break the tasks down into more manageable ‘chunks’ and address the issues in stages, in a more manageable and less pressurised way. He would have been less likely to feel that he was under pressure to address all of the outstanding problems in one go in such an intense way if the claimant’s return to work had not been riding so much on the outcome of these meetings.

[304]Part of the problem was that these issues had not been addressed by the claimant’s previous line managers. Mr Hodson had largely taken the view that resolution of the stressors could wait until the claimant was ready to return to work. Consequently, the fact that the matters to be discussed at those meetings had not already been addressed was, itself, partially a consequence of her absence from work and Mr Hodson’s attitude towards it. In short, Mr Sugden felt that he had to carry out the meetings in the way that he did because of the claimant’s extended absence from work and Mr Hodson’s decision to delay addressing matters until she was ready to return to work.

[305]The unfavourable treatment at paragraph 4.3.1 was because of the ‘something arising from disability.’ Further, the capability meeting was only required under the respondent’s procedure because the claimant had been absent from work on sick leave for a prolonged period.

[306]Mr Hodson felt that the issues raised by the claimant could be addressed once she returned to work. He did not fully grasp that the lack of a resolution to these issues was itself forming a barrier to the claimant returning to work. The claimant was in something of a ‘Catch 22’ situation. She could not return to work until the issues were resolved but the issues would not, in the main, be addressed and resolved until she was due to return to work.

[307]The next person to consider addressing these stressors was Mr Burdsall. It was proposed that the claimant’s concerns would be dealt with after his meeting with the claimant on 25 April 2023. Although the intention may have been that Mr Burdsall would deal with welfare and Ms Seex would deal with the concerns/stressors, this is not what actually happened in practice. Ms Seex genuinely offered to speak to the claimant but this was communicated as an informal supportive measure rather than as a way of addressing the concerns that the claimant said were a barrier to her return to work.

[308]Matters remained unresolved at the point that Mr Sugden took over as the claimant’s line manager. This may not have been deliberate on the part of Ms Seex or Mr Burdsall. I accept that they genuinely wanted to solve the problem and get the claimant back to work. The difficulty is that the plan was so unclear that tasks fell by the wayside and were forgotten and left unresolved whilst the claimant remained absent on sick leave. In fairness to Mr Sugden, when he took over line management, steps were taken to go through the concerns in detail and put together a plan of action to facilitate a return to work at the meeting on 6 September (with the follow up email on 7 September.) Some of the concerns were touched upon in the course of the grievance in July 2023, but it was September before a substantive plan of action was drawn up to address the barriers in the way of the claimant’s to the return to work. The respondent’s managers had the misguided impression that the issues could be addressed when the claimant was fit to return to work. There was inadequate recognition of the fact that the failure to resolve the claimant’s concerns was, in itself, a barrier to her return to work.

[309]I am satisfied that the unfavourable treatment in question (paragraph 4.3.2) was at least partially because of the claimant’s absence from work. The ‘something arising from disability’ was a material factor, a material influence which caused the unfavourable treatment complained of. If the claimant had been in work, it would have been harder for the respondent to avoid the issues or leave them unresolved. As she was absent, nobody was given clear or unambiguous responsibility to address the issues for her. In addition, the claimant was not present in the workplace in order to force the issue. Furthermore, the mediation or other steps to resolve the alleged bullying are likely to have been offered at an earlier stage if she had been present in work. Objective justification

[310]The legitimate aims relied upon were, “ensuring workplace safety, risk management and effective reintegration of the claimant into the working environment.” I am satisfied that these are, in principle, legitimate aims for the respondent to pursue. I have to assess whether the unfavourable treatment in question was a proportionate means of achieving those legitimate aims.

[311]In relation to not resolving the workplace stressors (paragraph 4.3.2) (and effectively delaying too long before addressing the issue) it is difficult to see how the unfavourable treatment furthered the legitimate aims which were relied upon. Arguably, the respondent needed to actually address the stressors in order to ensure workplace safety, manage risk and reintegrate the claimant into the working environment. The way to further the legitimate aims was to avoid the unfavourable treatment.

[312]Alternatively, the issue is one of proportionality. The issues were raised in one place in the email of 5 February 2023. The message coming from the claimant and her GP was that the stressors needed to be resolved in order for her to return to work. Meetings and discussions could and should have been facilitated at an earlier stage so that the parties did not become entrenched in their respective positions. The delay meant that the claimant lost hope of a resolution and started to distrust the motives of her line managers. This could have been nipped in the bud with a prompt meeting or discussion, perhaps with HR support or input. The legitimate aims do not justify the delay.

[313]Likewise, had the option of mediation been discussed earlier, it may well have been more successful. By the time it was offered and then took place both the employees had had many months to become entrenched in their respective positions. Mediation was only recommended on 18 July 2023 as part of the outcome of the grievance. Furthermore, the passage of time meant that other options to resolve the problem were problematic when the mediation failed. It was more difficult to raise any formal complaints about incidents which had happened the previous year. The claimant felt that her bullying complaints were not being taken seriously and this is likely to have adversely affected her mood. Taking active steps to resolve the issue at an earlier stage is likely to have had a correspondingly positive impact on the claimant’s mental health. Indeed, if she felt that plans were in place to address the problem, the claimant may have been sufficiently recovered to attempt a return to work. If mediation had been attempted at an earlier stage, even if it was unsuccessful, it would give the claimant an opportunity to ventilate her concerns with a view to being able to move on and carry on working, even if she was no longer able to work alongside Ms Hoyle, without managerial supervision of their interactions. In short, delay in addressing the claimant’s concerns made a favourable outcome less likely. It is hard to see that the respondent’s actions were a proportionate means of achieving its legitimate aims.

[314]The meetings that Mr Sugden held with the claimant were a genuine attempt to resolve the issues and facilitate the claimant’s return to work (paragraph 4.3.2). I have no doubt that they were genuinely intended to further the respondent’s legitimate aims. However, proportionality is the problem. Whilst Mr Sugden would have adjourned the meeting if asked, the onus was placed on the claimant to request this or to say that the meeting was too long. However, in reality, the claimant was not in the best place to make those decisions or to advocate for herself in those circumstances. It was part of the manager’s responsibility to set up the meetings in an appropriate way and to put appropriate boundaries in place. The obvious boundary would be to put a time limit on the meetings to ensure that they were a manageable length. Furthermore, if Mr Sugden needed to stop to eat lunch and have a break but the claimant did not have any lunch with her, this would be a reasonable indication that the meeting should be halted at that point, to be resumed on another day. Even if the claimant indicated that she was content to continue without eating, this should have been a warning sign to Mr Sugden that the meeting had been going on for too long and the claimant could not reasonably be expected to see it through to its completion in one sitting.

[315]Likewise, the dates of the meetings were in the manager’s control. Once the meeting on 29 August took place, the meeting on 30 August ought reasonably to have been postponed given the nature of the claimant’s mental health condition. It ought to have been apparent that it was asking too much of the claimant to come into an important meeting the very next day.

[316]The respondent had the benefit of a recent occupational health report which set out what was needed in order to have the meetings. Of course, Mr Sugden intended to be empathetic during the meetings but this, on its own, was not sufficient. The report indicated that the claimant would need regular beaks to prevent increasing anxiety symptoms. (Possibly this might entail stopping altogether after a set period?) The report indicated that the claimant needed to be provided with written information and explanations prior to the meetings. This did not happen. It was apparent that the claimant needed significant support from her counsellor and GP to get through her meetings and interactions with the respondent by this stage.

[317]In light of the above I have concluded that the unfavourable treatment was not a proportionate means of achieving the respondent’s legitimate aims. The treatment was not objectively justified, and the claims of section 15 discrimination are well founded and upheld in their entirety. Reasonable adjustments The PCPs

[318]By the conclusion of the hearing, the claimant relied upon the following PCPs which appeared at paragraph 5.2 of the list of issues. The subparagraph letters had been retained for consistency: (d) A policy of subjecting employees with prolonged absences from work to unreasonably and excessively lengthy meetings and insisting on weekly telephone calls thereby exerting unreasonable and unnecessary pressure on such employees. (e) A practice or policy of requiring that employees attend work and undertake the duties of their role. (g) A practice or policy of requiring a formal bullying complaint before addressing a complaint of bullying. (h) A practice or policy of requiring the subject of a bullying complaint to be fit for duties and/or attending work before addressing a complaint of bullying against them. (i) A practice or policy of not addressing the bullying allegations made by employees unless and/or until they are in work.

[319]The respondent concedes that the PCP at (e) above was a PCP which they applied to the claimant. The respondent accepts that it had a PCP of requiring that employees attend work and undertake the duties of their role.

[320]Case law indicates that there need be no actual non-disabled comparator if the PCP in question would put the claimant at a disadvantage (because of her disability), as compared to an employee who did not have the disability, if the PCP were to be applied to that employee. There needs to be some element of repetition or persistence in order for something to be considered a PCP. It should not be a one-off occurrence. That element of persistence or repetition may be found “within the four walls” of how the employer is found to have treated the individual complainant (Williams v Governing Body of Alderman Davies Church in Wales Primary School

[2020] IRLR 589

[321]With the relevant legal principles in mind, I have reached the following conclusions about the remaining PCPs relied upon by the claimant. (d) A Policy of subjecting employees with prolonged absences from work to unreasonably and excessively lengthy meetings and insisting on weekly telephone calls thereby exerting unreasonable and unnecessary pressure on such employees.

[322]I am satisfied that the respondent had such a PCP in relation to unreasonably lengthy meetings. The claimant herself was subjected to two such meetings on 29 August and 6 September. Mr Sugden evidently wished to complete the items on the agenda within one meeting rather than require the claimant to attend further meetings for the same purpose on subsequent dates. There was, it seems, a lot to get through in each type of meeting, largely because the claimant had been off work for a considerable period of time and the issues had not been addressed on an ongoing basis during this absence. Hence, there was a lot to consider in both the update meeting for the stress risk assessment and also the meeting to address the claimant’s workplace stressors. I am satisfied that the respondent would have subjected other employees (without the claimant’s disability) to such lengthy meetings if they had been away from work for a lengthy period with the result that there was a lot on the agenda to be completed during the meetings. Mr Sugden would have been equally keen to complete the agenda in such circumstances had this arisen with someone other than the claimant (a non-disabled comparator).

[323]Furthermore, the chronology of events shows that the claimant sought to reduce the frequency of catch-up calls that she had with Mr Sugden during her absence. He maintained that they were necessary despite the claimant’s objections or requests to reduce the frequency to something that she was better able to cope with. I am satisfied that Mr Sugden would have had the same approach to such catch up calls with other (non-disabled) employees who were off work on extended periods of sick leave. He was diligent in doing what he considered was required of him in managing employees. He did not want to neglect absent employees and perhaps had a tendency to overcompensate by ensuring that catch up calls were completed with somewhat rigid regularity, irrespective of whether there were any particular developments or issues that he needed to discuss with the employee in question.

[324]In light of the above, I am satisfied that the respondent had this PCP or related pair of PCPs. (g) A practice or policy of requiring a formal bullying complaint before addressing a complaint of bullying.

[325]I am not satisfied that the respondent had this PCP. The stated PCP refers to requiring a formal complaint before addressing a complaint of bullying. However, the claimant’s submissions finesse this so that ‘addressing a complaint of bullying’ has to mean instigating an investigation and outcome and cannot constitute alternative modes of resolution, such as informal or mediation approaches. Whilst it is arguable that a formal complaint from an employee was required in order to instigate the formal procedure, this does not mean that the employer would not address a complaint at all without the employee making a formal complaint. Put another way, the respondent did not ignore complaints unless they were made formally. Rather, if an employee wanted to instigate a particular and specific investigation procedure, then they had to request it by making a formal complaint. Even then, there were exceptions. If a particularly serious allegation of bullying (effectively misconduct) came to the employer’s attention, they would have grounds to investigate it even if the complainant did not want to pursue it through a procedure. This is an exception which is commonly found in various organisations. It enables an employer to address egregious wrongdoing without having to rely on the cooperation of a complainant who may be unwilling to assist for various, legitimate reasons.

[326]Furthermore, in the claimant’s case, her allegations of bullying were not ignored. In particular, mediation was offered and attempted. This was a way of addressing the complaint without going through a formal procedure which required a formal complaint.

[327]Consequently, the PCP, in the terms stated, is not established on the facts of this case. There was no PCP requiring a formal complaint before a complaint of bullying would be addressed. (h) A practice or policy of requiring the subject of a bullying complaint to be fit for duties and/or attending work before addressing a complaint of bullying against them.

[328]I am satisfied that this is established as a PCP on the facts of this case. As a matter of practicality, it is difficult (and potentially unfair) to address a complaint of bullying when the alleged wrongdoer is absent from work or otherwise unfit. It is a principle of fairness that the individual should be well enough and present at work to respond to any allegations that are made against them. It is part of the general right of an employee to be able to defend themselves against such allegations. I am satisfied that this principle would be applied in any case, not just the claimant’s case, in relation to her allegations against Ms Hoyle. The subject of such a complaint would have a right to a fair opportunity to reply and defend themselves against such conduct allegations as part of their own contract of employment with the (i) A practice or policy of not addressing the bullying allegations made by employees unless and/or until they are in work.

[329]Put another way, this is a requirement that the complainant be in work before their allegations are addressed. I am doubtful that the respondent applied such a PCP for similar reasons as those set out in relation to PCP (g) above. The complaint was addressed before the claimant was fit to return to work insofar as it was discussed and informal resolution and mediation was offered and attempted before the claimant returned to work. The allegation was “addressed” but a formal procedure was not instigated whilst the claimant was off work. However, that was as much because the claimant had not instigated such a procedure by making a formal complaint. On balance I am not satisfied that the allegation was ignored until the claimant was fit to attend work. Rather, alternative ways of addressing the issue were explored pending the claimant being able to attend work or initiating a formal complaint process. Substantial disadvantage

[330]I am satisfied that PCP (e) put the claimant at a substantial comparative disadvantage. The claimant was unable to attend and carry out her work duties because of the symptoms of her disability. A comparator without her disability would, on the face of it, be able to attend work and carry out the duties associated with their role.

[331]The PCP regarding lengthy meetings and weekly phone calls (d) also put the claimant at a substantial comparative disadvantage as it exacerbated her anxiety symptoms and other symptoms associated with her disability. She would struggle to have the weekly calls and lengthy meetings compared to her non-disabled comparators. The claimant’s own emails and discussions with Mr Sugden made it clear that she was facing heightened symptoms and was struggling to have the calls and meetings. Whilst any employee might find a four-hour meeting difficult, the level of anxiety during the meeting and the adverse aftereffects of the meetings (such as fatigue) would be considerably more significant in someone with the claimant’s disabilities compared to a non-disabled employee. The degree of difficulty and the extent of the adverse aftereffects would be considerably more pronounced for the disabled employee than for the non-disabled comparator.

[332]The PCP at (g) above (regarding requiring a formal bullying complaint) has not been established. In any event, the claimant seems to have been able to communicate in detail and at length with her employer via email and in writing. I would not have been persuaded that she would find it more difficult than a non-disabled comparator to put together a formal complaint which the employer could then take forward using its internal procedures. Comparative substantial disadvantage would not have been established in relation to such a PCP.

[333]I am satisfied that PCP (h) also put the claimant at a substantial comparative disadvantage as compared to someone without her disability. Whilst the absence of the alleged wrongdoer would delay the complaint being addressed in both the claimant’s case and that of the non-disabled comparator, the nature of the claimant’s disability means that the impact of the same degree of delay would be more severe in the claimant’s case than in that of the comparator. The symptoms of the claimant’s disabilities would be exacerbated, particularly those associated with anxiety. Whilst a nondisabled person would be disappointed and concerned about the delay, the impact on that comparator would not be as significant (in terms of mental health and wellbeing) as it was for the claimant. Substantial comparative disadvantage is established.

[334]I was not satisfied that PCP (i) was established in this case. Had the PCP been established, I would have been satisfied that the claimant would be placed at a substantial disadvantage by its existence. The claimant was absent from work as a consequence of her disability and the other facts of the case. Given the nature of the disability, she was perhaps more likely to be absent from work in circumstances where she made an allegation of bullying than a non-disabled comparator would have been. Therefore, the respondent would be more likely to have to delay addressing a complaint in her case than in the case of a non-disabled comparator making such a complaint. The resolution of her complaint would be more likely to be delayed (with attendant stress and anxiety) than that of a comparator. Such a delay is more likely to have a marked adverse effect on her mental health and wellbeing than on that of the comparator.

[335]Further, where the PCPs put the claimant at a substantial disadvantage (as set out above), I am satisfied that the respondent either knew, or ought reasonably to have known, that the claimant was likely to be placed at that disadvantage by the PCPs. Had one of the managers applied their mind to the issue, they would have foreseen the additional difficulties facing the claimant which would not have faced the non-disabled comparator. The reasonable adjustments.

[336]I am satisfied that it would be perfectly practicable and reasonable to expect the respondent to reduce the frequency of the phone calls from once a week to something less frequent which the claimant could manage without exacerbating her anxiety and depression symptoms. This is particularly so given that the claimant herself told the respondent that these calls were too frequent and were having an adverse effect upon her. Likewise, although the lengthy meetings were well meant and were intended to address the claimant’s concerns in one sitting, in an efficient way, they were too much for the claimant to cope with given her disability and the other circumstances of the case. It ought to have been obvious to the respondent that a series of shorter meetings with adequate recovery time between them was the only reasonable and fair way to meet with the claimant to address her concerns in all the circumstances. This is so even though the claimant ‘went along with’ the longer meetings held by Mr Sugden. I am satisfied that the PCPs put the claimant at the disadvantage which merited these adjustments to alleviate that disadvantage. I am also satisfied that the respondent ought reasonably to have known that the PCPs put the claimant at that disadvantage. There was a breach of the duty to make reasonable adjustments in relation to the frequency of the weekly calls and the length and timing of the long meetings with Mr Sugden.

[337]The claimant says that the respondent could and should have funded her private counselling sessions. The PCP requiring attendance at work and performance of the duties of the role put the claimant at the disadvantage of being unable to attend work. One of the measures to assist the claimant’s recovery and get her back to work was the provision of appropriate mental health support via counselling. By the time the claimant was referred for a full occupational health report she had already decided that she needed counselling and was paying for this privately (so as to avoid NHS waiting lists). Had the respondent referred her to Occupational Health sooner and got this recommendation earlier, she could have been referred for counselling support through the respondent, and this would have been free of charge. As the claimant had already started private counselling by the time of the occupational health recommendations, it was not appropriate to duplicate the treatment with counselling provided via the respondent (as it could conflict with the private counselling that she was already undertaking.) The remedy and adjustment which would have addressed the disadvantage would have been for the respondent to pay for the claimant’s private counselling. This would have put the claimant back in the situation of being able to receive counselling so that she could recover and return to work, without being financially disadvantaged as a result. I am satisfied that the respondent was in breach of its duty to make reasonable adjustments when it failed to pay for the counselling.

[338]In relation to the bullying complaint, the position is more nuanced. There was a delay in addressing the bullying complaint when it was first raised. This was due to the absence of both the claimant and Ms Hoyle from the workplace. The respondent found it difficult to address this problem in the absence of both protagonists. I am satisfied that the respondent could have taken some limited steps to address the issue with Ms Hoyle upon her return to work. However, it could not offer mediation until both employees were fit and available to participate. It offered this, although arguably this could and should have been facilitated at an earlier stage.

[339]In terms of a formal complaint and investigation, the claimant was fit to make a formal complaint setting out exactly what she wanted the respondent to investigate. It is not unreasonable for the respondent to want to know what it is being asked to investigate before being required to embark on a formal procedure. Thus, I am satisfied that the respondent did not breach the duty to make reasonable adjustments when it did not start a formal bullying investigation. Had the claimant indicated that this is what she wanted, then I am satisfied that the respondent would have done this as soon as the protagonists were fit to be interviewed as part of such a procedure. I do not accept that this was the sort of egregious bullying allegation which would activate the exception to the requirement for a formal complaint to trigger a formal investigation. In some cases, the allegation is well-known and clear. This was not such a case. Nor was it of such a level of intrinsic gravity that the respondent was duty-bound to investigate against the wishes of the complainant because of its wider duties of care as an employer. As a matter of practicality, it would not be reasonable to expect the respondent to commence a formal investigation without the support or cooperation of the claimant in framing and setting out the allegations.

[340]In terms of addressing the complaint of bullying after the email of 5 February 2023, I am satisfied that, whilst it was eventually addressed, there was a significant delay in the respondent doing so. Once Ms Hoyle was back in work the respondent could have asked the claimant what she was asking for in relation to this allegation. As it was, it was not until the grievance outcome that mediation was recommended and trialed. There was a period between 5 February and mid July 2023 when the respondent did not make the necessary adjustments to address the complaint. Once Ms Hoyle was available for interview, steps should have been taken, in consultation with the claimant, to look into the complaint and see how best to resolve it before the parties’ views became too entrenched to resolve. Therefore, I consider that there was a partial breach of the duty to make reasonable adjustments as set out at paragraph 101 (f) of the claimant’s written closing submissions in relation to addressing the bullying allegation in a timely manner.

[341]The reasonable adjustments contended for at paragraph 101 (a) and (b) of the claimant’s submissions are more difficult to assess as they are rather general. However, on looking at the occupational health report from March 2023 it is apparent that, right from the beginning, the recommendation was that the respondent should have conversations with the claimant to address her underlying concerns at work, that steps should be taken to address interpersonal difficulties, that a stress risk assessment and a WRAP should be undertaken. These issues were not addressed or acted upon in a timely manner. The general approach was to assume that these things could not be properly addressed until such time as the claimant was ready to return to work. However, the failure to address these problems was itself a barrier to the claimant’s return to work. On balance, the respondent was perhaps entitled to wait for a short period before taking active steps to address the issue. However, it waited too long and the claimant was required to submit a grievance in order to get progress in response to the underlying matters of concern and stressors at work. I am satisfied that the respondent was obliged to act more quickly than it did and that it was in breach of its duty to make adjustments as set out at paragraph 101(a) and(b) of the claimant’s closing submissions. Action should have been taken in response to the first occupational health report by no later than 30 April 2023. Likewise, although the email of 5 February could not be completely addressed immediately, it should have been addressed alongside the occupational health evidence from April onwards. Harassment

[342]The complaint of harassment related to disability refers to Mr Sugden insisting on weekly telephone calls. It is a matter of fact that the claimant asked to reduce the frequency of these and Mr Sugden maintained that they were necessary.

[343]The intention behind the weekly calls was a positive one. The respondent, through Mr Sugden, was trying to keep in touch with the claimant and ensure that she did not feel ignored or forgotten. The aim was laudable. Unfortunately, the aim was not achieved. The way that the phone calls were implemented was the problem. The claimant had been absent from work for months on sick leave. She had well documented mental health problems, including anxiety and depression. The claimant had concerns which she wanted the respondent to address but these phone calls did not seem to do this.

[344]Whilst regular contact was needed, it did not need to be weekly. There was little to be gained from these mandatory calls when matters did not develop particularly in between the calls. There was little or nothing to report in terms of changes or developments from one week to the next. A reduction in the frequency of calls would still have achieved the goals of keeping the claimant updated about progress in her case and ensuring that she did not feel ignored. Less frequent calls would not have been so anxiety-inducing or stressful for the claimant. She would have been in a better position to recover her health if she had been given more space to do so. As it was, the parties were trapped in a ‘holding pattern’ whereby Mr Sugden did not feel that he should stop or reduce the frequency of calls as he was concerned that he would be seen to be neglecting the claimant. By contrast, the claimant tried to extricate herself from these calls or, at least, reduce their frequency and duration. She was unable to do so.

[345]Had the calls played a meaningful part in the claimant’s recovery so that she was fit to return to work, then the frequency of the calls might have been justifiable despite the claimant’s protests. Likewise, if the content of the discussions had reduced the need for such lengthy face to face meetings in August and September (on the basis that the risk assessment and WRAP had already been partially/largely addressed over the phone), then the frequency of the calls might have been justifiable. The reality is that the evidence before the Tribunal indicated that the calls were somewhat formulaic and part of a well-intentioned box-ticking exercise. They were not helping to make material improvements to the situation. They achieved little of note. Rather, the respondent could truthfully say that it was not ignoring the claimant and was keeping in touch with her regularly, albeit the calls did little to help the claimant back into work.

[346]I am satisfied that the way that the regime of phone calls was implemented reasonably amounted to unwanted conduct from the claimant’s point of view. It was distressing to her but did not result in any material benefit to her that could not have been achieved just as well by less frequent calls.

[347]As the calls related to the claimant’s disability related absence and the steps being taken to facilitate her return to work, I am satisfied that the unwanted conduct was related to disability.

[348]Whilst the conduct did not have the proscribed purpose, I am satisfied that it had the necessary proscribed effect within the meaning of section 26. The claimant, given her mental health, found them to be a hurdle that she needed to get over each week. The claimant indicated that she needed more and more mental health support when she interacted with the respondent. Subjectively, the calls every week had the proscribed effect on the claimant.

[349]Given the claimant’s disability and the surrounding circumstances of the case, I am satisfied that it was reasonable for the calls to have the proscribed effect on the claimant. Had the claimant made meaningful progress towards a return to work through such regular contact, then it might not be reasonable for her to assert that they had that effect. However, as the claimant made clear, they were not helping her. Effectively she was made more anxious by the requirement to have these phone calls. The conduct was intimidating, hostile and offensive to her given the nature of her disability and the way it undermined her recovery.

[350]The Tribunal appreciates that there is always a difficult balance to strike, in terms of keeping in touch with employees who are off work for mental health reasons without being seen to pester them and get in the way of their recovery. This is often a difficult balance to strike. However, in this case the claimant made it clear that she wanted the calls to be less frequent. A weekly call (maximum 1 hour) is quite a lot of contact between the parties in the circumstances of this case. The same level of support could have been achieved by, for example, halving the frequency of contact, without this undermining the aim of keeping in touch with the claimant. Alternatively, the arrangement could have been to have a weekly call which lasted a maximum of 15 minutes and was a welfare chat, unless there was something specific which required more detailed discussion. In those circumstances, a longer call could have been arranged in advance in order to address such specific issues.

[351]In light of the above, the complaint of harassment related to disability is well founded and succeeds. Victimisation

[352]The claimant’s grievance is the protected act relied upon for the purposes of the claimant’s victimisation claim. The respondent concedes that it amounted to a protected act.

[353]The detrimental treatment relied upon is:a. The 4 hour meeting with Mr Sugden on 29 August.

b. The meeting with Mr Sugden on 30 August.

c. The 5 hour meeting with Mr Sugden on 6 September.

d. The weekly telephone calls with Mr Sugden.

[354]As the discussion in the preceding paragraphs hopefully makes clear, there was nothing intrinsically wrong with Mr Sugden attempting to have such meetings with the claimant. It would have been possible to have such meetings in such a way that they would not have amounted to detrimental treatment. The same is true of the phone calls. Mr Sugden’s actions were well intentioned. The problem lay in the execution. As set out above, the timing and length of the meetings made them into an unnecessarily stressful and distressing experience for the claimant. She needed recovery time and support for her mental health after these interactions. I am satisfied that they amounted to detrimental treatment, as discussed above.

[355]Similarly, for the reasons set out above, the weekly phone calls were unnecessarily frequent and rigid without much corresponding benefit to the claimant in terms of removing the barriers to her return to work. Again, I am satisfied that they amounted to detrimental treatment.

[356]Part of the claimant’s grievance complained of the absence of regular contact and support. She was critical of Mr Hodson’s management style and the difficulty she had experienced in getting one to ones etc. with him. Mr Sugden was introduced as a line manager on the basis that he had a different approach to Mr Hodson and was more assiduous. He was trying to remedy the problem by making sure that he kept in touch with the claimant and discussed everything with her. Unfortunately, in trying to ensure that the claimant could not say that she was being ignored, Mr Sugden went too far in the other direction and insisted on unnecessarily frequent calls. Likewise, the lengthy meetings were an attempt to address outstanding matters raised as part of the grievance. Thus, the protected act was a material influence on the detrimental treatment. It was a significant cause and contributing factor. It does not have to be the sole cause of the detrimental treatment in order for causation to be established for the purposes of the victimisation claim. Consequently, I find that causation is established and that the complaint of victimisation should be upheld. The respondent subjected the claimant to the detrimental treatment because of the protected act. Direct sex discrimination

[357]In following the respondent’s internal policies, the claimant should have been referred to Occupational Health 21 days after her first absence (paragraph 47 of the relevant policy). This did not happen. The respondent offered no good explanation for this breach of policy. Whilst Mr Hodson sought to suggest that the claimant did not want anything to do with work, this is not the picture disclosed by the evidence in this case. The claimant may have been alarmed and overly anxious that she “would die at her desk” or “die of a heart attack.” This may have been an overreaction in the circumstances (the Tribunal is not qualified to say either way.) In any event, this is not a good explanation for the respondent’s failure to refer her to Occupational Health in line with the respondent’s own policy. An occupational health referral would not reasonably be seen as putting the claimant at risk of a heart attack, either at work or elsewhere.

[358]Mr Hodson was eventually prompted to refer the claimant to Occupational Health once the reason for absence on the fit notes changed to mental health issues. By the time that the claimant had been absent on sick leave for 73 days there had been no referral to Occupational Health, no absence management meeting and no KIT forms had been uploaded to the system.

[359]Mr Hodson did comply with the respondent’s procedure when making a referral for the male comparator, Mr Wilkinson. The referral was made within the expected timeframe.

[360]Mr Hodson did not offer the claimant any treatment (e.g. counseling.) He says that this was because the claimant told him that she did not want counselling as she was accessing free counselling. This was not true. The claimant would have had to wait for NHS counselling and chose to pay for counselling privately. At best, Mr Hodson misunderstood what the claimant said to him.

[361]In addition, Mr Hodson did not keep in touch with the claimant on a regular basis. The claimant asked for one-to-ones but they never materialised.

[362]I am satisfied that the claimant has proved the detrimental treatment complained of in this part of her case.

[363]I am further satisfied that she has established that she was less favourably treated than the male comparator in relation to the delayed referral to occupational health. The relevant time frame for the referral was complied with in the comparator’s case.

[364]The claimant did not name a comparator in relation to the other alleged acts of direct discrimination and did not, apparently, rely on a hypothetical comparator for this part of her case. Consequently, the complaints of direct discrimination in relation to those other acts cannot succeed as there can be no finding that the claimant was treated less favourably than a male comparator in relation to offers of counselling/treatment or failure to have regular contact with the employee during their absence.

[365]I am satisfied that the claimant has succeeded in shifting the burden of proof to the respondent based on the difference in treatment of the comparator and the fact that Mr Hodson’s explanations for his actions were not in fact true (e.g. the suggestion that the claimant did not want anything to do with work or would not go to Occupational Health because of a fear of dying at her desk.) I am satisfied that the surrounding facts summarised above, taken together with the respondent’s own procedures, are such that the tribunal could conclude that the late occupational health referral was less favourable treatment because of sex so as to shift the burden of proof to the respondent under section 136.

[366]The respondent has not discharged the shifting burden of proof. It has not satisfied me that the less favourable treatment was, in no sense whatsoever, because of sex. The complaint of direct sex discrimination is partially successful insofar as it relates to the late Occupational Health referral. Time limits

[367]The ACAS EC notification date was 27 November 2023, and the certificate was issued on 8 January 2024. The ET1 was presented to the Tribunal on 2 February 2024. The claimant contended that this meant that any act on or after 28 November was within the primary 3 month time limit. On reflection, I think that this cannot be correct. Three months prior to 2 February 2024 would be 3 November 2023, without any extension of time for ACAS Early Conciliation. In fact, taking into account the Early Conciliation period, the earliest ‘in time’ date for a discriminatory act would be 28 August 2023.

[368]On that basis, the allegation of section 15 discrimination at paragraph 4.3.1 of the list of issues was presented within the time limit. No limitation issue arises.

[369]The allegation of section 15 discrimination at paragraph 4.3.2 relates to acts and omissions which started in February 2023, and which continued throughout 2023 as various managers got involved in the case and attempted to resolve the stressors which prevented the claimant from returning to work. Although the identity of the individuals involved in the process may have changed over time, I am satisfied that this amounted to an act extending over a period (section 123(3)(a)) That act of discrimination continued past the start of September 2023 thus bringing this part of the claimant’s case within the time limit. All of the individuals involved were engaged in the same task: trying to resolve the claimant’s stressors and problems in order to get the claimant back to work. No limitation issue arises in respect of this part of the claim.

[370]The harassment claim is based on Mr Sugden’s weekly phone calls with the claimant. These continued past the start of September 2023 and right up to the end of the claimant’s employment with the respondent. They amount to an ‘act extending over a period’ (section 123(3)(a)) such that the claim is treated as having been presented to the Tribunal within the time limit. No limitation issue arises in respect of the harassment claim.

[371]Likewise, the complaints of victimisation were presented within the limitation period. The detrimental treatment complained of amounts to an act extending over a period and concluding within the time limit such that the claim is treated as having been presented to the Tribunal within the time limit. No limitation issue arises in relation to the victimisation complaint.

[372]Applying the relevant principles to the reasonable adjustment claim I find as follows. Regarding the adjustment at paragraph 101(a) (implementing the occupational health report), nobody within the respondent made a decision not to make the adjustment (section 123(4)). Nor did anyone within the respondent do something which was inconsistent with making the adjustment (section 123(4)(a)). As a matter of practicality, the respondent might reasonably have been expected to start to make the adjustment from May 2023. That said, as far as the claimant knew, she was in correspondence with various individuals at the respondent (e.g. Ms Seex and Mr Burdsall) over the summer period with a view to getting what she felt she needed in order to be able to come back to work. Although the claimant was not satisfied that the respondent had done what was necessary during this period, she was aware of a certain amount of activity within the organisation in this regard. In such circumstances, although the claimant might have hoped that the adjustment would have been made in May 2023, events are likely to have convinced her that the respondent did in fact intend to make the necessary adjustment throughout the summer of 2023 and into September 2023. The change of line manager to Mr Sugden and the fact that she was going through a grievance procedure are also factors which would tend to indicate that the respondent was in the process of making the adjustment. If so, I would conclude that the time limit would only have started to run from the end of August 2023 in relation to this part of the reasonable adjustment claim. In such circumstances, this complaint of breach of the duty to make reasonable adjustments was presented within the time limit.

[373]If I am wrong about that then it is open to me to extend time to hear this complaint on a just and equitable basis. I have concluded that it would be just and equitable to extend time and determine the complaint. It is a relatively short delay in the context of a chronology of events which extends (in effect) over a year. I am satisfied that the delay in presenting the claim has not adversely affected the cogency of the evidence or prejudiced the respondent’s ability to defend the claim. Indeed, the respondent has been able to present a good deal of evidence relating to much earlier events than this. Further, much of the relevant evidence is contemporaneous documentary evidence (such as emails and letter correspondence.) This is less likely to be adversely affected by the passage of time. The claimant had good reasons for not presenting her Tribunal claims earlier. Firstly, she was not well. Secondly, she was trying to resolve matters internally and still hoped to return to work. The grievance procedure was ongoing. Given the complex factual matrix in this case, it would be somewhat artificial to require the claimant to separate out this part of the claim and bring it to Tribunal earlier than many of the main allegations within her case. All of the claimant’s complaints relate to the proper management of her sickness absence after the TIA and the inadequacy of attempts to get her fully fit and back to work. Viewed realistically, all of the complaints are intertwined. There is something of an air of unreality about trying to separate out the different threads of the reasonable adjustments claim as they were all experienced by the claimant as a part of the whole. It is unrealistic, in the circumstances of this case, to expect the claimant to stop part way through a period of significant ill health and internal procedures with the respondent and decide to present some aspects of her case to the Tribunal whilst being able to delay presentation of other parts of the discrimination claims to a later date.

[374]In relation to the adjustment at paragraph 101(b) (addressing the 5 February stressors) this is again a complaint which requires the application of section 123(4)(b). Similar factors are relevant as in relation to the adjustment at paragraph 101(a). To that extend I repeat the points made at paragraphs 372 and 373 above. In effect, the respondent indicated that it intended to make adjustments to address the stressors throughout the summer of 2023, although it did not, in the event, achieve this. Efforts were made to arrange mediation and rebuild the claimant’s relationship with her line manager by reallocating her to Mr Sugden. On that basis, I consider that the time limit did not begin to run until September 2023. If I am wrong about that, I would extend time on a just and equitable basis for the reasons already stated at paragraph 373 above.

[375]In relation to paragraph 101(c) (keeping meetings to a reasonable length), the lengthy meetings complained of took place from 29 August 2023 onwards. It was at that stage that the respondent decided not to make adjustments or did something inconsistent with making the adjustments (s123(4)(a).) That part of the claim was therefore presented to the Tribunal within the applicable time limit. No limitation issue arises in relation to this part of the claim.

[376]On relation to paragraph 101(d) (reducing the frequency of telephone calls) the chronology of correspondence and discussions between the claimant and Mr Sugden suggests that the issue really came to the fore during conversations in July and August when the parties were trying to agree an appropriate amount of contact between the claimant and her line manager during her sickness absence. It is really during this period where the respondent starts to resist suggestions that the frequency of contact should be reduced (section 123(4)(a)). This would mean that the complaint was brought to the Tribunal between 1 and 2 months late. In those circumstances I am content to extend the time limit on a just and equitable basis. I repeat and rely on the factors set out at paragraph 373 in deciding that it would be just and equitable to extend time.

[377]In terms of the failure to pay for the claimant’s counselling (paragraph 101(e)), it will have become apparent to the claimant that she was not going to get counselling via the respondent once this was made clear by the occupational health report on 30 March 2023 which said it was not appropriate to have counselling from two different sources. That, taken together with the other difficulties she experienced in getting the adjustments she needed, meant that, if the respondent was going to fund her counselling it might reasonably have been expected to do so by the Summer of 2023 (section 123(4)(b)). This part of the claim was presented out of time by one to two months. However, I am again satisfied that it is just and equitable to extend time for presentation of this complaint. I repeat and rely upon the factors set out at paragraph 373 in deciding that it would be just and equitable to extend time.

[378]In terms of the adjustments to address the bullying complaint in the 5 February email (paragraph 101(f)), many of the same factors are relevant as in the case of paragraph 101(b) and I repeat the contents of paragraph 374 in that regard. Given the timeline of events in relation to the claimant’s ongoing discussions with the respondent and her internal grievance, there was nothing to indicate to the claimant that the respondent had decided not to make the adjustment. The only stage at which it would have become apparent that the issues were not going to be resolved to her satisfaction would be when the meetings in September failed to resolve matters and it became apparent that the mediation had not resolved the bullying issue and the only other option would be for the claimant to make a more formal complaint (communicated in October 2023). This was all after 28 August, so these claims were presented within the time limit. In short, time did not begin to run until September 2023 so that the claim was presented within the applicable time limit. If I am wrong about that, it would be just and equitable to extend the time limit and hear the complaint, for the reasons already stated above.

[379]The direct discrimination claim relates to the occupational health referral which did not take place until 13 March 2023. This is a discrete complaint of sex discrimination and it is not really possible to say that it is part of a continuing act of discrimination, particularly as Mr Hodson ceased line managing the claimant before 28 August 2023. I think that this complaint was presented to the Tribunal outside the relevant time limit. It is a late claim. However, I am content to conclude that it is just and equitable to extend time to hear this complaint taking into account the balance of prejudice between the parties. As set out above, the claimant has a mental health impairment and was absent from work on sick leave during the relevant period. She was also attempting to take all her complaints through the respondent’s internal procedures to achieve a resolution. This incident, although a different type of discrimination, is part and parcel of the whole chain of events which took place in relation to the claimant following her TIA at the beginning of 2023. It would be artificial to expect the claimant to start proceedings in relation to this aspect of the factual chronology whilst permitting her to wait until the end of the factual chronology to present the rest of her claims. Furthermore, the respondent has been able to present the relevant witness evidence and documentary evidence in relation to this issue (as well as in relation to the other events) and so was not materially prejudiced in defending this part of the case. The factors at paragraph 373 above remain relevant here. On that basis I consider that there is an adequate explanation for the delay and it is just and equitable to extend time and uphold this complaint of sex discrimination. Constructive unfair dismissal

[380]The claimant set out various matters which she asserted amounted to a breach of the implied term of mutual trust and confidence.

[381]The claimant sought assistance from various managers in relation to her return to work. Some of them did not respond at all to the claimant’s requests for help (George Fisher, Julia Morrison, and Jax Effiong.) Mr Hodson failed to provide the necessary support and did not stay in adequate contact or make timely occupational health referrals. Hence, she was given a different line manager.

[382]Jenni Seex did offer the claimant a chance to discuss her situation and to vent her feelings about it. However, over and above this, she did not take any formal steps to support the claimant back to work using practical steps and/or meetings. Mr Burdsall did become involved and appeared to want to address some of the claimant’s concerns. However, gaps in the paper trail and the absence of witness evidence from him mean that it is unclear what practical steps he took to address the relevant issues so that the claimant could return to work. Leon Parkes did not take any proactive steps but, given his position within the organisation, this was not necessarily to be expected. Certainly, the involvement of the various managers (apart from Mr Sugden and Ms Wilson and Mr Jordan) was somewhat ad hoc. Jane Wilson did address the claimant’s grievance and, in providing an outcome, made recommendations for the steps which could and should be taken in order to get the claimant back to work.

[383]As set out in the earlier sections of this judgment, few meaningful steps were taken to address the claimant’s workplace stressors until the meeting on 6 September. By this point the claimant’s trust in the respondent had been significantly eroded given that she had been absent from work since December 2022. The situation was exacerbated by the weekly phone calls with Mr Sugden. The claimant found these to be stressful but they did not produce much (if any) practical benefit to her. They were repetitive and did not move matters forward towards resolution in any meaningful way. In addition, the claimant asked to reduce the frequency of the phone calls but this request was denied.

[384]For the reasons already stated, the way the lengthy meetings with Mr Sugden were carried out in August and September further distressed the claimant and eroded her confidence in the respondent.

[385]The claimant also relies upon the acts of discrimination which have already been upheld in earlier sections of these written reasons.

[386]I am satisfied that these events, when viewed cumulatively, amounted to a fundamental breach of contract. There was a breach of the implied term of mutual trust and confidence. Whilst many of the individual managers intended to help and assist the claimant, that is not what happened. Whilst they were well intentioned, many of the actions amounted to acts of discrimination. It cannot be said that the respondent acted with reasonable and proper cause in such circumstances.

[387]I am satisfied that the respondent committed a repudiatory breach of contract in that it breached the implied term of mutual trust and confidence.

[388]The last straw relied upon by the claimant is the email from Mr Sugden on 3 November (p573). In that email he asked her what it was that was preventing her from recovering and returning to work. The claimant asserts that this interaction was highly frustrating to her when looked at in context. The claimant had already been explaining how the weekly calls were causing her additional stress and that she needed additional time to recover. When viewed in its proper context and against the backdrop of repeated phone calls and lengthy meetings, it is reasonable to conclude that this was frustrating for the claimant as, even now, Mr Sugden appeared not to understand her position (despite her best efforts to communicate with him.) This was sufficient to constitute a last straw which triggered the resignation. It certainly added something material to the course of conduct which preceded it.

[389]The claimant resigned in response to the respondent’s breach of contract. It cannot be said that she delayed or affirmed the contract.

[390]I am satisfied that the claimant was constructively dismissed and it was not a fair dismissal. The claim of constructive unfair dismissal therefore succeeds.

[391]Further, I am persuaded that, following the principles in Driscoll (referred to above), a significant and important portion of the conduct relied upon as part of the constructive dismissal claim, also amounted to harassment within the meaning of section 26 Equality Act. The harassment formed an important aspect of the repudiatory conduct relied upon. The harassment sufficiently influenced the overall repudiatory conduct. On that basis, I am satisfied that the constructive dismissal was itself an act of harassment and, therefore, discriminatory. Next steps and practicalities

[392]Given that the claimant’s claims have largely been upheld, it will now be necessary to list a remedy hearing in the case (unless the parties are able to resolve the issue of remedy by agreement). To that end, the parties are asked to contact the Tribunal to provide dates of availability for a 1-day remedy hearing covering a period of 6 months (from the date this judgment is sent out to the parties) so that the remedy hearing can be listed during this period. Should either party consider that a longer remedy hearing is required, they should accompany their dates of availability with an indication of how long they consider the hearing should be. If the parties think that particular case management orders are required to prepare for the hearing, they should provide written proposals with their dates of availability.

[393]The parties should provide this information within 21 days of the date that this judgment is sent to the parties. On receipt of this information, the Tribunal will provide a notice of hearing and any relevant case management orders for the remedy hearing. Approved by: