Mrs K Robinson v Howden Joinery Ltd: 2401519/2024 and 2402040/2024
EMPLOYMENT TRIBUNALS
Case No 2401519/2024, 2402040/2024
Between
Mrs K RobinsonClaimantHowden Joinery LtdRespondent
Before
Employment Judge Phil AllenMs R Morgan (instructed by counsel) for claimantMs S Firth (instructed by counsel) for respondentDate 7 October 2025
JUDGMENT
[1]At the relevant time the claimant was a disabled person as defined by section 6 of the Equality Act 2010 because of coeliac disease but not because of psoriatic arthritis.[2]As it was just and equitable to extend the time limit, we do have jurisdiction to determine the claimant’s claim of sex discrimination arising from the pay reduction in February 2023 (issue 5.1.1), even though that claim was not entered at the Tribunal within the applicable primary time limit.[3]The complaints of direct sex discrimination are not well-founded and are dismissed.[4]The complaints of direct disability discrimination are not well-founded and are dismissed.[5]The complaint of unfair dismissal is not well-founded and is dismissed. The claimant was not dismissed.[6]The complaint of unauthorised deduction from wages is not well-founded and is dismissed.
REASONS
[1]The claimant was employed by the respondent from 18 July 2016 until her resignation on 14 March 2024 (effective on 15 March). She was a Depot Manager. The claimant alleged that she was directly discriminated against on grounds of sex and/or disability, was constructively unfairly dismissed, and that unauthorised deductions were made from her wages. The respondent denied all of the complaints. Claims and Issues[2]At a preliminary hearing (case management) on 24 October 2024 the issues were identified, and a list of issues was appended to the case management order produced following that hearing. At the start of this hearing, both parties agreed that the list of issues remained the issues which needed to be determined.[3]That list of issues is appended to this Judgment.[4]Since the preparation of the list of issues and prior to this hearing, the respondent had accepted that the claimant had a disability at the relevant time as a result of gall bladder problems and liver fibrosis. At the start of the afternoon of the first day of the hearing, the respondent also accepted that the claimant had a disability at the relevant time as a result of fibromyalgia, irritable bowel syndrome, back problems, symptoms of menopause, and mental health impairment. The claimant’s counsel confirmed that the autoimmune issues were part of the fibromyalgia and so were no longer being relied upon as a separate disability. That meant that we only needed to decide whether the claimant had a disability at the relevant time (agreed as being November 2023 to January 2024) by reason of coeliac disease and/or psoriatic arthritis.[5]It was agreed at the start of the hearing that we would determine the liability issues first (with the remedy issues only being determined later, if the claimant succeeded in any of her complaints). It was agreed that the issues of contributory fault, Polkey and ACAS uplift would also be determined at the same time as the liability issues (if they were being advanced and were being relied upon). There was also a discussion about, and agreement upon, what it was we were being asked to determine in the claims for unauthorised deductions from wages, alongside the liability issues.
Procedure
[6]Both parties were represented by counsel at the hearing.[7]The hearing was in-person with both parties and (with two exceptions) all witnesses attending in person at the Employment Tribunal in Manchester. On the first morning, the claimant applied for the hearing to be conducted as a hybrid hearing for one of her witnesses only, as he wished to attend by CVP remote video technology following recent injuries. The respondent did not object to that witnesses’ evidence being heard remotely and we were able to facilitate a hybrid hearing for the third day by changing the room in which the hearing was conducted so that the necessary facilities were available on that day. We heard Mr Ayrton’s evidence remotely and conducted the hearing as a hybrid for his evidence. On the morning of the third day. Ms Stiles also attended remotely and, as the respondent did not object to her evidence also being heard remotely, her evidence was also heard remotely by CVP.[8]We were provided with a bundle of documents which (initially) ran to 612 pages. On the first morning, the respondent sought to add pages 613-642 to the bundle, having provided copies of the pages to the claimant late on Friday afternoon (which the claimant had only seen on Saturday morning). The claimant, quite understandably, objected to the late provision of the additional documents/pages, but after having the morning to consider them only objected to three specific pages being added to the bundle.[9]We briefly heard submissions from the parties about why they believed that the pages in dispute (629-631) should, or should not, be considered by the Tribunal. We adjourned to reach a decision, before returning to provide our decision and brief reasons for it. The disputed pages related to Mr Crosby. We agreed with the claimant’s submission that the documents should have been identified and provided much earlier than they were. It was clear that we were going to hear evidence and argument about Mr Crosby’s circumstances and the relevance of the documents to that evidence. We decided that it was preferable for us to have those pages in front of us in the bundle of documents when we heard that evidence/argument and therefore decided that those pages should be added to the bundle.[10]We read only the documents to which we were referred either in evidence or by the representatives during the hearing. There were many documents to which we were not referred. Where we refer to a number in brackets in this Judgment, that is a reference to the page number in the bundle.[11]We were provided with witness statements from each of the witnesses called to give evidence. We read all of the witness statements on the first morning of the hearing.[12]We heard evidence from the claimant, who was cross examined by the respondent’s representative, and we asked her questions. Her evidence was heard from the start of the afternoon on the first day until the end of the morning on the second.[13]The claimant also called the following witnesses: Mrs Laraine Cullen, her mother (who has never worked for the respondent); Mr Christopher Greenhow, previously area manager and line manager for the claimant in 2022; Miss Jo-Anne Cribben-Lea, a depot manager who left the respondent in March 2024; Mr Jamie Walker, who was an assistant manager at Morecambe depot from early 2022 until late 2023; Mr Paul Ayrton, a depot manager who replaced the claimant at Morecambe and who retired from the respondent in 2024; Mr John Pearson, who had an account with the respondent and had known the claimant for several years; Ms Linda Stiles, formerly a member of the respondent’s HR department; and Mr Martin Beck, an employee in the Morecambe depot until he retired in 2023. Their evidence was heard in the afternoon of the second day and part of the morning of the third. They were each cross-examined and asked questions (as required). The respondent’s counsel confirmed, on the first day, that she had no questions for Mr Beck and therefore he was not required to attend the hearing to confirm his evidence (albeit that we read his statement and took it into account).[14]We heard evidence from the following witnesses for the respondent: Mr Ian Feeley, area manager – north west north; Mr Paul Jones, at the relevant time regional director for the north west; and Mr Brian Buchan, at the relevant time regional director for the north east. Each witness was cross-examined by the claimant’s counsel, and we asked questions. Mr Feeley’s evidence was heard at the end of the morning and during the afternoon of the third day, and the other two witnesses’ evidence was heard on the morning of the fourth.[15]After the evidence was heard, each of the parties was given the opportunity to make submissions. They each made their submissions in writing, supplemented with oral submissions. We read the written submission documents provided, prior to oral submissions being heard.[16]We reserved our decision. We used the fifth day listed to consider and reach our decision (in chambers). The Judgment and the reasons for it are contained in this document.[17]During the hearing, as reasonable adjustments for the claimant, we took a break every hour and we took a break when she requested it.
Facts
[18]The claimant worked for the respondent as the depot manager at Morecambe from 18 July 2016.[19]We were provided with the claimant’s contract of employment (142). That recorded that her location of work was Morecambe, but went on to say, “You may be required to work in another location, for current rules relating to mobility and transfer you should refer to section 1.13 of the Employee Handbook”.[20]We were not provided with a section numbered 1.13 in an employee handbook, but we were provided with section 1.10 of the handbook (628) which was headed “Mobility & Transfer” which said: “Your normal place of work is detailed in your contract of employment. The Company has the right in its absolute discretion, to transfer you on a temporary or permanent basis to any other Company location. We will of course take into account your individual circumstances in making decisions about mobility and transfer, but the Company’s decision in this regard will be final.”[21]The claimant’s employment contract also had provisions regarding bonus and sickness. The former cross-referred to the respondent’s Depot Manager Bonus Scheme. We were not provided with a document which had that specific title, but we were provided with an addendum to the handbook which updated the depot bonus (625) which said that a depot employee qualified for their bonus, provided that they were actively in work for three out of four weeks in any relevant bonus period (excluding authorised annual leave). We were told that there were thirteen bonus periods per year for the respondent, each of four weeks. The addendum also recorded that, prior to January 2022, part time employees who worked less than 32 hours per week would receive half bonus and those who were contracted to 32 hours or more would receive a full bonus. Effective from period four 2022, it said “If you are eligible for depot bonus it will be calculated on your contracted hours as a proportion of 44 hours per week”.[22]We were also provided with a document headed other conditions applicable to all bonus schemes (381). In that document, the respondent reserved the right to make deductions from bonus payments for absences of shorter than four weeks and “Bonus entitlement for Company bonus schemes will cease after four consecutive weeks of absence”.[23]We were provided with the respondent’s grievance resolution policy and procedure (230). The procedure provided for an informal procedure as step one, a formal procedure as step two, and an appeal procedure as step three. Neither party highlighted any specific timescales within the policy, but the policy said that one of the specific aims of having an effective grievance procedure was to “Promptly resolve issues avoiding the unnecessary escalation and disruption that can result” and it was said “The informal procedure is designed to enable employees to resolve concerns as promptly and easily as possible”.[24]In her evidence and in her claim form, the claimant referred to a time when her area manager had been Richard Gerrard. We did not hear evidence from Mr Gerrard. It was the claimant’s evidence that he was hostile to the claimant and did not want her in her role. She alleged that he undermined her, and she did not feel supported at the time. Mr Gerrard left the company prior to the issues which we needed to determine. That period appeared to be important to the claimant, but did not add anything to the decisions which we needed to make.[25]The claimant was then managed by Mr Greenhow, someone who gave evidence for the claimant. It was the claimant’s evidence that he showed her empathy.[26]The claimant suffers from (and has suffered from) complex medical problems. The claimant’s own witness statement contained very little detail about those issues, but we were provided with a disability impact statement prepared by the claimant (454). The claimant was taken to some medical evidence in cross-examination and referred us to one other report during re-examination. That report was dated 28 May 2024 and provided a detailed overview of the claimant’s complex medical history, which we do not need to reproduce in this Judgment. The claimant emphasised to us during her cross-examination how seriously unwell she was during 2022, 2023 and early 2024, in particular as a result of her liver issues (as well as her many other conditions). In a summary at the end of the 28 May 2024 report it said (461): “I can say that the last seven years has been very difficult and complex for Mrs Robinson with her physical and mental health being affected, and having needed several investigations and referrals to multiple hospital specialists, procedures, emergency surgeries, urgent scans and continuous follow up. This has affected her work which has led to increased anxiety and stress which has become a vicious circle. She was always reluctant to take time off from work”[27]We did not need to consider most of the medical evidence provided, as the respondent accepted that most of the impairments relied upon where disabilities at the relevant time and we were not referred to it. The two impairments in dispute were coeliac disease and/or psoriatic arthritis. The claimant’s impact statement did not identify the specific impact on her day-to-day activities of those particular impairments; it did refer to both coeliac disease and psoriatic arthritis within a list of varying diagnoses but provided no specific detail about either condition. It was said, in questions put on her behalf and in submissions, that the claimant had special dietary requirements whilst employed by the respondent (as a result of her coeliac disease), but the claimant did not give evidence that she had (or does).[28]In the report of 28 May 2024 from Dr Jalil (460) it was said that the claimant had been reviewed by rheumatology in October 2020 “and at this time she was told she might have some form of psoriatic arthritis”. The same report said that when reviewed In February 2021 “she was still under the umbrella of possible psoriatic arthritis”. It said that in June 2021 “she still had the impression of possible psoriatic arthritis”.[29]In the report of 28 May 2024 from Dr Jalil (460), it was said of coeliac disease, that in January 2022 “During this time Mrs Robinson continued to be under the gastroenterologist for her symptoms and because abnormal blood tests and a positive coeliac serology despite her two normal biopsies’”. In a letter from a consultant rheumatologist (Dr Bilgrami) of 10 November 2022 it was said (577) that a current diagnosis/problem was “Previously suspected coeliac disorder, serology and OGD with duodenal biopsy not verified this”.[30]In early 2022 the claimant agreed with Mr Greenhow that she did not need to work every Wednesday. It was the claimant’s evidence that she worked on a Wednesday when she could and often did, but it was agreed that she did not have to work if she was unable to do so. She lived half a mile from the depot and was contactable when not in. That was an ad hoc and temporary arrangement to assist the claimant pending the operation which she needed. That operation took much longer than initially expected to be arranged.[31]The management of the claimant changed from Mr Greenhow to Mr Ian Feeley in December 2022. There was no hand-over between the managers.[32]The claimant met with Mr Feeley and Ms Spencer (an HR business partner from whom we did not hear evidence) on 6 February 2023. It was the claimant’s evidence that the meeting was arranged at her request because she wished to provide information about her health conditions. It was Mr Feeley’s evidence that the meeting was arranged because he believed the claimant’s sickness rating for the previous year was incorrect, because it did not match what he had been told by Mr Jones (the regional manager) about the claimant’s absences. It was not in dispute that the claimant’s hours of work were discussed at the meeting. The claimant agreed to a change being made to her working hours, so that she was no longer required to work Wednesdays and she no longer needed to work the two Saturdays a month which she had previously needed to work. In her evidence, the claimant said that she agreed to make it formal. In his evidence, Mr Feeley said that the claimant asked to reduce her working hours, so she didn’t work on Wednesdays or Saturdays (and he said it was standard procedure to reduce her pay accordingly).[33]In his witness statement (paragraph five), Mr Feeley’s evidence was that he wanted to hold a return-to-work meeting with the claimant when she returned from a period of absence and that was why he arranged the meeting on 6 February. When cross-examined, Mr Feeley stated (incorrectly) that he had not described the 6 February meeting as a return-to-work meeting. Mr Feeley had provided an account of how the meeting came about when he was interviewed by Mr Buchan on 1 February 2024 as part of the investigation of the grievance appeal (287). On balance, and as Mr Feeley gave contradictory evidence about what had led to the meeting, we accepted the claimant’s account that the meeting was arranged at her request.[34]The agreement reached was confirmed in a letter sent following the meeting. The letter of 8 February sent following the meeting (146), recorded that Wednesdays and Saturdays would be non-working days, that the new hours would be 32 per week with a statement of the reduced annual pay and “The business will be open to discussing you returning to full time hours should you request this”. It was the claimant’s evidence that she continued to attend work on some Wednesdays and Saturdays.[35]The claimant’s evidence was that the 6 February meeting had been noted, and she was asked to sign the notes. No notes were provided to us. It was the claimant’s evidence that she provided a list of her conditions to Mr Feeley at that meeting. We were not shown the specific list provided. It was also the claimant’s evidence that she said that if they wanted to refer her to occupational health then she was more than willing to be referred. Mr Feeley denied that he was shown a list or that the claimant referred to occupational health in the meeting. We noted that the respondent failed to provide notes of the meeting and did not call Ms Spencer to give evidence, even though it could have done so. We have already noted a discrepancy in Mr Feeley’s evidence about the meeting. As a result, we preferred the claimants’ evidence to that of Mr Feeley about what she said and what she showed to Mr Feeley at the meeting. However, we also accepted Mr Feeley’s evidence that he could not recall having been shown the list of conditions and found that he did not take into account what had been recorded on it, when he made subsequent decisions.[36]It was the claimant’s evidence that she understood why it was being done, that is that she would only be paid for the hours she would work as formally agreed. She highlighted that because she chose to work some time on Wednesdays and Saturdays, she was not paid for that work. She also gave evidence that managers were paid for four Saturdays even thought they were only required to work two, and she contrasted that position for other managers with her own position where she was paid for no Saturdays but in fact worked for some.[37]In cross-examination, the claimant accepted that she authorised the change to her pay in February 2023 when she agreed to the reduced hours for which she would be paid.[38]In the bundle, were all the messages exchanged between the claimant and Mr Feeley from December 2022. Their tone was entirely amicable and included positive comments and emojis.[39]The claimant’s evidence was that Mr Feeley was frequently aggressive during meetings and conference calls. We heard evidence from the claimant, Mr Walker, and Mr Ayrton, that on at least one occasion Mr Feeley had said in a Teams call that he would drag the staff out of their branches kicking and screaming if they did not meet their figures. Mr Feeley did not expressly address that in his witness statement and was not questioned about it in the Tribunal. In the notes of the interview with Mr Feeley undertaken as part of the informal grievance process on 22 December 2023 (220), he was recorded as saying that there were many tough teams calls, he could not remember that specific call or that specific statement, but it was the sort of thing that he would have said (the note recorded Mr Feeley as having added that he was clear that underperformance would have to be dealt with).[40]On 2 August 2023 the claimant had a gall bladder operation. After the operation, further medical issues occurred. The claimant was absent from work for 3 to 17 August and 25 August to 3 September. A fit note dated 2 August 2023 (448) recorded that the claimant would not be fit for work for two weeks due to laparoscopic cholecystectomy. A fit note dated 25 August (449) recorded that the claimant would be absent from 25 August to 8 September due to abdominal pain and perimenopausal bleeding under investigation. The claimant was not paid a bonus for the relevant period during which she was absent.[41]There appeared to be some dispute about what it was Mr Feeley knew about the claimant’s health in 2023. He accepted that he knew she had health issues, and he knew about her gall bladder problems/operation, and the respondent’s counsel accepted that he also knew about her liver fibrosis. He accepted that he had observed (based upon was said by Mr Pearson) that the claimant’s skin used to go red and blotchy. He denied knowing that she frequently had to rush off to the toilet, that at times her stomach appeared bloated, that he knew that she had issues which impacted upon her ability to drive or which meant that when travelling she need to car share, or that she had specific dietary requirements. We were not shown any documents which recorded him being informed about those matters. We have already addressed what he was shown at the meeting on 6 February.[42]It was not in dispute that, at some point prior to 9 November 2023, Warren Horrocks the depot manager at Lancaster, said to the claimant that she was keeping her seat warm in Morecambe for Mr Horrocks. The claimant later relied upon this conversation as showing that others knew about the claimant’s move before she did. Mr Horrocks was interviewed by Mr Buchan as part of the grievance appeal investigation on 5 February 2024 and we were provided with notes (291) in which he was recorded as having said the following when asked about whether he had said that “Yeah I said that it was joke … It was a bit of banter”. Mr Horrocks was not appointed to the role of depot manager at Morecambe when the management changes were made, he was appointed to be the depot manager at Kendal.[43]Mr Feeley’s evidence was that he did not speak to anybody about the proposed depot management changes prior to 9 November 2023, except for to his manager, Mr Jones. In the notes of his interview with Mr Buchan on 1 February 2024 (290), as part of the grievance appeal investigation, Mr Feeley was recorded as having said “Nothing was communicated out before those 121 meetings, we don’t do that, its not fair. The only conversation I had with Warren at Lancaster was if the opportunity came up for a bigger depot would you consider it? He said absolutely that was it nothing more”[44]On 9 November 2023 the claimant met with Mr Feeley. She had been told that it was intended to be a performance one to one meeting, and she took the required information with her. The meeting was arranged in Fleetwood, to which the claimant needed to travel. In fact, the purpose of the meeting was for Mr Feeley to tell the claimant that her depot would be changed. We were shown a note of what he had intended to say (150). He did not say all of it (or very much of it), as the claimant left the discussion. Mr Feeley had intended to inform the claimant about what was proposed for salary and bonus, but the claimant left before those things were said. Amongst the things recorded in the note were: “I’m changing things up in the area You will come out of Morecambe depot and will go into either Lancaster depot or you can open the new depot in Carnforth … You will do a Handover with the new manager in Morecambe in P13 and then start in Lancaster in P1 or you will help me out around the area at the start of next year until Carnforth needs your focus Lancaster/Carnforth salary is [figure] However you will stay on your salary of [ higher figure] pro rata [figure] You have earned 12,757 in bonus at Morecambe from P1-11 so I will guarantee you a bonus of 1160 pm until the end of 2014”[45]On the same day or the following day, Mr Feeley also spoke to three other depot managers and informed them that their depots were being changed. Mr Ayrton, who was approaching retirement, was moved from Kendal (a larger depot) to Morecambe. Mr Horrocks was moved from Lancaster to Kendal (a larger depot for him). Mr Cowell was moved from Nelson to Whitebirk Blackburn (a new depot). Mr Feeley invited them all to a performance meeting, albeit that was not what the meeting was intended to be. Fleetwood was chosen as a central location. Mr Ayrton’s meeting took place before the meeting with the claimant, which meant that he was aware that the claimant was to be moved before she was. Mr Feeley could not recall whether the meeting with Mr Horrocks was in Fleetwood or Lancaster (the claimant thought it had been in Lancaster).[46]In cross-examination, the claimant said that she had moved depots in the past in a previous job and would not have been unwilling to move at any other time, it was because she was being asked to move at a time when she was in such ill health, that she objected to moving. She explained that she would need to stop having her supportive team around her, would need to tell a new depot about her health issues, and that was why she did not wish to move at that time. As she left the meeting with Mr Feeley, she did not explain those reasons to him at the time.[47]All the respondents’ witnesses gave evidence that shuffling depot managers was not unusual. Mr Jones said that changes also took place in Merseyside at the same time as the change which involved the claimant.[48]Following the meeting, the claimant telephoned Mr Jones, and she also spoke to Mr Feeley by telephone twice in the days shortly after the meeting. The claimant asked Mr Jones about the end of the lease at Lancaster as she believed it was due, something which he checked and then informed the claimant that it was not. Both the claimant and Mr Feeley gave evidence that the claimant was clear that she did not intend to work at the Lancaster depot. We heard evidence about the words she used, which made clear that she did not wish to work in Lancaster.[49]After the claimant made clear that she did not wish to move to Lancaster, the previous assistant manager (who was female), was appointed by Mr Feeley to be the depot manager (after she applied for the position). In addition, the female assistant depot manager at Nelson was appointed to be depot manager by Mr Feeley.[50]In his witness statement, Mr Feeley set out the reasons he gave for wishing to move the claimant and others. He said that he wished to look at shuffling the depot managers from the Nelson, Kendal, Morecambe, and Lancaster depots, because the managers in Kendal and Morecambe had had been in the depots for a period of time and he wanted to refresh the area. He referred to wanting a fresh set of eyes and the depots being in the same geographical area. He said that he felt that the claimant would be a good fit for the Lancaster depot (he corrected his statement which referred to trying to improve it, when it was in fact performing well) or to get the new Carnforth depot up and running to a good standard. In the account he gave to Mr Jones, when interviewed as part of the informal grievance on 22 December 2023, Mr Feeley said (221) “I wanted fresh eyes in those depots, new thinking. I felt KR’s experience would be great in getting Carnforth off the ground quickly, and potentially be the fastest growing new depot the region has seen”.[51]In his evidence at the Tribunal hearing, Mr Feeley said that performance was not the reason for moving the claimant. In his witness statement he said that a reason for the move was because Morecambe was not meeting its targets. Mr Jones and Mr Buchan both confirmed in cross-examination that performance was not a reason for the move (although Mr Jones explained that the regions’ performance was a reason for the changes being made).[52]In his witness statement, when detailing his conversation with Mr Jones about the moves, Mr Feeley said that he recalled discussing with Mr Jones that moving the claimant to the Carnforth depot may also support her health issues because Carnforth was a smaller depot and, as a new depot, it would be envisaged to have fewer issues. In the interview with Mr Jones on 22 December 2023, following the passage quoted at paragraph 50 above, Mr Feeley was also quoted as saying “I did feel that it would be supportive of her health situation too”. When cross-examined about the connection between the claimant’s health and being moved, Mr Feeley drew a distinction between the reasons for his decision and the fact that he also felt that moving to Carnforth might be beneficial for the claimant’s health. In his evidence, Mr Jones described his understanding as being that the proposed move could be a health benefit for the claimant, but that was not the motivation behind the moves.[53]Following the meeting on 9 November, the claimant was absent from work on ill health grounds, and she did not return to the office to undertake work following that meeting. We were provided with fit notes which covered the periods of absence. Those notes (450) recorded the reasons for absence as being: stress at work and abdominal pain (on 20 November 2023), stress at work and awaiting gastric investigations (on 18 December 2023), stress at work under gastroenterology (on 17 January 2024), and stress at work and recent grievance (on 14 February 2024). The claimant’s evidence was that she sent all fit notes to HR but also sent them to Mr Feeley. Mr Feeley denied seeing any fit notes. We were not shown any messages, emails or other documents, which showed any fit notes being sent to Mr Feeley. It was Mr Feeley’s evidence, that after the 7 November meeting (and, presumably, the two subsequent telephone conversations), he did not deal with the claimant directly, HR did.[54]On 14 November 2023 the claimant spoke to Ms Patel, a Lead Employee Relations Specialist, and emailed to ask for an informal grievance meeting to take place. On 16 November Ms Patel responded to ask the claimant to email across her written concerns, which the claimant did that evening. The written grievance (153) said that the claimant felt like she had been treated in a way which made her feel uncomfortable and different from colleagues, she said that was because of her gender or sickness, and said she was clearly being set up to fail. She said, “I feel the way I’ve been treated is a direct result to put me under more stress to finally get me to leave the company, I’ve had several issues over years which I believe is a direct result of where we are today”.[55]On 22 November Ms Patel emailed to explain that Paul Jones, Regional Director, would hold the meeting for the grievance. The claimant was asked whether she preferred a face-to-face meeting or Teams meeting as she was off sick. The claimant responded the next day to say she would attend a face-to-face meeting and would attend whilst off sick. On 30 November Ms Patel said that the first opportunity for the meeting was 15 December. In evidence, Mr Jones explained his nonavailability for that period due to holiday and a company meeting in Scotland. On 2 December, the claimant asked if it could be arranged more quickly and sought confirmation of the details. On 12 December, Ms Patel confirmed the time and location of the meeting.[56]The informal grievance meeting took place on 15 December 2023. It was conducted by Mr Jones and attended by Ms Spencer. After the meeting, investigatory meetings were conducted with five people (including Mr Feeley) between 19 and 22 December 2023. The outcome was set out in a letter of 10 January 2024 (224). Mr Jones started his decision letter by apologising to the claimant for the delay in responding to her concerns, which he said was to ensure that her concerns were appropriately looked into. He did not find that the claimant had been treated differently due to gender or in relation to health. He said he would like to hold a facilitated meeting with the claimant and Mr Feeley, in order to discuss and agree ways of working moving forward, when the claimant was ready to return to work. The claimant was asked to contact the HR advisor if she was happy to participate in such a meeting. In the covering email attaching the decision letter (223), Ms Patel thanked the claimant for her patience.[57]We were shown emails between Mr Feeley and others, which the claimant was not copied into and would not have been aware of at the time. On 7 January 2024 (222) Mr Feeley asked Ms Spencer to send the claimant a letter informing her of the change of depots to the Carnforth depot, with details of the retained salary and protected bonus of £1,160 per month for 2024 (to be reviewed in period one 2025). That request was not actioned until 2 February 2024. In part it appeared that there may have been some delay due to the absence of a cost code for the new depot or delay in it being identified. The letter sent to Mr Cowell regarding his transfer to a new depot, effective from 1 January, was also sent at the start of February (295).[58]On 11 January the claimant emailed Ms Patel and asked to progress her grievance to the formal stage under the procedure (250). She did so by providing the original grievance and setting out what she was seeking. One of the things she asked was where she was to return to work on 18 January as she was hoping to return after consulting with her doctor. She followed up her email the following day seeking confirmation that it had been received. Ms Patel acknowledged receipt on 12 January. An invite to the formal grievance meeting was sent by Ms Patel on 18 January, with the date for the meeting being 29 January.[59]In response to the claimant’s question of where she was to return to work when she was fit enough to return, on 16 January (243) Ms Patel emailed and said what is set out below. She also proposed a meeting on Monday 22 January at a depot of the claimant’s choice (with paid time off from 18 January if she was fit enough to return): “Having spoken to Ian, I am advised that HJ Carnforth Depot was offered to you and details of this have been discussed with Ian. However, as Carnforth is still due to open around Period 8/9, Ian would like to meet with you to conduct your return to work and discuss your role and what this looks like in the interim period.”[60]On 17 January the claimant asked whether Mr Jones would also be present at the meeting, and she referred to the facilitated meeting as set out in the informal grievance outcome letter. On 19 January Ms Patel responded to the claimant (258) and explained that a return to work meeting would usually be conducted by the line manager, whereas the facilitated meeting would be something different. She went on to say: “As you have requested Paul is also present in this meeting, we have made adjustments that this meeting will be a hybrid meeting of Paul holding a facilitated meeting between yourself and Ian and for your return to work to take place. As such please can you confirm which depot is preferrable for this meeting so I can let Paul and Ian know accordingly”[61]On Sunday 21 January the claimant emailed Ms Patel and said she would not be attending the meeting. In the Tribunal hearing it became evident that the reason the claimant did not attend was because she had taken the use of the word “hybrid” in the email to mean that Mr Jones would attend by video only. That was an error, as the word was used to describe what would be discussed in the meeting, not the manner in which the meeting would be conducted. The claimant’s misunderstanding was not clear from the emails at the time, and the meeting did not go ahead.[62]On 24 January the claimant objected to the person who it was first proposed would conduct the formal grievance meeting. On 26 January the claimant was informed that an alternative chair for the formal grievance meeting had been identified, which was Brian Buchan, the regional director for the north east. The date for the meeting was not changed even though the conducting manager was changed.[63]The formal grievance meeting chaired by Mr Buchan took place on 29 January. Notes were taken (273). The claimant attended accompanied by Mr Ayrton as her companion. Ms Patel attended. Within the notes, the claimant was recorded as saying “I’ve got to explain to you that moving me to another depot is part of my contract I get that but moving me to the lowest performing depot without any criteria backing it is wrong”.[64]Following the meeting, Mr Buchan and Ms Patel met with Mr Jones on 30 January (284), Mr Feeley on 1 February (287) and Mr Horrocks on 5 February (291). Those investigation meetings were fully noted.[65]The claimant commenced ACAS early conciliation on 31 January. It continued until 8 March 2024 (and the claims to the Tribunal were entered on 16 and 31 March 2024).[66]The 2 February letter regarding the claimant’s transfer (298) confirmed that effective 1 January 2024 the claimant had been transferred to the Carnforth depot as depot manager, with her stated existing salary remaining “and additionally you will receive a £1,160 bonus per period (which will commence upon your return to work) to be reviewed at the end of 2024”. It was stated that the Carnforth depot was expected to open in P8/9 when it had been due to be P6. The exact nature of the tasks to be undertaken by the claimant on her return to work were said to be dependent upon when the claimant felt ready to return to work, but it was said: “Ian would personally ask that you assist him with manager holiday cover within the area; not withstanding within a reasonable travel distance for you. Ian would also appreciate your support and time on project work for the area … From Period 6 onwards, your focus would move towards preparation for Carnforth depot”[67]The claimant was sent a letter setting out the outcome to the formal grievance by email on 9 February 2024 (301). In the covering email, Ms Patel apologised to the claimant for the delay in coming back to her and thanked her for her patience. The letter (302) set out in detail Mr Buchan’s decision about the issues raised in the formal grievance. He upheld an issue about annual leave. He did not uphold the other elements of her grievance. He concluded that a facilitated meeting was necessary and proposed that should be arranged (highlighting that all would attend face to face).[68]On Sunday 11 February the claimant appealed against the outcome of the formal grievance (315). On 13 February the claimant emailed Ms Patel checking she had received the email. Ms Patel responded approximately thirty minutes later and explained that Karen Cowley would be in contact to arrange the meeting. In the Tribunal, the claimant stated that she had no issues with Ms Cowley. Ms Cowley sent a letter by email on 20 February inviting the claimant to a grievance appeal meeting on 29 February. On 21 February the claimant emailed to say that she was disappointed that the appeal would not take place until 29 February and explained why.[69]The grievance appeal meeting took place on 29 February. It was chaired by Andy Richmond, the regional manager for Scotland. Ms Cowley attended as note taker. The claimant attended accompanied by Mr Ayrton. We were provided with notes of the meeting (329). The notes were sent to the claimant on 6 March.[70]The claimant resigned in an email sent at 10.54 am on 14 March (345). She did so, before the grievance appeal decision had been made. In her email, the claimant said that her resignation was to be effective from 5 pm on 15 March. She referred to the length of time that the grievance process had taken. She said that “I have felt for a considerable length of time, but particularly this last year, that my employers were working to oust me from my job”. She said that she was unable to see a future working relationship and she believed that management had made it so that it was impossible for the claimant to work for the respondent. She referred to her mental health. She said there was no store for her to return to. She said that she would be following the resignation with a constructive dismissal case.[71]The outcome to the claimant’s grievance appeal was sent to the claimant on 25 March 2024. The decision was set out in a letter (354). The appeal was not upheld.[72]The claimant sought alternative employment before she resigned from her employment with the respondent. The claimant emphasised the need to pay the mortgage and the fact that she was only in receipt of SSP. We were provided with an email exchange with the claimant’s former employer (408), in which she sent them/him her CV on 21 November 2023 (the claimant said that they approached her all the time). We were provided with an email acknowledging the application from the claimant from one potential employer on 3 February 2024 (416). In explaining that application, the claimant said that she knew at that time that she would not be going back to work for the respondent. We were provided with an email from one potential employer in Preston of 5 March 2024 (414) which referred to a meeting with the claimant and said her application was not being progressed. We were also provided the offer letter sent to the claimant for the role of sales administrator which she in fact went on to take up after she left the respondent’s employment (413). That was dated 12 February 2024 and said employment was to commence on 11 March. The claimant was very clear in her evidence that she did not start that new employment before she left the respondent, but she started it in April 2024 (it was for a considerably lower salary).[73]During her cross examination, the claimant was asked about periods when she had been away from work and the equivalent periods when she was not paid a bonus. She agreed that any non-payment of bonus for such periods was not an unauthorised deduction from her wages (but contrasted her treatment with that of certain others). She agreed that what happened was in line with the terms of the bonus policy.[74]Peter Barnes suffered a bereavement whilst employed by the respondent and had a period of absence. He was paid his bonus for that period. The claimant could not tell us who his manager had been at the time.[75]In the formal grievance meeting, the claimant mentioned Becky Theakston, as the claimant believed she may have received a bonus whilst absent.[76]Mr Greenhow was a witness whose evidence we found to have been truthful. He was the claimant’s manager in 2022, prior to Mr Feeley. He reached the agreement with the claimant in early 2022 that she did not need to work Wednesdays so that it broke up the week, although the claimant continued to be paid for those days. He agreed that it was not intended to be an indefinite arrangement but was something that would be reviewed. He also gave evidence that a depot manager, Rob Crosby, had told him that he was paid full time wages when working part time due to stress. Mr Greenhow explained that was something which had been agreed ten years ago, at a time when things were different in the company and when a previous chief executive officer had been in post who treated staff well. He believed that Mr Feeley had been Mr Crosby’s area manager at the time the arrangement was agreed (something Mr Feeley denied). He accepted that the position appeared to be different in 2022, when he was shown Mr Crosby’s documented flexible working request and a letter from his then area manager which showed his salary being reduced pro rata when it was agreed (631).[77]Ms Cribben-Lea is a former depot manager who is currently bringing her own employment tribunal claim against the respondent. She said it was her experience that the respondent treated male colleagues more favourably than female colleagues in pay, promotions, and professional opportunities. The example which she gave was that when her and her husband had resigned to pursue a kitchen franchise, her husband was paid his bonus when he was technically not qualified to receive it, when she did not. In cross-examination, she acknowledged that their positions were different because her husband was on garden leave at the time, whereas she was on sick leave.[78]We found Mr Walker to be a genuine and credible witness. He had been the assistant manager to the claimant at Morecambe but is no longer employed by the respondent. Mr Walker’s evidence was that the claimant was always available to phone on the Wednesdays and Saturdays when she was not required to work, and she also came into work some of the time. It was his evidence that everyone at the Morecambe depot knew that the claimant car shared. He also said that he had been on conference calls with Mr Feeney which were aggressive and toxic, and he was glad that he did not work at the respondent anymore.[79]Mr Ayrton’s evidence was that he believed strongly that the reason why the decision had been made to move him as a depot manager in his final year of work, was a purely unjustified move by Mr Feeley because they had a conflict at work. He gave evidence that he had been off sick on four occasions from November 2015 to September 2019 and, in total, had nine months off for which he received full pay and bonus. He gave evidence about the change in culture at the respondent from a family business to a more corporate culture in more recent years. It was also his evidence that he offered to move to the Carnforth depot as a manager so that the claimant could remain in Morecambe. Mr Feeley accepted that he did make that offer (albeit there was a difference in evidence about to whom the offer had been made), but explained why he did not want to move a retiring manager into a new store.[80]We did not need Martin Beck to attend as the respondent chose not to ask any questions of him. We considered his evidence. He described the claimant as having been an able manager. In his evidence, he focussed upon events when Mr Gerrard had been the area manager. We also heard evidence from: Mr Pearson about his knowledge of the claimant’s disabilities and what he observed; Ms Stiles about contacting Ms Patel on the claimant’s behalf when she reminded her of the respondent’s duty to respond to the claimant in a timely manner; and Mrs Cullen, the claimant’s mother (which was largely based upon what she had been told by the claimant - her daughter).[81]We found the respondent’s witnesses to be credible and their evidence to have been genuinely given (and have addressed any specific issues arising from conflicts of evidence).[82]This Judgment does not seek to address every point about which we heard or about which the parties disagreed. It only includes the points which we considered relevant to the issues which we needed to consider in order to decide if the claims succeeded or failed. If we have not mentioned a particular point, it does not mean that we have overlooked it, but rather we have either not considered it relevant to the issues we needed to determine or we have not considered it necessary to refer to in these reasons.
The Law
[83]An unfair dismissal claim can be pursued only if the employee has been dismissed as defined by Section 95 of the Employment Rights Act 1996. Section 95(1)(c) provides that an employee is dismissed by her employer if: “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.”[84]The principles behind such a constructive dismissal were set out by the Court of Appeal in Western Excavating (ECC) Limited v Sharp [1978] ICR 221. The statutory language incorporates the law of contract, which means that the employee is entitled to treat herself as constructively dismissed only if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which showed that the employer no longer intended to be bound by one or more of the essential terms of the contract.[85]The term of the contract upon which the claimant relied in this case was the implied term of trust and confidence. In Malik and Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606 the House of Lords considered the scope of that implied term, and the Court approved a formulation which imposed an obligation 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 confidence and trust between employer and employee.”[86]The test is an objective one in which the subjective perception of the employee can be relevant but is not determinative.[87]Not every action by an employer which can properly give rise to complaint by an employee amounts to a breach of the duty of trust and confidence. The formulation approved in Malik recognises that the conduct must be likely to destroy or seriously damage the relationship of confidence and trust.[88]In her submissions, the respondent’s counsel referred to the case of United Bank v Akhtar [1989] IRLR 507. That was a case on mobility clauses, where moving the employee from Leeds to Birmingham with virtually no notice was held to be a breach of the terms implied into such a clause. In the respondent’s submissions it was said that the implied terms were that: an employee should be given reasonable notice of any move; and any discretion must be operated in such a way as to make the move feasible or not impossible. The claimant’s counsel did not contest that submission on the law.[89]The employee must resign in response to the repudiatory breach, but it is not necessary to prove that the breach was the sole cause. There may be concurrent causes operating on the mind of the employee, and the proper approach is to ask whether the employee has accepted the repudiation found by treating the contract of employment as at an end – it must be in response to the repudiation. There must be a causal connection between the repudiation and the resignation; if they are unconnected acts then the employee is not accepting the repudiatory breach.[90]Where there is a fundamental breach of contract by the employer, the employee may elect to accept the breach and bring the contract to an end or treat the contract as continuing requiring the employer to continue to perform it – that is affirmation. Where the employee affirms the contract, they lose the right to treat the employer’s conduct as having brought the contract to an end. Affirmation can be express or implied. Mere delay will not, in the absence of something amounting to affirmation, amount in and of itself to affirmation. However, the ongoing and dynamic nature of the employment relationship means that a prolonged or significant delay may give rise to an implied affirmation because of what occurred in that period. Acts which are consistent only with the contract continuing are likely to be implied affirmation. In submissions, the respondent’s counsel accepted the claimant’s counsel’s submission that where an employee remained in employment but pursued a grievance, that was not in and of itself affirmation.[91]In her submissions, the claimant’s counsel relied upon the decision of the Employment Appeal Tribunal in Brooks v Leisure Employment Services Limited [2023] EAT 137 as supporting the claimant’s case. Whilst considering different circumstances and focusing upon affirmation, there were some elements of the Tribunal’s decision in that case (upheld by the Employment Appeal Tribunal) which, broadly, assisted the claimant’s argument. In that case, the Tribunal emphasised that the withdrawal without notice or consultation of a valuable opportunity was a fundamental breach, and it was considered in the context of the loss of earnings.[92]In a constructive dismissal claim, an employer is still able to argue that the constructive dismissal was a fair dismissal. In this case, the respondent contended that any constructive dismissal (if found) was for a fair reason, being some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held (section 98(1)(b) of the Employment Rights Act 1996). In determining the fairness of any such constructive dismissal, we would need to consider whether the respondent had shown it was for the fair reason relied upon. If it was, we also would need to go on and consider whether it was fair applying section 98(4), which says that depends upon whether in the circumstances (including the size and administrative resources of the respondent) the employer acted reasonably or unreasonably in treating the given reason as sufficient reason for dismissing the employee, which must be determined in accordance with equity and the substantial merits of the case. In her submissions, the respondent’s counsel submitted that where there were legitimate business reasons for a fundamental breach of contract, then that could render a dismissal fair, relying upon Welch v Taxi Owners Association (Grangemouth) Ltd [2012] 6 WLUK 305.[93]Section 6 of the Equality Act 2010 provides that: “A person (P) has a disability if:(a) P has a physical or mental impairment, and(b) The impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”[94]Section 212 of the Equality Act 2010 provides that “substantial” means more than minor or trivial.[95]Schedule 1 Part 1 of the Equality Act 2010 includes further provisions regarding determination of disability. Paragraph 2 provides that: “The effect of an impairment is long-term if:(a) It has lasted for at least 12 months;(b) It is likely to last for at least 12 months; or(c) It is likely to last for the rest of the life of the person affected. If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur”[96]Schedule 1 Part 1 of the Equality Act 2010 also includes provisions which relate to the effect of medical treatment and to progressive conditions.[97]The guidance on matters to be taken into account in determining questions relating to the definition of disability, issued by the Secretary of State, confirms that “likely” should be interpreted as meaning that it could well happen. That guidance also addresses: substantial; the effects of behaviour; the meaning of adverse effects on the ability to carry out normal day-to-day activities; and day to day activities.[98]The onus is on the claimant to prove that the relevant condition was a disability at the relevant time.[99]The discrimination claims brought were for direct discrimination (only) and therefore relied upon section 13 of the Equality Act 2010 which provides that: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[100]Section 39(2) of the Equality Act 2010 provides that an employer must not discriminate against an employee. It sets out various ways in which discrimination can occur, and these include any other detriment. The characteristics protected by the provisions include sex and disability. The respondent’s counsel submitted that under section 39, the less favourable treatment must constitute a detriment. That is not strictly true, as the categories in section 39 are wider than just a detriment, they also include discrimination as to the terms of the worker’s employment, or affording access to opportunities for promotion, transfer or receiving any benefit. In her submissions, the respondent’s counsel cited the usual test for a detriment, which is that a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work (an unjustified sense of grievance is not enough).[101]Under Section 23(1) of the Equality Act 2010, when a comparison is made, there must be no material difference between the circumstances relating to each case. The requirement is that all relevant circumstances between the claimant and the comparator must be the same and not materially different, although it is not required that the situations have to be precisely the same.[102]Section 23(2) says: “The circumstances relating to a case include a person’s abilities if – on a comparison for the purposes of section 13, the protected characteristic is disability”[103]In her submissions, the respondent’s counsel said that under section 6(3)(a) of the Equality Act 2010, for disability, an employee can compare themselves either to a non-disabled person or a person with a different disability. She also referred to section 23(1) and submitted that if a person is treated a certain way because of something they cannot do owing to their disability, their claim will fail. She referred to Boesi v Asda Stores Ltd [2023] EAT 49 and the decision in that case, that a comparator in a long-term sickness case was someone who has also had the same length of absence from work but was not disabled.[104]Section 136 of the Equality Act 2010 sets out the manner in which the burden of proof operates in a discrimination case and provides as follows: “(2) If there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But sub-section (2) does not apply if A shows that A did not contravene the provision”[105]At the first stage, we must consider whether the claimant has proved facts on a balance of probabilities from which we could conclude, in the absence of an adequate explanation from the respondent, that the respondent committed an act of unlawful discrimination. This is sometimes known as the prima facie case. It is not enough for the claimant to show merely that she has been treated less favourably than her comparator and there was a difference of a protected characteristic between them. In general terms “something more” than that would be required before the respondent is required to provide a non-discriminatory explanation. At this stage we do not have to reach a definitive determination that such facts would lead us to the conclusion that there was an act of unlawful discrimination, the question is whether we could do so.[106]If the first stage has resulted in the prima facie case being made, there is also a second stage. There is a reversal of the burden of proof as it shifts to the respondent. We must uphold the claim unless the respondent proves that it did not commit (or is not to be treated as having committed) the alleged discriminatory act. To discharge the burden of proof, there must be cogent evidence that the treatment was in no sense whatsoever on the grounds of the protected characteristic.[107]In practice Tribunals normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator and then, second, whether the less favourable treatment was on the ground that the claimant had the protected characteristic. However, a Tribunal is not always required to do so, as sometimes these two issues are intertwined, particularly where the identity of the relevant comparator is a matter of dispute.[108]In most cases there is a need to consider the mental processes, whether conscious or unconscious, which led the alleged discriminator to do the act. Determining this can sometimes not be an easy enquiry, but a Tribunal must draw appropriate inferences from the conduct of the alleged discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions). The subject of the enquiry is the ground of, or the reason for, the alleged discriminator’s action, not his motive.[109]We need to be mindful of the fact that direct evidence of discrimination is rare, and that Tribunals frequently have to infer discrimination from all the material facts.[110]The protected characteristic does not have to be the only reason for the conduct, provided that it is an effective cause or a significant influence for the treatment.[111]The explanation for the less favourable treatment does not have to be a reasonable one. Unfair or unreasonable treatment by an employer does not of itself establish discriminatory treatment. It cannot be inferred from the fact that one employee has been treated unreasonably, that an employee of a different sex or without that disability would have been treated reasonably.[112]The respondent’s counsel relied upon Ayodele v Citylink [2017] EWCA Civ 1913, Shamoon v Chief Constable of the RUC [2003] IRLR 285 and Nagrarajan v London Regional Transport [1999] IRLR 572 when detailing the burden proof and the steps to be undertaken. The way in which the burden of proof should be considered has been explained in many authorities, also including: Barton v Investec Henderson Crosthwaite Securities Limited [2003] IRLR 332;; Hewage v Grampian Health Board [2012] ICR 1054; Igen Limited v Wong [2005] ICR 931; Madarassy v Nomura International PLC [2007] ICR 867; and Royal Mail v Efobi [2021] UKSC 33.[113]It was submitted on the respondent’s behalf that the decision-maker had to have actual (not imputed) knowledge of the protected characteristic for direct discrimination, citing Gallup v Newport City Council UKEAT/0118/15. That position does of course differ from what would be required for other types of disability discrimination, where imputed knowledge or the knowledge of the respondent (but not the specific decision-maker) would suffice.[114]Section 123 of the Equality Act 2010 provides that proceedings must be brought within the period of three months starting with the date of the act to which the complaint relates (and subject to the extension for ACAS Early Conciliation), or such other period as the Tribunal thinks just and equitable. Conduct extending over a period is to be treated as done at the end of the period. A failure to do something is to be treated as occurring when the person in question decided on it.[115]The key date is when the act of discrimination occurred or, if a continuing act, when the continuing act ceased. A question is whether a respondent’s decision can be categorised as a one-off act of discrimination or a continuing scheme. Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 makes it clear that the focus of inquiry must be not on whether there is something which can be characterised as a policy, rule, scheme, regime or practice, but rather on whether there was an ongoing situation or continuing state of affairs for which the respondent was responsible in which the claimant was treated less favourably.[116]If out of time, we need to decide whether it is just and equitable to extend time. Section 123(1)(b) of the Equality Act 2010 states that proceedings may be brought in, “such other period as the Employment Tribunal thinks just and equitable”. The most important part of the exercise of the just and equitable discretion is to balance the respective prejudice to the parties. The factors which are usually considered are contained in section 33 of the Limitation Act 1980 as explained in the case of British Coal Corporation v Keeble [1997] IRLR 336. Those factors are: 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 relevant respondent has cooperated with any request for information; the promptness with which the claimant acted once she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once she knew of the possibility of taking action. Subsequent case law has said that those are factors which illuminate the task of reaching a decision, but their relevance depends upon the facts of the particular case, and it is wrong to put a gloss on the words of the Equality Act to interpret it as containing such a list or to rigidly adhere to it as a checklist. The Court of Appeal in Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23 emphasised that the best approach for a Tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which are considered relevant to whether it is just and equitable to extend time and that factors which are almost always relevant to consider when exercising any discretion whether to extend time are: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).[117]Part of the claim was for unauthorised deductions from wages under section 23 of the Employment Rights Act 1996, relying upon the right under section 13 of the Employment Rights Act 1996 which provides that: “An employer shall not make a deduction from the wages of a worker employed by him unless:(a) The action is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract; or(b) The worker has previously signified in writing his agreement or consent to the making of the deduction.”[118]Under section 27 of the Employment Rights Act 1996 “wages” includes any bonus or commission.[119]In practice, we therefore needed to determine: whether the claimant was contractually due amounts which were not paid to her; and, if so, whether any deduction made from the payment of any wages, was otherwise authorised in one of the ways described and/or was reimbursement of an overpayment of wages. Conclusions – applying the Law to the Facts[120]We did not determine the issues in the order set out in the list of issues. We did not start by considering issue one in the list of issues, time limits. We left that issue to be considered after we had considered the other issues. We also decided that it was more logical to consider the discrimination issues first before considering the constructive dismissal claim, as our decisions on the discrimination allegations were likely to be of importance when determining whether the claimant had been constructively dismissed. Disability[121]We started with issue four. That was whether the claimant had a disability as defined by section 6 of the Equality Act at the relevant time. The dates for the relevant time in the list were not correct, they were instead agreed to be November 2023 to January 2024. It was not in dispute that the claimant did have a disability at the relevant time. The conditions/impairments relied upon, which it was accepted were disabilities at the relevant time were: fibromyalgia; irritable bowel syndrome; back problems; gall bladder problems; liver fibrosis, symptoms of menopause; and a mental health impairment. The claimant chose not to pursue any reliance upon autoimmune issues as a separate disability. That meant that the only two conditions which we needed to consider and determine were: coeliac disease; and psoriatic arthritis.[122]In the facts section of the Judgment, we have referred to the limited evidence available to us about psoriatic arthritis. It is for a claimant to prove that she had the disability relied upon at the relevant time. In this case, for that specific impairment, we did not find that the claimant had proved that she had a disability at the relevant time as a result. The limited evidence available was set out in Dr Jalil’s 28 May 2024 report (460) and that evidenced only that the claimant might have some form of psoriatic arthritis, there was the impression of possible psoriatic arthritis, and she was under the umbrella of possible psoriatic arthritis. The report did not provide a clear diagnosis of psoriatic arthritis. In any event, there was no evidence presented to us which showed the impact of psoriatic arthritis on the claimant’s ability to undertake day to day activities. It is for the claimant to prove that she had the disability relied upon. We found that, for that impairment, she did not prove it.[123]There was also a notable limit to the evidence available about coeliac disease. However, for that impairment, we accepted that the claimant had a disability at the relevant time as a result. Within Dr Jalil’s report there was a statement that there had been a positive test for coeliac disease. Where coeliac disease has been identified, it is clear that the dietary restrictions which necessarily follow, would mean that it had/has a substantial adverse effect on day-to-day activities. Whilst the evidence available to us of that impact on the claimant was somewhat lacking, we nonetheless accepted that the claimant had that disability at the relevant time.[124]As we have explained in the facts part of this Judgment, the claimant suffers from complex medical problems with a complex medical history and, in practice for the issues we were asked to determine, the precise definitions of the disabilities relied upon or found, were not central to the issues to be determined. We did note that (when we asked) the claimant’s counsel agreed that it was in practice not determinative whether the claimant had seven disabilities or nine, but nonetheless we have reached decisions and recorded our findings on the two disabilities in dispute, as they were issues in the list which we were asked to determine. Sex discrimination[125]Issue five was direct sex discrimination. Issues 5.1 to 5.4 set out the questions which we needed to determine. There were in practice two complaints as set out in the list of issues as 5.1.1 and 5.1.2. We considered the issues as they applied to each of those complaints in turn.[126]Issue 5.1.1 was the change to the claimant’s contract agreed at the meeting on 6 February 2023, so that she would no longer work Wednesdays or Saturdays, and she would have her salary (but not her bonus) reduced to reflect the hours she was required to work. That replaced the previous arrangement which had been in place, where the claimant was not required to work every Wednesday but was paid for all Wednesdays whether she worked or not.[127]In the facts section of this Judgment, we have recorded what we found in the dispute about why the meeting was called. However, irrespective of the reason for the meeting being arranged, there was in practice no dispute that the claimant agreed not to work Wednesdays and Saturdays. She accepted that her pay would be reduced as a result (even if she was not happy about that). As the claimant agreed to that change to her contractual hours, we could not see any genuine issue whatsoever with her not being paid for the days when she was not required to work. Prior to that meeting, what had been in place, as agreed by Mr Greenhow, was the claimant being treated more favourably by being paid for hours she was not working. The list of issues alleged that the claimant was given no choice, but that was not what we found to be the case. The claimant had a choice, and she agreed to the change in her hours and the reduction in her pay. We understood that the claimant may have found it difficult to forego pay, but nonetheless it was a choice and a decision that she made (driven by her health). The clear evidence of both attendees from whom we heard evidence, was that the outcome of the meeting (as recorded in the subsequent letter) was an agreement.[128]We needed to decide whether that was less favourable treatment. The respondent’s counsel contended that it was not, because it was not a detriment. Section 39 of the Equality Act 2010 does not apply only to a detriment, as it also applies to the terms of employment. It was clear that this was a change to the terms of the claimant’s employment. In any event, we found that, looked at from the claimant’s point of view (but considered objectively), losing pay was a detriment, particularly where the claimant had been paid for some hours not worked for a period of time.[129]However considering the full issue set out in the list of issues as 5.2 and applying the burden of proof provisions as we have explained them in the section on the law above, we found that there was nothing which provided the “something more” required to reverse the burden of proof and show that the change/reduction was because of sex or that a hypothetical man with the same health restrictions would have been treated more favourably. Indeed, we found that a man, in the same circumstances, would have been treated in exactly the same way. We also noted that the claimant’s full bonus was maintained, and it was not reduced pro rata, as her salary was.[130]For this allegation there was no genuine comparator in materially the same circumstances relied upon. However, in considering whether the burden of proof had shifted or whether a hypothetical male comparator in the same circumstances would have been treated differently, we noted the evidence we heard about others. We noted that Mr Crosby had formally changed his hours and had been paid a reduced salary pro rata from 2022 (that is before the change for the claimant). The evidence we heard suggested that he may have had an arrangement in place prior to the formal change which differed, but nonetheless it was formalised for him in the same way and with a comparable pro rata reduction in salary, before the claimant’s was also formalised and reduced. We also found that Mr Feeley had not been Mr Crosby’s manager at the time of any non-formal arrangement, providing an important reason for a difference in treatment. As we have highlighted, Mr Crosby was not pleaded as comparator, but in any event, we did not find that the evidence we heard about his situation, assisted our determination on a hypothetical male comparator and/or shifted the burden of proof in the claimant’s complaint.[131]Issue 5.1.2 alleged that, from March 2023, the claimant did not receive full sick pay including bonus whilst off sick. In practice this was not an allegation about something that ran from March 2023. The situation in dispute occurred during two periods: the absence from the claimant’s operation in August 2023 (and shortly afterwards); and her longer-term absence after the meeting on 9 November 2023. The claimant was paid sick pay in accordance with the respondent’s policy and was paid only statutory sick pay for her absence from November 2023 (or at least some of it). Where she was absent for a week or more of any bonus reference period, the claimant was not paid bonus for that reference period. That entirely accorded with the respondent’s policy. We heard that the HR/payroll systems operated that automatically. However, there was no dispute that an Area Manager had a discretion to pay bonus even where the individual was not entitled, and that discretion was exercised on occasion for others.[132]The pleaded comparator, upon whom the claimant relied for this allegation, was Mr Ayrton and we have addressed his circumstances below. However, we also heard evidence about others who might have, or were contended to, inform our decision even though they were not actual comparators relied upon. We did not find that those other circumstances assisted us in reaching our decision. The circumstances of Jo-Anne Cribbin-Lea’s husband differed significantly to those of the claimant, as he was on garden leave at the time that bonus was paid (and the considerations for such a payment would be materially different). Mr Jones evidenced two people with terminal cancer who were paid their bonus when absent, and we accepted that those situations were materially different and did not genuinely inform our decision. We also did not find the fact that Mr Barnes was paid bonus when absent following a bereavement, to be sufficiently comparable to assist and the circumstances were clearly materially different.[133]The pleaded comparator was Paul Ayrton. He had been sick on four occasions between November 2015 and September 2019, and he received full pay and bonus for those periods of absence. We found that was not a decision made by Mr Feeley personally. We also noted that it was a somewhat historic arrangement, and we took into consideration what Mr Ayrton said in evidence about the change in culture at the respondent.[134]We did find that between the claimant and Mr Ayrton there was a difference in sex and there was a difference in treatment, as he was paid full salary and bonus when absent and she was not. However, as part of issue 5.3 and for the reasons we have set out when explaining the burden of proof in the section on the law, we had to ask ourselves whether there was the “something more” required to shift the burden of proof? As we have said, simply a difference in treatment and a difference of sex, is not enough to shift the burden of proof. There must be something capable of showing that the difference was because of sex; the something more. We found that there was nothing in this case which provided that “something more” and demonstrated that sex could have been the reason for the difference. We noted the explanations provided by the respondent for the difference, including that it was a specific manager’s own decision on each occasion, and the change of culture over time. However, as we did not find that there was the prima facie case required to shift the burden of proof, we did not need to decide (issue 5.4) whether it had been shown by the respondent that the decision was in no sense whatsoever due to sex, because the something more was not shown.[135]We also had to consider issue 5.1.2 as it applied to a hypothetical male comparator. The same issues arose as we have explained when addressing the actual comparator, Mr Ayrton. The claimant did not show the something more required to shift the burden of proof, whether to show that a hypothetical male comparator would have been treated differently or whether any difference would have been because of sex. We have already addressed the evidence we heard about others who were not the actual comparator relied upon and have explained that they did not assist us or support the claimant in her contention about how a hypothetical male comparator (who had also been absent for the same time), would have been treated. Disability discrimination[136]We next considered issue six, which was the claim for direct disability discrimination.[137]Relevant to direct disability discrimination was Mr Feeley’s knowledge of the claimant’s disabilities. As he was the alleged discriminator for both allegation 6.1.1 and 6.1.2, it was his personal knowledge that was relevant as someone cannot treat some less favourably because of their disability unless they are aware of the disability (albeit not necessarily the technical label for the impairment). By November 2023, Mr Feeley knew about the claimant’s absences and the gall bladder operation. As we have recorded, the respondent’s counsel in submissions accepted that he knew about the claimant’s gall bladder problems and her liver fibrosis (both of which were accepted to have been disabilities at the relevant time). Mr Feeley knew that the claimant had various medical issues, but did not know about all the disabilities or the details of any of them. There was nothing in this case which indicated it was important for us to determine precisely which of the disabilities relied upon he was aware of at the time. It was Mr Feeley’s own evidence that he did not consider the claimant disabled, but that of course was irrelevant (when considering knowledge) where it was accepted that he knew about gall bladder problems and liver issues, and they were two of the disabilities relied upon (and accepted). We have already addressed what we found about the list of disabilities shown to Mr Feeley in the February meeting, but we have also found that Mr Feeley did not appear to have taken in the significance of what he was shown or the disabilities which were recorded.[138]Allegation6.1.1 was that, in November 2023, Mr Feeley told the claimant she was being moved from Morecambe to a lesser league store, Lancaster, which would result in a pay cut, or to a new store which was not yet built, Carnforth. Allegation 6.2.2 was that, in January 2024, Mr Feeley transferred the claimant to Carnforth and placed a colleague in her job in Morecambe. We considered allegations 6.1.1 and6.1.2 together, as they were both allegations about the depot for which the claimant was reasonable being changed and her being moved. We did not find that what was recorded in the allegation made at issue 6.1.1 about a pay cut was right, although that was clearly the claimant’s belief as she left the meeting early before she could be told that her pay would remain unchanged. The claimant would not have had any reduction in her salary, but her bonus may have reduced over time in the future (albeit we don’t know whether in fact it would have done, as what was said was that it would be reviewed).[139]Did the claimant see her being moved out of the Morecambe depot as a detriment (issue 6.2)? We found that the answer was clearly yes, she did. Viewed objectively, a reasonable worker would also have found being moved to have been a detriment. In any event, being moved was a change to a term of the claimant’s employment, so section 39 applied and was satisfied.[140]In her allegations of direct disability discrimination, the claimant relied upon a hypothetical comparator only. As we are able to do, we focussed upon the reason why the respondent moved the claimant, rather than following through in order all of the steps to be undertaken when applying the burden of proof. We accepted Mr Feeley’s evidence about why it was he made the decision to move the claimant. That was a business decision. It was not a decision made because of the claimant’s disability or disabilities. We found that the decision to transfer the claimant was in no sense whatsoever because of her disability or disabilities. We would add that we also did not find the “something more” required to shift the burden of proof, which showed that the transfer decision was because of disability, but we focussed on what we found were the reasons for the decision, which were the reasons given by Mr Feeley in evidence.[141]We accepted the evidence of all three of the respondent’s witnesses, that such moves were common practice in the company. We noted the number of managers moved at the time. We also noted the claimant’s counsel’s submission that the claimant may have been the person most adversely affected (at least from her perspective), albeit in fact Mr Ayrton’s evidence was that he also did not wish to move (and he notably asserted a reason other than disability for his treatment). Based upon the evidence that we heard, it was clear that the claimant did not wish to move to Lancaster and therefore Carnforth was the location identified for her transfer after she was first given the option. It was not for us to determine the merit of the business reasons for the reshuffle, but we found that the reasons were those evidenced by Mr Feeley.[142]We did consider what was said by Mr Feeley about the claimant’s health in the context of the move. We accepted the distinction that Mr Feeley drew in evidence, between the reason for the decision (which was not about health) and the potential perceived benefit of the move (in the context of which he referred to her health). We accepted that what he said about the potential merit of the move to a new store for the claimant’s health, was a perceived by-product of the move, but not the reason for it. Carnforth was a new store which would (or at least could) have been less pressured than Morecambe.[143]As we have said, we found that the reason for the move was in no sense whatsoever due to disability. We noted that the claim was one for direct disability discrimination. Therefore, the extent to which being moved was more problematic for the claimant because of her health than it otherwise would have been, did not assist the claimant with her claim. The question was why Mr Feeley made the decision. There was no evidence that Mr Feeley made the decision because of any one of the claimant’s disabilities or an amalgam of them. Had he made the decision because of the claimant’s absences or health record (which is not what we found), that would still have not been direct disability discrimination (as alleged). Constructive dismissal[144]We next addressed issue two in the list of issues, which set out the issues in the claimant’s constructive dismissal claim. The claimant relied upon six things as being, individually or collectively, a breach of the duty of trust and confidence (they were set out as issues 2.1.1.1-2.1.1.6)[145]Issues 2.1.1.2 and 2.1.1.3 reflected the issues we have already addressed when determining the direct disability discrimination claim. In 2.1.1.2 the allegation was that, on or around 2 January 2024, the respondent replaced the claimant as depot manager in Morecambe with Mr Ayrton. In issue 2.1.1.3 it was alleged that, in January 2024, the claimant was transferred to manage the Lancaster store (which was said to be one of the bottom performing stores) and the Carnforth store (which had yet to be built).[146]The claimant was not transferred to manage the Lancaster store. She was offered the option of either Lancaster or Carnforth. She clearly declined Lancaster. In her submissions, the claimant’s counsel was critical of the way in which the respondent decided to transfer the claimant to Carnforth rather than Lancaster (after she was first given the choice). We found that the claimant was not moved to Lancaster, after she expressed her view (in quite a forthright way) that she did not wish to move to Lancaster. There was nothing inappropriate or untoward about the respondent deciding that the claimant should move to the new store in Carnforth after the claimant had done so.[147]The respondent had a contractual power to move depot managers. It operated that power with reasonable notice. It did so by moving the claimant to another store which was not an unreasonable distance away. We found that decision was not a breach of contract and was not a breach of the duty of trust and confidence.[148]We have already addressed many of the issues when determining the disability discrimination claim. We found that Mr Feeney did not know about any restrictions that there might have been on the claimant’s ability to drive, and he would not have been expected to have done so purely from her having car shared. The stores offered to the claimant were only in Lancaster or Carnforth, being less than seven miles away (based upon our knowledge). We understood the claimant’s obvious preference to stay at a depot half a mile from her home where she had worked for over seven years, but we did not find the requirement for her to move was a breach of the duty of trust and confidence. The claimant’s representative placed considerable emphasis upon the claimant’s disabilities as contributing to the reason why this was contended to be a breach of the duty of trust and confidence, but we did not find that the claimant’s health at the time meant that the decision to move the claimant was a breach of the duty of trust and confidence. We noted that the claimant did not express the health difficulties of transferring to Mr Feeley at the time, nor did she explain them in her grievance when it was raised. We did not find that those health issues in and of themselves (and based on what was known at the time) rendered the move a breach of the duty of trust and confidence (where it otherwise would not have been).[149]Issues 2.1.1.4 and 2.1.1.5 were the allegations that the respondent failed to send the claimant an updated contract in January 2024 to reflect the change to the claimant’s work address (she only received the update contract in February) and the allegation that Mr Feeley failed to inform the claimant which store she was going to be working at on her return from sick leave, despite her requesting the information. Those allegations arose because the claimant was only sent the contract with a revised location on 2 February 2024 (298) backdated to 1 January. The claimant knew that she was being transferred to either Lancaster or Carnforth from the discussion on 9 November (which she left). She made clear that she did not wish to go to Lancaster. She was absent on ill health grounds at the time of the proposed move. It was, of course, entirely reasonable of the claimant to question where she was now working and to where she would return. On 16 January Ms Patel confirmed that the claimant would be moving to Carnforth when it opened, but there needed to be a discussion about what the role looked like in the interim period. The proposal of what the claimant would do was confirmed in the letter of 2 February, as being manager holiday cover within a reasonable travelling distance for the claimant, and project work. The claimant chose not to attend the proposed meeting on 22 January when this was to be discussed, due to her error that what was proposed was a partvideo hearing (when the word hybrid was used), rather than it being a hybrid of a return to work and facilitated meeting as proposed (258).[150]We did not find that what occurred was a breach of the duty of trust of confidence. We did not find that the respondent acted in a way which, viewed objectively, was calculated or likely to destroy or seriously damage the relationship of trust and confidence.[151]Issues 2.1.1.1 and 2.1.1.6 arose from the alleged failure to adequately communicate during the grievance process and the delay in the grievance process.[152]We found that the respondent adequately communicated with the claimant about the grievance and the process followed. Indeed, Ms Patel appeared to have kept the claimant fully informed and to have responded to her timeously. She responded quickly to many of the emails the claimant sent. The claimant’s expectations appeared to have been somewhat high and her expectations of speed of response were somewhat unreasonable. The communication was certainly adequate.[153]We noted that the overarching total period of time, was that the grievance took from 16 November to be addressed, and the process had not concluded when the claimant resigned on 13 March. The Tribunal has considered that period based upon our industrial experience. We did not consider it to be excessive, unreasonable, or a failure to address matters promptly. What we considered was important in this case, was to consider each of the steps taken and the reasons for the time for each step. We noted that the period taken to address the informal grievance included the Christmas period, which in practice always delays matters. The informal grievance meeting could ideally have been arranged more quickly, but we accepted Mr Jones’ evidence about the reasons for that delay. We found that the formal grievance was determined quickly in the light of the claimant’s request to change the manager (it was raised on 11 January, heard on 29 January, and an outcome provided on 9 February). The appeal was also addressed relatively promptly (raised on 11 February, heard on 29 February, with an outcome on 25 March, albeit only the period to 14 March can be relevant to the constructive dismissal claim). We did not find that those periods of time were a breach of the duty of trust and confidence.[154]For the reasons we have given, we did not find any of the matters relied upon to have been a breach of the duty of trust and confidence when considered individually. We also considered them collectively, and did not find that what occurred was a breach.[155]Had we needed to consider issue 2.1.4, we would not have found that the issues around communication or delay in the grievance process (issues 2.1.1.1 and 2.1.1.6), or the issues about formalising where the claimant would be transferred to (issues 2.1.1.4 or 2.1.1.5), were the reasons for the claimant’s resignation. In practice, we found that the reason for the claimant’s resignation was the transfer between depots. It was not the subsequent letters, the grievance process, or the time taken for it. We noted the evidence that we heard about the claimant’s search for new employment. She accepted her new employment by 8 February (411). What occurred thereafter was not the reason for the claimant leaving her employment with the respondent. In fact, it would appear that the claimant had decided that she was going to leave earlier than that date, as an individual does not only decide to leave at the point when they accept alternative employment. The fact that the claimant entered into ACAS early conciliation on 31 January, also indicated that the time taken for the grievance process (or the communication during it), was not the reason for her resignation.[156]Had we needed to do so, we would not have found that the claimant affirmed her contract (issue 2.1.5), where she left the meeting at which she was informed of the change, was absent on ill health grounds, and raised a grievance very soon afterwards. We would not have found that any dismissal (had we found that one occurred) would have been fair in all the circumstances (issues 2.2-2.4), when considering the reason relied upon, which was the need to refresh the area (applying section 98(4)). Other issues[157]Whilst we had said that we would determine issues of/arising from Polkey, contributory fault and the application of the ACAS code of practice on disciplinary and grievance procedures at the same time as determining the liability issues, in fact we heard no submissions from either party addressing those issues. In the light of the other decisions which we have made, we did not need to make findings on any Polkey arguments and in practice were unable to do so (that being an argument about whether the claimant’s employment could have ended fairly in any event). We did not find that there was any contributory fault because the claimant walked out of the meeting on 9 November as the respondent contended, nor would we have found that either party unreasonably failed to comply with the ACAS code. Unauthorised deduction from wages[158]The unauthorised deduction from wages claim was in practice without merit. In fairness, the claimant when cross-examined accepted that no unauthorised deductions had occurred. The entitlement to bonus whilst off sick was addressed by the policy and the claimant was not contractually entitled to such bonus payments on the occasions when they were not made. The fact that a discretion could have been exercised in the claimant’s favour, did not make the non-payment an unauthorised deduction. The claimant was paid the wages to which she was entitled for the hours she worked. Even if the claimant felt pressured to agree in February 2023 to a variation to her contract or was unhappy about having done so, she still agreed the variation herself and therefore the variation was contractually agreed. The respondent was not obliged to pay the claimant for the hours she was not required to work following the agreement that she would not work Wednesdays or Saturdays; any non-payment was not unauthorised (even where the claimant did in fact choose to work on any of those days). Time/jurisdiction[159]We finally considered issue 1. That was the time limit and jurisdiction issue. The claim was not entered within the primary time limit for the decision made in February 2023 (issue 5.1.1) and therefore, for that claim of direct sex discrimination the claim was entered out of time (issue1.1.1 ). As we haven’t found for the claimant on any of her allegations, that could not be part of conduct extending over a period with later in-time allegations, but, in any event, as it was a one off stand-alone decision we would not have found it to have been part of a series of conduct with other allegations (issues1.1.2 and1.1.3 ). Applying the just and equitable test (issue1.1.4 ) and the law as we have explained it, we found that the key factors were: the claim was entered approximately one year after the event; there was limited explanation of the late claim, albeit in submissions the claimant’s counsel contended that the claimant only discovered the difference in treatment in November 2023; the prejudice to the claimant would be significant if her claim could not be determined; and there was no forensic prejudice for the respondent in the late claim (particularly where the claim has been successfully defended on its facts). Applying the balance of prejudice (and particularly taking into account the absence of forensic prejudice for the respondent), we did find it to be just and equitable to extend time and therefore found that we did have jurisdiction to consider that complaint.[160]For the other discrimination claims and the unauthorised deduction from wages claims, it appeared that the claims had been brought in time based upon the date of the last alleged act in a series, or the date of the last wages due and the sums not paid. In any event, as we have not found for the claimant in any of her allegations, the question of time/jurisdiction made no material difference to the outcome. Summar[161]For the reasons explained above, we did not find for the claimant in any of her allegations. Employment Judge Phil Allen 7 October 2025