Ms F FarahClaimantSpire Healthcare Limited RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge ShotterIn person for claimantDate 1 September 2025
JUDGMENT
[1]The claimant was not disabled in accordance with section 6 of the Equality Act 2010 with an impairment of significant weaknesses in auditory working memory” in the relevant period 17 November 2020 to 24 November 2020.[2]The Tribunal does not have the jurisdiction to consider the complaints of disability discrimination, which are dismissed.
REASONS
Introduction
[1]This has been a remote preliminary hearing by video which has been consented to by the parties. The form of remote hearing was CVP video fully remote. A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing. The documents that the Tribunal was referred to are in a bundle of 156 pages, the contents of which I have recorded where relevant below, in addition to the claimant’s unsigned and dated impact statement, the written statement of Andrea Boylan, a nurse employed by the respondent, and written submissions received from both parties, for which I am grateful. Apart from the two medical reports the claimant did not provide any other medical records or evidence.. Preliminary hearing[2]Today’s preliminary hearing is to consider whether the claimant was disabled for the purpose of section 6 on the Equality Act 2010 (“the EqA”) in the relevant period 17 November to 24 November 2020.[3]The hearing was adjourned from 17 March 2022 as an adjustment for the claimant. Issues[4]We discussed and agreed the issues to be decided at this preliminary hearing as follows; a. Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about 17 November 2020 to 24 November 2020. The Tribunal will decide:(i) Did she have a physical or mental impairment: auditory processing disorder ?(ii) Did it have a substantial adverse effect on her ability to carry out day-to-day activities?(iii) If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?(iv) If so. would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?(v) Were the effects of the impairment long-term? The Tribunal will decide: (a) did they last at least 12 months, or were they likely to last at least 12 months? (b) if not, were they likely to recur?[5]The key issue in this case is did the claimant’s impartment have a substantial adverse effect on her ability to carry out normal day-to-day activities, as agreed. Claimant’s disability issue[6]In order for the complaints of disability discrimination to succeed, the claimant will need to establish that she had a disability within the meaning of section 6 of EqA, and this is the issue before me today.[7]Oral evidence has been heard on oath from the claimant who confirmed the contents of her impact statement was true. On behalf of the respondent I heard from Andrea Bolan who gave credible evidence supported by my experience of the claimant at this preliminary hearing. On balance, I did not find the claimant a credible witness for the reasons stated below, concluding she had exaggerated the effects of her condition in order to continue with this litigation which stems from an unsuccessful job application with the respondent following an interview with Andrea Bolan.[8]The claimant’s case is that she was disabled by Auditory Processing Disorder, and this had been the position throughout her life. The claimant has not been diagnosed with Auditory Working Memory and she has self-diagnosed this condition. The claimant has been diagnosed with “significant weaknesses in auditory working memory” and she has produced two medical reports to this effect.[9]Whilst studying for her nursing degree the claimant was diagnosed by a chartered psychologist on the 3 June 2016 (“the 14 June 2016 report”) as having “specific learning difficulties arising from weakness in her auditory working memory…particularly in the context of literary skills in a higher education environment.” Recommendations were made to support the claimant in her university studies as the claimant was struggling with organising her studies and complying with its demands. The claimant argues today that reading for a degree and sitting exams were day-to-day activities. I disagree, preferring Ms Kight’s submissions on this point. The 14 June 2016 report was aimed at ensuring the claimant was given additional support from the university, for example, extra time in exams. I have explored this report in greater depth below. The medical evidence 14 June 2019 psychologist Report (“the 14 June 2019 report”) 3 The 14 June 2016 report covered a wide range of tests from attainments in literacy, spelling and writing, vocabulary, and cognitive processing. The psychologist found that the claimant whilst “English is her third language, after Somalian and Danish…her difficulties do not appear to be related to her stage in the acquisition of English skills…Fatima has strong phonological awareness, word reading and spelling skills. She does however, struggle to understand information which she can read accurately and needs to re-read information to process meaning…she has some weaknesses in perceptual reasoning and significant weaknesses in auditory working memory… [that] continue to impact on her ability to process written information” [my emphasis]. Recommendations included not requiring the claimant to read out aloud in groups, guidance and support when preparing written work and note taking, and extra time. 4 In written closing submissions the claimant refers to the 14 June 2016 report which she interpreted confirmed she was “having difficulties organising my thoughts: having difficulties understanding what is required in examination questions; going off on a tangent when expressing my ideas; often losing concentration in both social and academic settings; trouble following conversation; writing things down in order to remember them; experiencing difficulties understanding written information despite being able to read the words and having a below average score in perceptual reasoning”. The 14 June 2016 report did not reflect the description given to it by the claimant in its entirety, and if I am incorrect in my interpretation of the report it is apparent the difficulties described by the claimant may have an adverse effect, for example, losing concentration and having difficulties organising her thoughts, but it was not substantial and her ability to take part in conversations, for example, with patients including translating on their behalf, appeared largely unaffected by the weaknesses set out in the 14 June 2016 report. 5 The claimant maintains today that her impairment has caused her difficulties in the following areas: understanding sounds and spoken words; comprehending written information on its first reading, and writing information down quickly. The claimant’s application for the band 5 registered nurse position 6 In the claimant’s application to the respondent for the band 5 registered general nurse role in 2019, reference was made by her to the following personal attributes in direct contrast to the contents of her impact statement and the oral evidence given at this hearing; “…One speciality that stood out to me was working on day case and short stay wards. This was because of the interactions I was able to have with patients and being their advocate on their journey from pre-assessment to post-operative care...My most recent post was as an agency nurse…I gained the qualities to be adaptable to the demands of each individual department. One of these is being able to work effectively in a team. I have had to work with multiple teams…I adapt to situations very quickly whilst maintaining a warm, yet professional manner…I am enthusiastic and a compassionate person who finds it easy to converse and communicate with a range of people. I speak fluent English, Danish and Somali; these interpersonal skills allow me to be a part of the patient’s journey as their advocate, enhancing experience. A particular scenario that highlights this was when, I had to use my language skills in practice; during a patient history taking…I made sure my colleagues were well informed throughout the conversation and were able to participate…One thing that has strengthened the standards I should be working towards is having students work alongside me…teaching new starters and junior staff the same…”[my emphasis]. 7 Even allowing for exaggeration in job applications it is apparent the claimant’s condition did not prevent her from organising her thoughts; she was able to express ideas; concentration in both social and work setting and follow conversations in direct contrast to the picture painted by the claimant in this application. Medical report 10 June 2021 (“the 10 June 2021 report”). 8 A second report was provided by a different chartered psychologist following an assessment of the claimant on the 20 and 21 April 2021 referred to as a “Top up” report following the claimant experiencing challenges in the workplace. The assessment was described as follows; “Fatima requested a further “top up” assessment after being previously identified with specific learning difficulties while studying at university…while the current assessment was not a full diagnosis, it served to identify that the pattern of difficulties experienced…in terms of literacy and working memory are consistent with those identified in her earlier assessment. It can be concluded that she still experiences a specific learning difficulty…is likely to benefit from support strategies and reasonable adjustments within the working environment and with any further studies she may embark on.” 9 The claimant was assessed at having “well-developed language skills [and]…non-verbal skills and her ability to process information quickly and accurately. Fatima presents some relative weakness with regards to working memory…Fatima’s reading fluency lies within the average range but she reads a little slowly and does have considerable difficulties with retention of information in order to apply it in the opportunity to re-read where necessary” [my emphasis].[10]The learning difficulties with regard to working memory “appear to have a negative impact on some of her literary attainments, namely the retention of information in order to apply it in the short term, either from reading or from listening to verbal information and being able to write it down efficiently…working memory is susceptible to the impact of mood and emotion and these factors may exacerbate her difficulties.”[11]A number of recommendations were made including test to speech software likely “to make reading less time consuming and may also help with the retention of information, extra time to re-read information and complete her written work without being pressurized and a recording device at training events or meetings as the claimant may have difficulties recording information in terms of her speed of handwriting.” With reference to working memory, it “contributes” to the claimant “experiencing some difficulties in terms of speed and accuracy” when producing written documents. She may find it “hard to remember instructions or processes” and “instructions or tasks…given verbally…could be written down in a staged process in order to aid her memory.”[12]I do not agree with Ms Kight that it was clear from the reports that the claimant’s ability to read, write or spell are not affected by her condition given the suggestion that the impairment could contribute to the speed in which the claimant performs such tasks. However, there was no satisfactory evidence before me that the claimant’s attention and concentration were impaired and in direct contrast to the picture presented by the claimant in this application, the chartered psychologist found “Fatima demonstrated good attention and concentration throughout the assessment session.”[13]With reference to working memory which “refers to our ability to remember and work with information for a short time…for example, remembering the initial part of a sentence while reading the latter part, or remember a sequence of information…her performance was below that expected of someone of her age group…and also lower for her as an individual when compared to her other skills…” The claimant was found to present “some relative weakness with regards to working memory…and these appear to be having a negative impact on some of her literacy attainments, namely the retention of information in order to apply it in the short term, either from reading or from listening to verbal information and being able to write this down efficiently.” Impact statement and evidence on adverse effect[14]I intend to concentrate on what the claimant cannot do as set out in the impact statement (which focuses on understanding, sounds and spoken words) and the claimant’s written submissions, taking each one individually and then cumulatively. Conversations in noisy places.[15]“I have difficulty not only in very noisy places but also in places where there are normal levels of noise such as shopping centres and cafes – places which are regular features of day-to-day activity for most people whilst socialising. Most people can hold conversations without difficulty in such places without having to move to quieter environments. To do so is unrealistic, unreasonable and inconvenient and is an imposition on the other people involved.”[16]In oral evidence the claimant explained that whilst she had good concentration and attention levels “most of the time” when it came to background noise in a busy shopping centre she found it difficult to hold a conversation, and accused Ms Kight of “minimising my experiences” when it was put to her that “lots” of people find it difficult to hold a conversation in a busy shopping environment. The claimant described how she would move to a quieter environment to have the conversations with her friends. Listening to the radio.[17]“I do not listen to the radio without songs because there is no means of pausing or rewinding it. Therefore, I am often unable large parts of what is being said.” The example given by the claimant was not being able to tell anyone what the score was in a football match. In written closing submissions the claimant submitted “If it is common for the general population to listen only to music radio programmes as the Respondent suggests, it is because they have a preference to do so, not because they are unable or have difficulty listening to non-music only programmes as I do. It is far easier for me to listen to music than to listen to, remember and understand the spoken word on the radio.”[18]In oral evidence the claimant described how she was unable to give family and friends the “full low down” about what was being said on the radio, but “I will have an idea…I will try my best to keep up with it and have some sort of insight.” Watching television.[19]“I always need subtitles…I have to pause and/or re-wind.” In written submissions the claimant stated “watching a variety of television programmes is a normal day to day activity which I am unable to or have difficulty doing. If watching with others and having to repeatedly ask them to repeat or explain things or constantly having to pause or rewatch things to understand is a significant adverse effect on ability to enjoy television as others do.”[20]In oral evidence the claimant described how she watched a range of films, including box sets on which “I sometimes binge…40-45 minutes…I use subtitles…can pause or start when I want to…”[21]It was put to the claimant in cross-examination that the medical reports do not reflect the fact that she was experiencing difficulties watching television (or listening to the radio) and the claimant explained that “I didn’t know how I was affected in my everyday life” a statement I find surprising given the claimant’s position now that she has experienced the difficulties described all of her life, and yet she had not raised them with the psychologist at either assessment. I accept Ms Kight’s submission that were the impact on the Claimant’s ability to watch television as substantial as the Claimant asserts in her witness statement it would have been impossible for her to not have noticed it in 2016 and therefore highly unlikely that she would not have reported it specifically to the psychologist.[22]As invited by Ms Kight, I have inferred the Claimant’s evidence on this particular matter does not accurately reflect the reality, concluding she has exaggerated her evidence for the purpose of this litigation. The claimant’s reference to using subtitles rather than listen to the dialogue in a film, appears to contradict her assertion that she experienced difficulties understanding written information despite being able to read the words and undermines the medical evidence. Understanding verbal instructions.[23]The claimant described difficulties she had “understanding even the most basis of instructions” which she described as a “major issue in everyday life.” In written submissions the claimant stated “I submit that I do have substantial difficulties in understanding and or following instructions. With regard to shopping lists I accept that many people use these but, in my case, I do this on every occasion even when there are very few items. Taking notes generally in a work setting, in meetings or in any formal or informal educational or learning environment is I submit a normal day to day activity.”[24]It was put to the claimant in cross-examination that she had better than average ability at listening and talking notes, to which the claimant agreed, arguing she was talking about basic instructions and not understanding a lecture at degree level. There was no satisfactory evidence before me that the claimant’s ability to understand basic instructions had been substantially adversely affected by her condition and it is apparent from her oral evidence that she understood requests from her friends which she was able to write down in a list, for example, a shopping list and carry out her role as a nurse which entailed following instructions. I find the claimant exaggerated the effect, and was capable of taking notes when given “long lists of orally given instructions” for example, on the handover sheet.[25]The claimant referred to making notes during handovers in a clinical setting which she doubled-checked for correctness and having difficulty taking accurate notes at university.[26]Ms Kight is correct that the claimant explained in evidence she is trilingual and translated a patient history for a patient to a colleague in a clinical setting, one of the examples given by the claimant in her application referenced above. Ms Kight submitted that not only must the claimant have understood what the patient was telling her in one of her languages, but she was able to explain what that was in English to her colleague, and this does not suggest that the adverse effect of the Claimant’s impairment on understanding or following instructions, even in a specialised setting, is substantial. I agree.[27]The claimant also described how she would need to keep a shopping list describing in her impact statement how she would forget to buy bread and milk if asked by a friend unless the person asking texted her. The text “overcame” the difficulty. She also described if asked to add to the list by a friend, she would need to be sent a text having forgotten “a couple of times to the point it’s caused a strain in my friendship.” I did not find the claimant’s evidence that she strained her relationship with people, a point she repeated in oral submissions today referring to the weaknesses in her auditory working memory “affecting my ability to retain relationships with family and friends” credible.[28]The claimant accepted in cross-examination that large numbers of people made shopping lists before going shopping so as not to forget the things they need to buy. Conversations with people.[29]The claimant maintains “I have difficulty having conversations with people even when this isn’t a normal environment” explaining how she had difficulty recalling a point previously made. In written submissions the claimant described how “During normal day to day conversations with people whether it is one person or more than one I have difficulty concentrating and understanding and participating in those conversations as others do. My inability to understand, prepare and make written or oral submissions at the end of the previous hearing demonstrate that this difficulty is substantial.”[30]In oral evidence the claimant stated she stuttered, got her words back to front and had difficulty concentrating. In oral evidence the claimant described her stuttering as a “anxiety tick. Where I can’t get my words out…and go blank – in a pressured environment like this” referring to the preliminary hearing. Understanding written information on first reading.[31]In the impact statement the claimant referenced “my difficulties with comprehension are not limited to information given orally. I also have difficulty comprehending written information, even basic written information and I have to read written information at least twice in order to understand it.” In written submissions the claimant stated “my need for repeated re-reading of written information or getting assistance from others is real and genuine and does I submit does amount to a substantial adverse effect. In order to understand handover information, I have to clarify this by repeating to a co-worker, nurse in charge or ward manager in a separate room. Although this was a reasonable strategy used in my last employment, this was not always maintained due to working in a ward setting due to the unpredictability.”[32]The psychologists’ reports confirm the claimant needs to re-read written information once to be able to understand it and answer questions about it. In her impact statement the claimant refers to having to read written information at least twice or get assistance. The claimant’s evidence is not supported by the medical reports, and I accept the submissions made by Mr Kight that the claimant’s evidence is exaggerated and prefer to rely on the medical evidence which was not disputed by the claimant and on which she relies. The 10 June 2021 report refers to the claimant “struggle to understand information which she can read accurately and need to reread information to process meaning.” The reference to the claimant needing to reread information is in the singular not plural and there is no indication the claimant needs to read information “at least” twice” and seek assistance.[33]The claimant’s evidence on cross-examination was she “always clarify the information” on social media and Twitter feeds. When it was put to the claimant on cross-examination that she had overcame any weakness in the auditory function by finding ways to resolve it and/or coping strategies the claimant accept this “to get me degree” describing her learning difficulty was “me not missing a part, it takes me time to digest what is happening.” Writing down information.[34]In her impact statement the claimant explained how it would take her “around ten seconds” to write ‘milk’ and ’bread’ when most people take 4 or 5 seconds, and at work she managed by “going through handover with a colleague in a quiet environment. “ In written submissions the claimant described how “I do write slower than others when recording vital information and more significantly then have difficulty understanding what I have written and comprehending the meaning and this does have a substantial adverse effect on my ability in this area. Although it was suggested by the judge, I would be given time to write down questions and then answer. I was not able to do this simultaneously due to my disability and how lengthy the hearing was. Another contributing factor of this was due to stress which exacerbates my symptoms. I was not able to continue making notes for the rest of the respondents’ cross examination.”[35]In oral evidence the claimant explained that she needs to make sure “there is a positive outcome and attention to detail it will take me time to write down.” The claimant’s evidence is not supported by the psychologists report. The claimant’s handwriting speed when being dictated to was judged to be “considerably faster than the expected adult rate”. The speed at which the Claimant can free write was also measured to be in the “average range”. I found the claimant had exaggerated her evidence, which could not be relied upon.[36]With reference to the claimant’s reference that she would be given time to write down questions and then answer, but “ I was not able to do this simultaneously due to my disability and how lengthy the hearing was.” At the outset of the preliminary hearing reasonable adjustments were discussed and agreed with the claimant and parties referred to the Equal Treatment Bench Book, and later in the process were provided with a link.[37]The claimant agreed that she could write down all of the questions asked by counsel before she answered them. It was agreed she would be given time to write down the questions, seek clarification if needed and request a repeat of the questions before answering, which the claimant did. In direct contrast to the written submission the claimant did not indicate she was unable to write down questions before answering them at any stage throughout the first day of the hearing. It had been agreed the claimant would be given time to read any documents referred to by either counsel or the claimant, which the claimant did. The claimant actively took part in the preliminary hearing and provided a substantial amount of oral evidence, during which time she never complained that she was unable to write down counsel’s questions and then answer them. It was apparent the claimant answered the questions put to her in crossexamination without any difficulties, other than the occasional request to Ms Kight to repeat the question.[38]It was also agreed the claimant would be given any number of breaks as and when required which the claimant took up, and I made it clear that the claimant would not be put under any time pressure. It became apparent when Ms Kight was making oral submissions that an adjournment was necessary in order that the claimant could be provided with the respondent’s written submissions beforehand as it was clear she was struggling with the legal principles and case law, requesting a copy of Ms Kight’s notes. In recognition that the claimant was finding the prospect of responding the Ms Kight’s oral submissions daunting and making oral submissions herself, case management orders were agreed for the claimant to be sent Ms Kight’s submissions before she prepared her own written submissions with a reasonable intervening period between the two events. The claimant produced a 4-page response with references to case law. Law and conclusion: Disability status[39]S.6(1) of the Equality Act 2010 (“EqA”) provides that a person, 'P', has a 'disability' if he or she 'has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.'[40]Schedule 1 of the EqA 2010 sets out factors to be considered in determining whether a person has a disability. S.6(5) of the EqA 2010 provides for the issuing of guidance about matters to be taken into account in deciding any question for the purposes of determining who has a disability. When considering whether a person is disabled for the purposes of the EqA regard should be had to Schedule 1 ('Disability: supplementary provisions') and to the Equality Act (Disability) Regulations 2010, and the 'Guidance on matters to be taken into account in determining questions relating to the definition of disability' under 6(5) of the Equality Act 2010 should be taken into account.[41]The relevant time to consider whether a person was disabled is the date of the alleged discrimination; see the well-known case of McDougall v Richmond Adult Community College [2008] IRLR 227, [2008] ICR 431.[42]Paragraph 5(1) of Schedule 1 to the EqA provides that an impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if measures are being taken to treat or correct it and, but for that, it would be likely to have that effect. In this regard, likely means ‘could well happen’ — the well-known case of Boyle v SCA Packaging Ltd (Equality and Human Rights Commission intervening) [2009] ICR 1056, HL In assessing whether there is a substantial adverse effect on the person’s ability to carry out normal day-to-day activities, any medical treatment which reduces or extinguishes the effects of the impairment should be ignored. Ms Farah has had no medical treatment and measures have not been taken to treat or correct her condition.[43]For any claim to succeed, the burden is on the claimant to show, on the balance of probabilities, something an 'impairment' whether it is a mental or physical condition. In the case of Millar v ICR [2005] SLT 1074, [2006] IRLR 112, the Court of Session held that a physical impairment can be established without establishing causation and, in particular, without being shown to have its origins in any particular illness. The focus should be on what the claimant cannot do, and this test is particularly relevant the claimant’s case and the fact she has self-diagnosed that she was disabled by Auditory Processing Disorder does not go to the heart of the issue and my focus is on what the claimant maintained she could not do as set out in her impact statement and oral evidence.[44]It is not appropriate to have an examination for the purposes of discovering the causes of an alleged disability, since, whatever the cause, a disability which produces the effects specified in legislation will suffice. In considering what amounts to an 'impairment', its effect, not cause is what is of importance. This approach is set out in the Guidance issued under the EqA 2010, where (at para A8) it is stated that 'it is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded.[45]Ms Kight referred me to the Goodwin v Patent Office [1999] ICR 302, EAT, the EAT said that of the four component parts to the definition of a disability and judging whether the effects of a condition are substantial is the most difficult. The EAT went on to set out its explanation of the requirement as follows: ‘What the Act is concerned with is an impairment on the person’s ability to carry out activities. The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. Thus, for example, a person may be able to cook, but only with the greatest difficulty. In order to constitute an adverse effect, it is not the doing of the acts which is the focus of attention but rather the ability to do (or not do) the acts. Experience shows that disabled persons often adjust their lives and circumstances to enable them to cope for themselves. Thus a person whose capacity to communicate through normal speech was obviously impaired might well choose, more or less voluntarily, to live on their own. If one asked such a person whether they managed to carry on their daily lives without undue problems, the answer might well be “yes”, yet their ability to lead a “normal” life had obviously been impaired. Such a person would be unable to communicate through speech and the ability to communicate through speech is obviously a capacity which is needed for carrying out normal day-to-day activities, whether at work or at home. If asked whether they could use the telephone, or ask for directions or which bus to take, the answer would be “no”. Those might be regarded as day-to-day activities contemplated by the legislation, and that person’s ability to carry them out would clearly be regarded as adversely affected.’[46]Appendix 1 to the EHRC Employment Code states account should be taken not only of evidence that a person is performing a particular activity less well but also of evidence that ‘a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation’ (our stress) — para 9. This was not an issue in Ms Farah’s case.[47]Ms Kight also referred to Primaz v Carl Room Restaurants Ltd t/a Mcdonald’s Restaurants Ltd and ors [2022] IRLR 194, EAT, the EAT held that there was no sufficient causal relationship between P’s impairments and the restrictions that she voluntarily imposed on her day-to-day activities because of her beliefs about what would trigger her condition. P suffered from epilepsy and vitiligo and took steps to avoid what she believed, following her own research, to be triggers, including coffee, alcohol, cosmetics, ordinary cleaning products and sunlight. The EAT allowed CRR Ltd.’s appeal holding that the tribunal had been wrong to focus on the adverse effect of P’s coping mechanism. The EAT accepted that, for the purpose of S.6 EqA, the impairment must cause the adverse effect on the person’s ability to do normal day-today activities, and the test of causation is objective. When it is in dispute whether the impairment has the claimed effect, this must be determined by the tribunal on the evidence before it; it is not enough that the claimant truly believes that it does. Thus, in a case where the claimant asserts that engaging in a certain activity will risk triggering or exacerbating some adverse effect of the impairment itself, the tribunal must consider whether it has some evidence that objectively makes good that contention.[48]The focus must be on the extent to which the impairment adversely affects the claimant’s ability to carry out normal day-to-day activities. Substantial is defined in S.212(1) EqA as meaning ‘more than minor or trivial’. In determining whether an adverse effect is substantial, the tribunal must compare the claimant’s ability to carry out normal day-to-day activities with the ability she would have if not impaired. Appendix 1 to the EHRC Employment Code states: ‘The requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people’ — para 8. This should not be interpreted as meaning that in order to assess whether a particular effect is substantial, a comparison should be made with people of ‘normal’ ability — which would be very difficult to ascertain.[49]The claimant referred to Paterson V. Commissioner of Police of The Metropolis [2007] ICR 1522, EAT A dyslexic police officer wanted adjustments to be made under the DDA in respect of his application for promotion. In comparison with ‘the ordinary average norm of the population as a whole’, the tribunal considered that the dyslexia had no more than a minor or trivial impact on his day-to-day activities. Allowing P’s appeal, the EAT (the President of the EAT, Mr Justice Elias, presiding) emphasised that, in assessing an impairment’s effect on a claimant’s ability to carry out normal day-to-day activities, a tribunal should not compare what the claimant can do with what the average person can do. Rather, the correct comparison is between what the claimant can do and what he or she could do without the impairment. Referring to what is now para B1 of the Guidance, Elias P observed that in order to be substantial ‘the effect must fall outwith the normal range of effects that one might expect from a cross section of the population’, but ‘when assessing the effect, the comparison is not with the population at large… what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired’ [my emphasis].[50]The test is whether an adverse effect is ‘substantial’ in the light of the statutory definition: the Guidance and Code are supplementary to this. Ms Kight referred to the meaning of “substantial.” Section 212(1) EqA 2010 defines it as being something which is “more than minor or trivial”. In terms of establishing whether the effect of an impairment is substantial, the Guidance, paragraphs B2-B17 sets out several factors to be taken into consideration.[51]Paragraphs in section D of the Guidance provides an indication of the parameters as to what may constitute a normal day to day activity and the Appendix provides two illustrative lists of factors which it might be reasonable and unreasonable to regard as having a substantial adverse effect on a person’s ability to carry out day to day activities. “Normal day-to-day activities” is not intended to include activities that are normal only for a particular person or small group of people, nor does it include work of a particular form. Equally it does not include normal activities that the person in question is not actually required to perform in their day-to-day life - Vance v Royal Mail Group plc EATS 0003/06). In accordance with this test I found studying for a degree and taking exams did not fall under the definition preferring Ms Kight’s submissions on this point to the claimant’s.[52]In cases where it is not clear whether the effect of an impairment is substantial, the Guidance suggests a number of factors to be considered (see paras B1– B17). These include the time taken by the person to carry out an activity (para B2) and the way in which he or she carries it out (para B3). A comparison is to be made with the time or manner that might be expected if the person did not have the impairment. With reference to Ms Farah and the time she states it takes her to write “bread and milk” being ten seconds as opposed to four/five does not amount to a substantial impairment. It is notable the 14 June 2016 report confirmed the claimant wrote at a rate of 30 words per minute “considerably faster than the expected adult rate of 24-25 words per minute” and I find she was not a credible witness. In the free writing test the claimant wrote at a rate of 25 words pre minute, the highest in the range for students using “appropriate academic vocabulary and spelling.”[53]Another factor to be taken into account, relevant to the claimant’s claim, is ‘how far a person can reasonably be expected to modify her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities’ — para B7 of the Guidance. The Guidance gives the example of a person who needs to avoid certain substances because of allergies who may find the day-to-day activity of eating substantially affected. Account should be taken of the degree to which a person can reasonably be expected to behave in such a way that the impairment ceases to have a substantial adverse effect. The guidance is relevant to the claimant who, for example, moved to a quieter part of a busy shopping centre in order to have a conversation with friends, prepared shopping lists and made notes of conversations/instructions to as an aid to her memory all of which have reduced the effect of her condition on normal day-today activities with the result that the impairment is not “substantial,” and is in accordance with Section 212(1) EqA 2010 not something which is “more than minor or trivial”.[54]The Guidance states that it would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person (see para B9). In Goodwin v Patent Office (above) the EAT cautioned against accepting claimants’ assertions that they can cope with normal daily activities when in fact they may simply have developed avoidance or coping strategies.[55]Paragraph B9 gives the example of a woman who experiences panic attacks who can achieve the day-to-day activity of travelling to work if she travels outside the rush hour. It states that in determining whether she meets the definition of disability, consideration should be given to the extent to which it is reasonable to expect her to place such restrictions on her working and personal life. Ms Farah imposed no restrictions on her day-to-day activities.[56]Paragraph B10 states that if it is possible a person’s ability to manage the effects of an impairment will break down so that effects will sometimes still occur, this possibility must be taken into account when assessing the effects of the impairment. The Guidance gives the example of someone who has dyslexia and whose coping strategies cease to work when he or she is under stress. There was no satisfactory evidence before me that the claimant’s coping strategy’s ceased to work when she was under stress, and it is apparent making lists, re-reading documents and having conversations in quiet areas were successful strategies for the claimant who achieved her nursing degree, translated for patients, and worked in a busy hospital training other nurses according to her job application referenced above.[57]Paragraph D22 states that an impairment may not directly prevent someone from carrying out one or more normal day-to-day activities, but it may still have a substantial adverse long-term effect on how he or she carries out those activities. The Guidance is relevant to the claimant and her coping strategies. Conclusion – applying the law to the facts[58]With reference to the first issue, namely, did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about being 17 November 2020 to 24 November 2020, I find on the balance of probabilities that the claimant has not discharged the burden of showing she had the impairment of auditory processing disorder as relied upon by the claimant, who self-diagnosed.[59]The claimant does have the impairment of a “significant weaknesses in auditory working memory” a condition for which she has been diagnosed. The respondent accepts that the claimant has specific learning difficulties arising from weaknesses in her auditory working memory, as identified in the 14 June 2016 psychologist’s report. The Respondent also accepts that the effect of that impairment is long-term. The key issue in this case is did it have a substantial adverse effect on her ability to carry out day-to-day activities, and it is this difficult issue I will be concentrating on taking the claimant’s day-to-day activities relied upon in the same order as above, individually, and then cumulatively.[60]Whatever label is placed on the claimant’s medical condition, when determining whether the claimant meets the definition of disability under the EqA the Guidance emphasises it is important to focus on what the claimant cannot do, or can only do with difficulty, rather than on the things that she can do (see para B9).[61]Turning to the individual allegations referenced above and applying legal principles to the facts. Conversations in noisy places.[62]Meeting friends and having conversations in shopping centres and cafes are ordinary day-to-day activities, whether they be busy, noisy, or quiet areas. It is not unusual for people to have difficulties carrying out a conversation in a noisy place with or without impairments.[63]Ms Kight referred to the Appendix to the Guidance; “Inability to hold a conversation in a very noisy place, such as a factory floor, a pop concert, a sporting event or alongside a busy main road” as an example of something it would not be reasonable to regard as having a substantial adverse effect on normal day to day activities., and I took the view that the claimant being unable to hold conversations in busy noisy shopping areas and busy noisy cafes fell into this category. Clearly she has no such inability when it comes to conversing in quieter places and she is not prevented by her medical condition from visiting noisy places. There is no satisfactory evidence before me that the claimant experiencing difficulties having conversations in noisy places would be any different had she not have the impairment of a “significant weaknesses in auditory working memory.” On the balance of probabilities I find the impairment did not have a substantial adverse effect on the claimant’s ability to carry out day-to-day activities in respect of carrying out conversations in noisy places such hospital wards, cafes and shopping centres. Listening to the radio.[64]The fact that the claimant can listen to the radio and is unable to give family and friends the “full low down” about what was being said but “I will have an idea…I will try my best to keep up with it and have some sort of insight” does not fall under the statutory definition. On the balance of probabilities I find the impairment did not have a substantial adverse effect on the claimant’s ability to carry out day-to-day activities in respect of listening to the radio when music is not being played.[65]Ms Kight in submissions records the Claimant accepted in cross-examination that people who do not have a particular interest in a subject do not to pay enough attention to such programmes when they are on, to then be able to recall what has been said with any accuracy, for example, football matches the outcome of which the claimant may not be interested in. There was no satisfactory evidence before me that had the claimant not suffered from a significant weaknesses in auditory working memory she would have been better able to listen to the radio and give family and friends a “full low down” of what had been said rather than some “insight”. Watching television.[66]I accept that watching a variety of television programmes is a normal day to day activity for the claimant. On the balance of probabilities I do not accept that the claimant was “unable to or have difficulty” watching television based on the medical evidence before me. The claimant’s evidence was not credible, and had she been incapable or had difficulties in watching television (which the claimant reported she had done all of her life) this would have been raised with both psychologists, and it was not. The claimant’s explanation that she failed to raise it because “I didn’t know how I was affected in my everyday life” was disingenuous and not credible. The claimant explained in oral evidence how she watched a wide range of different programmes ranging from current affairs through to films and box sets, which she could watch for 40-45 minutes at a time, and how she “binged” watching steaming series. This behaviour does not suggest the actions of a person who had difficulty watching television, and taking into account the fact that there was no reference of this difficulty in the medical evidence, I concluded the claimant had exaggerated her evidence and the reality was that she had not reported or mentioned this difficult because there was no substantial impact in 2016, 2022 or more relevant to my consideration, between 17 November 2020 to 24 November 2020.[67]With reference to the claimant’s use of sub-titles, I repeat my observation set out above, that the claimant’s reference to using subtitles rather than listen to the dialogue in a film, appears to contradict her assertion that she experienced difficulties understanding written information despite being able to read the words and this undermines her evidence further. Understanding verbal instructions.[68]As the EAT pointed out in the case of Goodwin (above) the claimant may be able to perform many activities, such as speak three languages, translate for patients, pass her driving licence, study at degree level, achieve a nursing degree and work within a clinical environment, and the impairment may still have a substantial adverse effect on other activities, with the result that the claimant is quite properly to be regarded as meeting the statutory definition of disability. Equally, where a person can carry out an act but only with great difficulty, that person’s ability has been impaired. I accept the claimant’s submission that the fact she has studied for a nursing degree does not indicates her ability to carry out normal day to day activities was not substantially adversely affected: Paterson (above). The claimant submitted that her case “is a clear example that you can maintain a professional job which is a normal day-to-day activity, and have the effects of impairment awhile doing work related activity.” I also accept the claimant’s submission that the fact that she was able to cope in a career or with an academic situation does not mean that she was not substantially disadvantaged. However, on the balance of probabilities and based on the evidence before me, I do not accept the claimant was substantially disadvantaged in carrying out the normal everyday activities of reading, writing, comprehension and processing verbal communications and instructions.[69]The medical evidence is that the claimant has better than average ability at listening and talking notes, to which the claimant agreed. The claimant’s maintains her issue is with understanding basic instructions and not a lecture at degree level. I have difficulties with the claimant’s arguments bearing in mind she is capable of translating a medical history in a clinical setting. Ms Kight submitted that not only must the claimant have understood what the patient was telling her in one of her languages, but she was able to explain what that was in English to her colleague, and this does not suggest that the adverse effect of the Claimant’s impairment on understanding or following instructions, even in a specialised setting, is substantial. I agree with Ms Kight. The reality is that the claimant can understand verbal instructions, and there is no satisfactory evidence before me that the substantial adverse of the claimant’s impairment on understanding or following instructions is substantial.[70]The same point applies to the claimant keeping a shopping list, a reasonable strategy for the claimant and most of the population, to ensure they do not forget to buy the items. I accepted on the balance of probabilities that writing a shopping list or receiving a text from a friend removes or minimise any adverse effect to such an extent that it becomes no more than minor or trivial in relation to the claimant’s ability to shop.[71]Finally, I accept that the taking of notes either in a clinical hand-over situation, or at university lectures and passing exams are not normal day-to-day activities as submitted by Ms Kight. I accept it requires a level of attainment beyond huge swathes of the population, as does passing exams, however, this is not the test. Mr Justice Elias in Patterson emphasised that, in assessing an impairment’s effect on a claimant’s ability to carry out normal day-to-day activities, a tribunal should not compare what the claimant can do with what the average person can do. Rather, the correct comparison is between what the claimant can do and what he or she could do without the impairment applying the statutory definition of more than minor or trivial. It is uncontroversial the claimant has used coping strategies for a number of years, to prevent or reduce the effects of the impairment on normal day-to-day activities hence her success at degree level and professionally as a nurse. Taking notes of what is being said forms part of that strategy, and in the claimant’s case her strategy has altered the effects of the impairment to the extent that they are no longer substantial, they are minor or trivial and no longer meet the definition of disability. The claimant is capable of successfully taking notes, whether it is a shopping list, lecture notes, handover notes, and in so doing she is fortunate that the impairment ceases to have a substantial adverse effect. The fact the claimant makes notes has not resulted in her avoiding normal daily activities, the notes have supported her in achieving academic and professional success. This is not a case where the claimant has placed any restrictions on her working and personal life, and there is no satisfactory evidence that the claimant’s ability to manage the effects of the impairment will break down so that effects will sometimes still occur, i.e. that her coping strategy of taking notes has ceased to work. The claimant’s submission that she was unable to take notes in order that she could dealt with the evidence at the preliminary hearing was not evident by the claimant’s behaviour, the way she gave evidence and conducted herself when cross-examining Andrea Boylan, and when she was challenged by Ms Kight on this, failed to provide a coherent explanation to the Tribunal. It is notable the claimant made no reference to being unable to take notes of the hearing until it came to oral closing submissions when she wanted sight of Ms Kight’s notes.[72]With reference to the claimant’s behaviour and how she conducted herself at the preliminary hearing, I have not used it as a basis of drawing a conclusion that her behaviour was representative of the claimant generally in the relevant period. It is merely a factual observation of what transpired at the preliminary hearing which undermined the claimant’s submissions on this point and raised credibility issues. Conversations with people.[73]The psychologists’ reports do not refer to the claimant stuttering and I preferred Ms Kight’s submission that there is no evidence of it being a result of her identified impairment. Both reports refer to the Claimant having “good concentration and attention” which the claimant accepted in cross examination was true “most of the time” as recorded above. There is no medical evidence to the effect that the claimant was and is inarticulate or struggles to keep up conversations with people. Clearly, the claimant can successfully converse with people, including the psychologists, her friends (providing she is not in a busy noisy area), her family discussing what she had heard on the radio and television, patients by translating their care needs, handovers which she records in writing by taking notes and those lecturers/tutors at university when she was reading for her degree.[74]I have dealt with the claimant’s evidence as recorded above, having found her to have been a less than credible witnesses, preferring the written and oral evidence of Andrea Boylan that she did not recollect the claimant came across with any difficulties at the interview when it was put to her by the claimant that she had stuttered, searched for words ad her mind had gone blank. Andrea Boylan gave credible evidence that the claimant had come across to her as articulate, could answer any question without pause or difficulty, no stutter or problems or issue articulating the answer to the question, a description that fit the claimant’s behaviour at this liability hearing, despite the reference by her to it being a pressured environment, which is unsurprising given the claimant is a litigant in person involved dealing with a preliminary hearing.[75]It was put to the claimant by Ms Kight that she had not stuttered or got her words back to front at the interview with Andrea Boylan and throughout the first day of the preliminary hearing. The claimant disputed this referring to an interview question she had struggled with at the interview, and maintaining she had stuttered during the preliminary hearing when “I can’t get words out.” It was put to the claimant that she had been able to answer comprehensive questions without help, had read documents accurately and read out a document accurately. Ms Kight was correct in her analysis of the claimant’s performance at a preliminary hearing which any party would find stressful, even with the implementation of the reasonable adjustments that were put in place for the claimant. The claimant did not stutter, she did not go blank, there were no instances of the claimant not getting her words out, she did not get her words back to front (which the claimant conceded), she extensively cross-examined Andrea Boylan without any difficulties and was able to answer questions on crossexamination, read documents, give evidence, and make oral closing submissions without difficulty.[76]Ms Kight is also correct in her submission that in giving her evidence the claimant demonstrated not only an ability to understand many of the questions she was asked without there being a need to repeat them, but also an ability to retain information from earlier questions and clarify her answers to several points she had raised in her evidence earlier, as well as explain and expand upon her answers. According to the claimant’s written submission, all of this was done without her taking any notes despite the invitation that she do so.[77]The reality is that the claimant can understand and have conversations with people, and there is no satisfactory evidence of any substantial adverse effect on the claimant. On the balance of probabilities I find the Claimant’s impairment does not have a substantial adverse effect on her ability to carry out normal day to day activities relating to verbal communication. Understanding written information on first reading.[78]The psychologists’ reports confirm the Claimant needs to re-read written information once to be able to understand it and answer questions about it. The reference is to the claimant needing to re-reading information is in the singular not plural. There is no indication the claimant needs to read information “at least” twice” and seek assistance from other people in order to understand what she is reading and having found the claimant was not a credible witness on a number of matters, I concluded that her evidence could not be relied upon bearing in mind the earlier evidence that she gave concerning being unable to watch television without using subtitles and stuttering.[79]Ms Kight is correct in her submission that there was no evidence before me to suggest that the effect of the Claimant’s impairment on her comprehension of written information on its first reading prevents her from doing any normal day-to-day activities or that she avoids doing any such activities as a coping strategy. Ms Kight accepts having to re-read information once would have some impact upon the amount of time it takes the claimant to do normal day-to-day activities which involve understanding written information, it is submitted that this is not sufficient to amount to a substantial adverse effect. I agree.[80]Ms Kight referred to the Appendix to the Guidance which provides the following example as a factor which if experienced by a person it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities: “Persistent and significant difficulty in reading or understanding written material where this is in the person’s native written language, for example because of a mental impairment, or learning disability…” submitting that the claimant needing to re-read information once is not demonstrative of a “significant difficulty”, particularly when one considers that the claimant’s evidence is that she is tri lingual.[81]I accepted Ms Kight’s submission that there is no evidence to suggest that the effect of the Claimant’s impairment on her comprehension of written information on its first reading prevents her from doing any normal day-to-day activities altogether, or that she avoids doing any such activities as a coping strategy. The claimant’s need to re-read written information prevents or reduces the effects of the impairment on normal day-to-day activities and I repeat the observations made above concerning the strategies put in place by the claimant and the lack of any satisfactory evidence that her ability to manage the effects of the impairment will break down so that effects will sometimes still occur, i.e. that she is unable to re-read documents. I find on the balance of probabilities that the Claimant’s impairment does not have a substantial adverse effect on her ability to carry out normal day-to-day activities which require her to understand written information. Writing down information quickly.[82]There was no satisfactory evidence that the claimant’s impairment had a substantial adverse effect on the speed with which she can write things down. The claimant’s evidence is not supported by the psychologists’ reports. The claimant’s handwriting speed when being dictated to was judged to be “considerably faster than the expected adult rate”. The speed at which the Claimant can free write was also measured to be in the “average range”. I found the claimant had exaggerated her evidence, which could not be relied upon.[83]In conclusion, taking into account my findings above, on the balance of probabilities I found any adverse impact of it on the claimant’s ability to carry out normal day-to-day activities was no more than minor or trivial. The claimant did not have medical treatment, including medication, or take other measures to treat or correct the impairment. The claimant has not discharged the burden to show she has an impairment which falls under section 6 of the EqA during the relevant period, the Tribunal does not have the jurisdiction to consider the complaints of disability discrimination, which are dismissed.[84]At the end of oral closing submissions the claimant indicated that she intended to appeal if I found against her. We had a brief discussion when I explained that she had every right to appeal and information concerning appeals to the EAT will accompany this reserved judgment and reasons. 28.6.22[1]The claimant is a registered general nurse. She applied for the role of preassessment nurse with the respondent. She was not successful following an initial telephone interview on 17 November 2020 and a second interview by Zoom on 24 November 2020. She was given feedback on 25 November 2020. She claims that the respondent breached the duty to make reasonable adjustments, and that it acted in a way which was discrimination arising from disability. She also alleges disabilityrelated harassment in relation to the feedback call. Claims and Issues[2]The claim has a long and complex procedural history. Preliminary hearings were held on 10 June 2021, 17 March 2022, 12 May 2022, 11 April 2024, 22 April 2025 and 28 April 2025. There was also a reconsideration hearing on 13 July 2023.[3]The issues to be determined in the claim were identified and a list was appended to the first case management order made following the preliminary hearing on 10 June 2021. That remained the list of the issues to be determined at the start of this hearing.[4]It had previously been found that the claimant was disabled at the relevant time on the basis that her learning difficulties arising from weakness in her auditory working memory had a substantial long term effect on her ability to carry out normal day to day activities. We did not need to determine issue one in the list of issues.[5]At the start of this hearing, the respondent suggested that we determined the liability issues first. We should only determine remedy issues after liability was determined and if required. When it was explained to her, the claimant agreed with that approach. That meant that we did not need to determine issues 4.7-4.12 in the attached list of issues, except for issue 4.11 which it was agreed should be determined alongside the liability issues.[6]The list of issues was included in the bundle (51).
Procedure
[7]The claimant represented herself at the start of the hearing. On the first and last day she was accompanied by Ms A McFarlane, her McKenzie friend. A barrister, Ms S Phumaphi, attended and represented the claimant on the second and third days of the hearing (only).[8]Ms R Senior, a barrister, represented the respondent.[9]The hearing was conducted in-person with both parties and all witnesses attending in-person in the Employment Tribunal in Manchester.[10]We were provided with a bundle of documents which ran to 284 pages. We were also provided with some additional documents at the start of the hearing, some of which were clearer typed versions of what was said in emails in the bundle (which had very small print and were difficult to read). We read the documents in the bundle to which we were referred in witness statements, by the parties, or during questioning. Where we refer to a number in brackets in this Judgment, that is a reference to a page number in the bundle.[11]We were provided with witness statements from the witnesses called to give evidence. We read those witness statements on the first morning of the hearing. For Mrs Boylan we were provided with two witness statements: one signed in 2021 which had been written for the first hearing at which it was being considered whether the claimant had a disability; and a second dated April 2025 which provided additional evidence for this hearing.[12]We heard evidence from the claimant, who was cross examined by the respondent’s representative, and we asked her questions. We heard her evidence on the afternoon of the first day and the morning of the second.[13]We heard evidence from the following witnesses for the respondent. Each was cross-examined by the claimant’s barrister (who attended on the second and third days), and we asked them questions, and they were re-examined. The respondent’s witnesses were: Ms Natalie Naughton, at the time of the interview senior pre op assessment nurse and now lead pre op assessment nurse; Mrs Andrea Boylan, nurse; and Mrs Laura Irving, senior recruitment advisor. The respondent’s evidence was heard during the (extended) afternoon of the second day and the morning of the third.[14]After the evidence was heard, each of the parties was given the opportunity to make submissions. The respondent’s counsel provided a written submission which detailed the relevant law only. Submissions were made orally on the afternoon of the third day.[15]We adjourned the hearing and reached a decision before informing the parties of our decision on the afternoon of the fourth day.[16]At the preliminary hearing on 28 April 2025, the Employment Tribunal had decided that the following reasonable adjustments should be made. They had also decided that other reasonable adjustments sought by the claimant would not be made. The adjustments which were identified to be made (273) and which were made during this hearing were:a. Regular breaks, which were taken whenever the claimant requested them (and, in any event, no less than once every hour and fifteen minutes);b. The claimant was allowed plenty of time to process the information before answering questions put to her in cross-examination;c. The claimant was able to ask for any question to be repeated and, where it was possible to do so, either the respondent’s counsel or the Employment Judge repeated the question or rephrased what was asked;d. The questions asked were asked in a straightforward way, avoiding tag questions, legal jargon, compound questions and double negatives. The respondent’s counsel explained each of the themes about which questions were being asked and sign-posted when she changed theme. The claimant was allowed plenty of time to read documents identified during cross-examination; ande. The claimant was given access to a quiet room reserved for her use during the hearing.[17]It was confirmed that the respondent’s counsel did not need to put the respondent’s case to the claimant in cross examination in the same way as she might normally.[18]In addition, the claimant was given a blank pad of paper when being crossexamined and she was allowed to write on that pad during cross-examination. The claimant was not allowed to take notes she had prepared in advance with her to the witness table, when she gave evidence (as was also the case for all witnesses).[19]At the start of the hearing, the claimant applied to be allowed to use AI software to record the first day of the hearing and produce a document. When asked to clarify what she was asking to do, she was seeking to use an App on her phone to record the hearing (which would produce a note with AI assistance) or, in the alternative if the use of her phone was the issue, she offered to do so using her laptop computer. The reason why the claimant wished to do so was because she wished to provide a note to her counsel on the second day of what had occurred on the first. We heard brief submissions from the claimant. Following a break, the respondent’s counsel outlined the respondent’s initial response. The claimant then provided further submissions/points, to which the respondent responded. We then adjourned briefly to reach a decision, before returning and informing the parties of our decision.[20]The decision that we made was that we would not allow the claimant to record the hearing on the first day in the way in which she proposed. Our starting point was that the usual rule in a Tribunal hearing is that a party is not able to record a hearing. We appreciated that what we were being asked to do was a potential reasonable adjustment which we were being asked to make to address a disadvantage which the claimant said that she suffered as a result of her disability and, in particular, her short-term memory issues. However, we noted that on the first day the claimant was accompanied by her McKenzie Friend and her sister. Either or both of those individuals were able to make a note of the evidence heard on the first day. That note (or those notes) would be able to be provided to the barrister to explain what had taken place. As a result, the claimant was in the same position as any other party at the Tribunal, a note would be able to be taken recording what was being said. She was therefore not at a disadvantage as a result of her disability and was in a better position than many other claimants who attend a hearing on their own. We also decided that even if there were any disadvantage to the claimant arising from her short-term memory, that was able to be alleviated by other means, that is by the people supporting her taking notes of what occurred. In submissions, the claimant had referred to her concern that the notes would be incomplete or less thorough than an AI supported recording, but we found that the claimant would be, in that respect, in the same position as any other party to a Tribunal hearing.[21]In her submissions on this issue, the respondent’s counsel referred to the decision of the Employment Appeal Tribunal in Bella v Barclays Execution Services Limited [2024] EAT 16. That decision emphasised what was said by the Employment Appeal Tribunal in Heal v The Chancellor, Master and Scholars of the University of Oxford [2020] ICR 1294. As we have said, we were mindful that we were under a duty to make reasonable adjustments to alleviate any substantial disadvantage related to disability in the claimant’s ability to participate in proceedings. We determined that we believed that any potential disadvantage for the claimant could be alleviated by other means. We were concerned about the potential risk of any recording and AI related operation being used for prohibited purposes. We decided that we did not need to permit the claimant to record and translate the hearing in the way she proposed, as she had people with her who could take notes as a record of the day for which her barrister would not be in attendance.[22]Written reasons were requested and, as a result, the Judgment and the reasons for it are contained in this document.
Facts
[23]The claimant is a registered general nurse. She qualified in late 2017. We were provided with her CV (216). In the period immediately preceding her application to the respondent, she had taken time away from full-time work to provide care for a family member but had continued to undertake sufficient bank work for NHS Professionals to enable her to retain her registration.[24]The claimant has difficulties arising from auditory working memory. Prior to this hearing it had been determined that amounted to a disability at the relevant time. We were provided with a diagnostic assessment report by Dr Smith, a chartered psychologist, from 14 June 2016 (163), and a more recent workplace assessment by Dr Fox, a Practitioner Psychologist, of 10 June 2021 (181) (that was prepared after the events about which we heard evidence). We were also provided with a copy of the claimant’s disability impact statement (182) and her submission for the disability hearing (278) both of which provided detail about the impact that the claimant’s disability had upon her.[25]The claimant applied for a role with the respondent as a pre-assessment nurse. We were provided with the job description for the role (189). Amongst other things, the person profile part of the job description described as essential “Significant nursing experience with some pre-assessment experience” and desirable “Significant pre-assessment experience [and] previous experience in a surgical environment”.[26]On 17 November 2020 Laura Irving undertook a telephone interview with the claimant. At the time Mrs Irving had been employed by the respondent for two weeks. It was the first interview she had conducted for the respondent. We were provided with a document completed by Mrs Irving on screen at the time of the interview (195). It was the respondent’s case, that what was asked followed the structure set out in the document and what was answered was as recorded on the document. The claimant did not disagree that the interview had followed the structure of the document, but she disagreed that exactly what she said had been recorded.[27]The key issue of dispute was what was said about disability and adjustments.[28]The note made at the time recorded the only question as being “Any special adjustments required to attend an interview?” to which the recorded answer was “no”.[29]Mrs Irving’s written evidence was that all that was said was what was recorded in the note. In her oral evidence, she described being asked to explain what the question meant, explaining it with reference to parking, and being given the answer recorded.[30]The claimant’s evidence was that she explained to Mrs Irving in the call that she had a learning disability. She said that Mrs Irving prefaced the adjustment question by explaining that the interview was to be conducted virtually so there weren’t any adjustments to be made (and mentioning Covid), leaving the claimant with the impression that only physical adjustments would be considered. The claimant’s evidence was that she said “unsure” when asked the question about whether any adjustments were required.[31]On occasion during cross-examination when asked about details of the 17 November call, the claimant explained that the interview was over five years ago, and she did not recall.[32]It was not either party’s case that the claimant expressly referred in the telephone conversation to any specific adjustments which she asked to be made.[33]The claimant’s evidence was that when applying to other potential employers, disclosing her disability to them had led to a discussion about the adjustments which might be made, with the potential employers proactively offering the claimant adjustments which they believed could be made in the light of her disclosure of her disability. It was her evidence that had occurred both before and after her application to the respondent.[34]The claimant was put forward to second interview. The second interview took place on 24 November 2020. It was conducted by Mrs Boylan and Ms Naughton (both nurses) by Zoom (due to the Covid situation at the time). Ms Naughton took notes within an interview record form which also recorded the questions asked and the score given to the answers provided (198). Mrs Boylan asked the questions.[35]The notes recorded that the claimant referred to her learning difficulty when answering a specific question about her last appraisal, what her objectives were, how she had achieved them, and how she had translated that into the next year’s appraisal. The example given by the claimant was about how she had struggled when handing over due to her learning difficulty, and it was not in dispute that she went on to speak about how she had used notes to ensure that she recalled what she was told on hand over. Neither Mrs Boylan nor Ms Naughton asked the claimant anything further about her mention of learning difficulty. When asked why she had not done so, Mrs Boylan said that she did not think it was appropriate to force the candidate to provide personal information or to be required to discuss further any learning difficulty in the interview. She said that she believed that the answer given had reflected that the claimant had an effective coping strategy in a clinical setting with the difficulty to which she had referred and which she was articulating at the time.[36]It was the claimant’s case that she referred to learning disability in the interview. In her witness statement, the claimant said she disclosed her specific learning difficulty (she did not say she said disability). It was the evidence of both Ms Naughton and Mrs Boylan that the claimant referred to learning difficulty, not disability. That was what was recorded in the notes. The claimant’s verbal evidence was that she used the two phrases (learning disability and learning difficulty) interchangeably.[37]The notes provided the score given to the claimant for each question and a total score. It was the evidence of Ms Naughton and Mrs Boylan that the score was discussed, agreed and recorded, following the interview. Out of four for each question, the claimant was scored one, two, two, three, two and one, giving a total of eleven. Ms Naughton confirmed that no particular question had a greater weight towards appointment than any other. We were not informed of a minimum score for appointment or of any scoring requirements for appointment.[38]At the end of the notes (202), in a section on decision and feedback highlights, there were two reasons recorded. Mrs Boylan wrote that element of the form. The first was “unable to elaborate on answers without a significant prompting”. The second was “Limited pre op experience, very little knowledge around role of pre op nurse – questions seemed to be answered around ward nursing not POA”.[39]It was not in dispute that no particular adjustments were made for the claimant for the second interview. She was asked the same six set questions as all candidates (following the introductory discussion). She was not informed what she would be asked in advance.[40]In her witness statement, the claimant said the following about her second interview: “The atmosphere of the interview was positive”. Notably, the claimant’s witness statement did not contain any statement which suggested she had been rushed or not given the time she needed to answer the questions asked during the interview. When asked about this in cross-examination, the claimant’s evidence was that she could not recall. It was Mrs Boylan’s evidence that the claimant was allowed plenty of time in the interview to consider the question and give her response. It was also Mrs Boylan’s evidence that during the interview itself the claimant did not hesitate or pause for any length of time over her answers, she was passionate, articulate, engaging and enthusiastic, and she spoke confidently at first before appearing slightly more nervous later in the interview, but not struggling to answer. Mrs Boylan could not recall precisely when the claimant had appeared more nervous, but she believed it was during the answers to questions, not simply after the introductory questions had been asked.[41]None of the witnesses could recall exactly how long the interview had lasted, although Mrs Boylan’s evidence was that it was a normal length. The Zoom invite sent prior to the interview recorded that it had been arranged for half an hour. There were some inconclusive questions and answers about the length of the Zoom meeting, in the light of the licences and the limited time for such calls.[42]The claimant was not successful. Another candidate was interviewed, offered, and (initially) accepted the role. We were not provided with any evidence about the other candidate’s scores or the basis upon which she was offered the role, save that we were told that she undertook the same interview with Ms Naughton and Mrs Boylan and was asked the same questions as the claimant. It was thought that she was interviewed after the claimant.[43]The claimant was provided with feedback by Mrs Boylan in a telephone conversation on the afternoon of 25 November 2020. No notes were taken of the call by either attendee.[44]It was the claimant’s evidence that she was told that she lacked experience. Her witness statement said that she challenged this feedback as she believed that she met the job specification and had the relevant experience. It was the claimant’s evidence in her witness statement that Mrs Boylan’s tone became defensive and she said “I’ve already made my mind up and I can’t change it”. The claimant said that she attempted to explain that she had a learning disability and sought clarification but instead was questioned abruptly about her understanding of the role and the scoring. The claimant said she found the exchange upsetting and felt dismissed and interrogated. In her verbal evidence she referred to feeling humiliated. In a list of key issues from the call, the claimant also said: the feedback was vague; Mrs Boylan’s tone was defensive, she refused to elaborate meaningfully on what lack of experience meant; and that Mrs Boylan made reference to the claimant’s leave to care for a family member being a negative factor.[45]It was Mrs Boylan’s evidence that she explained to the claimant that she lacked the experience required for the pre-operative assessment role. She said that she told the claimant that she had needed prompting to answer a few of the questions, which she believed came from a lack of experience. She told the claimant she was obviously enthusiastic and said she would be happy that she would be suitable for the role over time. She denied speaking to the claimant in an abrupt and patronising manner and said she was polite and professional throughout the call. In her evidence at the Tribunal hearing, Mrs Boylan denied saying what the claimant alleged about having made her mind up (whilst referring to the fact that it was five years ago), she said the claimant interrupted her when she was trying to explain and said that the claimant’s time taken to care for her mother was not relevant to the decision. When asked whether the claimant referenced her learning difficulty or disability in the call, Mrs Boylan appeared to choose her words carefully when she said that it was not her belief that it was mentioned in the telephone call.[46]The claimant sought written feedback from the respondent about why she had been unsuccessful. In an exchange of emails as a result, on 27 November 2020, Mrs Boylan said the following to Mrs Irving (204): “I am afraid Fatima was not successful as she could not articulate the role of the POA nurse adequately on questioning and when questioned around people she would liaise with she could talk about the wider hospital MDT but did not seem aware that the consultant and the anaesthetist, who would be lead for the patients care were pivotal in the decision making process. While she has an experience of surgical nursing and the admission process, this very different to the pre assessment process and it was evident throughout her interview that there was a lack of experience within the remit of the POA. Her character and enthusiasm as mentioned previously is something that is a credit to her, and I have no doubt that she will be successful in another role, I don’t feel at this time Pre assessment is the correct place for her due to her lack of experience and following time away from the profession to care for her mother”[47]On 7 December the claimant emailed Mrs Irving asking about things which had been said in the conversation with Mrs Boylan (282). The claimant went on to say, “Having disclosed my learning disability beforehand I would have hoped for a level of reasonable adjustment, especially considering the scoring”.[48]On 9 December the claimant was provided with feedback in an email from Mrs Irving (210). Within that email Mrs Irving said, “Regarding your learning disability, is this something you discussed with Andrea at the beginning of the interview as on the telephone interview with me I asked if you needed any reasonable adjustments to be made for your interview and you answered no”. The claimant responded that afternoon and said “In the telephone interview you stated that the interview would be virtual, therefore there was not any need for reasonable adjustments in terms of attending. You then proceeded to ask me what I needed to which I responded I was unsure”. Notably, the claimant did not assert in response that she had told Mrs Irving about her disability in the earlier call.[49]On 18 December 2020 the claimant sent an email to the respondent which contained a detailed account of what she said had occurred (213). In that email the claimant said that when speaking to Mrs Irving she had disclosed her learning disability. She said that when she was asked if she required support, she had responded with “unsure”. The email said that Mrs Irving had proceeded to cross not for now and stated that the claimant could make the interviewers aware if she wished to. It was not clear on what basis the claimant could have described what Mrs Irving had recorded on the form, when the interview had been by telephone. There was no evidence that Mrs Irving recorded not for now on any document.[50]In her email of 18 December, the claimant said of the second interview “The interview was a pleasant experience and I also shared my specific learning difficulty (SpLD) and how I work”.[51]With regard to the call of 25 November, the claimant also provided an account of what was said in her email of 18 December. The claimant said that she was told at the start of the call that she had interviewed well, had a great personality, and would be an asset to the respondent in the future. She said that “Whilst trying to obtain more of an understanding by what she meant by lack of experience, AB responded “that I interviewed well, I had great personality, I would be an asset to spire or that maybe I should apply in two 2 years’ time”. I stated that my experience was primarily within surgery and not only do I regularly complete admissions but I also regularly do surgical safety checklists. I would not have applied if my experience was not aligned with the job specification. I was simply trying to understand what she meant by experience and wished for her to elaborate to which she then became defensive”.[52]In her email, the claimant then quoted Mrs Boylan as having made the same statement as she alleged in her witness statement. The claimant went on to say that she had attempted to explain again that she had a learning disability and was advised to take time when answering questions. She said that Mrs Boylan had in a very abrupt manner, begun to interrogate her. She said that she had been told that there was only one job to offer, and the claimant had not scored as highly as the other candidate, something which the claimant said she found to conflict with being told that she did not have the relevant experience.[53]We were provided with an email from Ben Curley to Evelyn Lingard of 14 January 2021 which contained a timeline of activity and referred to it as having been discussed with Mrs Irving (230). Of the interview on 17 November the timeline recorded “LI asked the question “Are any special adjustments required to attend an interview?” FF said I don’t understand the question. LI explained the interview process and that it would be held via a zoom call due to the COVID Pandemic. LI then repeated the question. FF replied “No””.[54]In her evidence, Mrs Boylan drew a distinction between ward-based experience and pre-operative assessment experience (she referred to them as being entirely separate domains). It was her evidence, that the claimant did not demonstrate any pre-operative assessment experience. She also gave evidence that the claimant’s answer to one of the questions asked had shown her lack of experience because of those to whom the claimant referred. The claimant disputed that her answer demonstrated such a lack of experience. When asked at the Tribunal hearing about her own pre-operative assessment experience, the claimant referred to work she had undertaken when employed by NHS Professionals.[55]In her answers to questions asked in cross-examination, Ms Naughton said that she did not believe that the questions could be given in advance of the interview, because for this type of role it was necessary to test the candidate’s knowledge (she referred to patient safety). She said that even if the questions were given an hour before the interview, someone with Google would be able to work out what the answers should be, so you would not be checking that the person had the knowledge required in a healthcare setting. Mrs Boylan said that she would not have provided the questions in advance of the interview, because she wanted to test the knowledge of a candidate and providing questions prior to the interview would enable anybody to provide a textbook answer. She also said that, in her experience, she had never been asked to provide questions prior to a clinical role interview.[56]The claimant was not offered the opportunity to be re-interviewed for the role.[57]This Judgment does not seek to address every point about which we heard. 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 it in these reasons.
The Law
[58]Section 26 of the Equality Act 2010 says: “A person(a) (A) harasses another(b) (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.” “In deciding whether conduct has the purpose or effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect.”[59]The EAT in Richmond Pharmacology v Dhaliwal [2009] IRLR 336, stated that harassment is defined in a way that focuses on three elements:(a) unwanted conduct;(b) having the purpose or effect of either: (i) violating the claimant's dignity; or (ii) creating an adverse environment for her;(c) on the prohibited grounds. Although many cases will involve considerable overlap between the three elements, it is normally a healthy discipline for Tribunals to address each factor separately and ensure that factual findings are made on each of them.[60]Conduct which is intended to have the relevant effect will be unlawful even if it does not, in fact, have that effect. A respondent can be liable for effects, even if they were not its purpose.[61]If the conduct has had the proscribed effect, it must also be reasonable that it did so. The test in this regard has both subjective and objective elements to it. The assessment requires us to consider the effect of the conduct from the claimant's point of view; the subjective element. We must also ask, however, whether it was reasonable of the claimant to consider that conduct had that requisite effect; the objective element. We must do that taking into account all the other circumstances of the case.[62]Tribunals have been warned that whilst it is important to be sensitive to the hurt that can be caused by comments or conduct, it is important not to encourage a culture of hypersensitivity or the imposition of legal liability for every unfortunate phrase. We must consider whether it was reasonable for the conduct to have the effect on this claimant.[63]The respondent’s counsel reminded us of what was said in Grant v HM Land Registry [2011] IRLR 478 about the facts of that particular case: “Even if in fact the disclosure was unwanted, and the claimant was upset by it, the effect cannot amount to a violation of dignity, nor can it properly be described as creating an intimidating, hostile, degrading, humiliating or offensive environment. Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment. The claimant was no doubt upset … but that is far from attracting the epithets required to constitute harassment. In my view, to describe this incident as the Tribunal did as subjecting the claimant to a “humiliating environment” when he heard of it some months later is a distortion of language which brings discrimination law into disrepute”[64]We must also decide whether the conduct related to disability. There is not a requirement that the conduct must be motivated by disability. It is always relevant to take into account the context of the conduct which is likely to be an important factor.[65]Section 15 of the Equality Act 2010 provides:(1) A person (A) discriminates against a disabled person (B) if — (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[66]For unfavourable treatment there is no need for a comparison, as there would be for direct discrimination. However, the treatment must be unfavourable, that is there must be something intrinsically disadvantageous to it.[67]In Sheikholeslami v University of Edinburgh [2018] IRLR 1090 the Employment Appeal Tribunal held that: ''the approach to s 15 Equality Act 2010 is now well established … In short, this provision requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) something? and(ii) did that something arise in consequence of B's disability? The first issue involves an examination of the putative discriminator's state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.”[68]Pnaiser v NHS England [2016] IRLR 170 outlined the correct approach to be taken: “From these authorities, the proper approach can be summarised as follows:(a) A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.(b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The 'something' that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises….(d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. That expression 'arising in consequence of' could describe a range of causal links. Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.(e) For example, in Land Registry v Houghton a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (h) Moreover, the statutory language of s.15(2) makes clear … that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the 'something' leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of s.15 would be substantially restricted on Miss Jeram's construction, and there would be little or no difference between a direct disability discrimination claim under s.13 and a discrimination arising from disability claim under s.15. (i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed.”[69]As the respondent’s counsel emphasised, what amounts to unfavourable treatment was considered by the Supreme Court in Williams v Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65 in which it was that said there was a relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify, but that treatment which is advantageous cannot said to be unfavourable merely because it is thought it could have been more advantageous or because it is insufficiently advantageous.[70]Section 15(1)(b) provides that unfavourable treatment can be justified where it is a proportionate means of achieving a legitimate aim. That requires: identification of the aim; determination of whether it is a legitimate aim; and a decision about whether the treatment was a proportionate means of achieving that aim. The test is an objective one, for which we must make our own assessment.[71]The respondent’s counsel highlighted what was said in Department of Work and Pensions v Boyers UKEAT/0282/19 and the need to balance the real needs of the organisation against the discriminatory effect of the thing being justified.[72]We must take into account the EHRC Code of Practice on Employment. We considered the guidance in relation to unfavourable treatment (5.7) and objective justification (4.25-4.32, 5.11 and 5.12). It is for the respondent to justify the practice, and it is up to the respondent to produce evidence to support its assertion that it is justified. We must ask ourselves whether the aim is legal non-discriminatory and one that represents a real, objective consideration? We must then ask whether the means of achieving the aim is proportionate? Treatment will be proportionate if it is ‘an appropriate and necessary’ means of achieving a legitimate aim. Necessary does not mean that it is the only possible way of achieving the legitimate aim, it will be sufficient that the same aim could not be achieved by less discriminatory means.[73]The code of practice also says (in paras 5.8 and 5.9) that something that arises in consequence of the disability means that there must be a connection between whatever led to the unfavourable treatment and the disability. The consequences of a disability include anything which is the result, effect or outcome of a disability. Some consequences may not be obvious.[74]Section 20 of the Equality Act 2010 imposes a duty to make reasonable adjustments. Section 20(3) provides that the duty comprises the requirement that where a provision, criterion or practice puts a person with a disability at a substantial disadvantage in relation to a relevant matter in comparison with people who do not have the disability, to take such steps as it is reasonable to have to take to avoid the disadvantage. That requires not only the existence of a disability, but also: identification of a PCP; and knowledge (actual or constructive) on the part of the respondent.[75]In paragraph 20 in part 3 of schedule 8 of the Equality Act 2010, the following is said about knowledge: “(1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know -(a) in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question;(b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first … requirement”[76]Section 21 of the Equality Act 2010 provides that a failure to comply with the requirement set out in section 20 is a failure to comply with a duty to make reasonable adjustments.[77]Environment Agency v Rowan [2008] IRLR 20 is authority that the matters we must identify in relation to a claim of discrimination on the grounds of failure to make reasonable adjustments are:a. the provision, criterion or practice applied by or on behalf of a respondent;b. the identity of non-disabled comparators (where appropriate); andc. the nature and extent of the substantial disadvantage suffered by the claimant, including: i. the nature of the claimant’s disability; ii. why this disability placed the claimant at a substantial disadvantage; iii. what the substantial disadvantage was.[78]As the claimant’s counsel emphasised, the requirement can involve treating the person with the disability more favourably than others (she relied upon Archibald v Fife Council [2004] ICR 954).[79]Whether something is a provision, criterion or practice should not be approached too restrictively or technically, it is intended that phrase should be construed widely. A one-off act can be a PCP, but it is not necessarily the case that it is.[80]We are to objectively assess the issue of whether the person with the disability has been put at a substantial disadvantage and there must obviously be some causative nexus between the disability relied upon and the substantial disadvantage. We must consider the overall picture.[81]In assessing the efficacy of any proposed step, it is only necessary to establish that there was a real prospect of the step avoiding or reducing the relevant disadvantage.[82]A duty to consult is not of itself imposed by the duty to make reasonable adjustments, the only question is, objectively, whether the respondent has complied with its obligation to make a reasonable adjustment or not. The duty involves the taking of substantive steps, rather than consulting about what steps might be taken.[83]In terms of knowledge of disability and reasonable adjustments, the duty only applies if the respondent: knew or could reasonably be expected to know that the claimant had the disability; and knew or could reasonably be expected to know that the claimant was likely to be placed at a substantial disadvantage compared with persons who are not disabled (that is aware of the disadvantage caused by the application of the PCP). The question of whether the respondent could reasonably be expected to know of the disability and/or the substantial disadvantage is a question of fact for us to decide.[84]The claimant’s counsel emphasised that, if the respondent did not know that the claimant was likely to be placed at the substantial disadvantage, then the relevant section did not impose a duty to make reasonable adjustments, relying upon Secretary of State for Pensions v Alam UKEAT/0242/09. She also quoted at length from the decision in AECOM Limited v Mallon [2023] EAT 104, passages which we took into account (one of those passages summarising the decision in Ridout v T C Group [1998] IRLR 628).[85]When considering reasonable adjustments, we took into account the EHRC Code of Practice on Employment and the passage emphasised by the respondent’s counsel in her submission document.[86]When considering the discrimination and harassment claims we are required to apply the burden of proof. 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”.[87]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 the act of unlawful discrimination. That is sometimes known as the prima facie case. At that 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.[88]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.[89]With regard to memory, the respondent’s counsel quoted the following passage from the Judgment of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560: “While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose:(1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and(2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.”[90]We have restated some of what was said in the respondent’s written submission on the law, but not all of it. We considered all that was said but have not found it necessary to reproduce all that was said or to list all of the cases referred to. In her submissions, the claimant’s counsel did not disagree with anything said in the respondent’s written submission on the law, save to (as we have highlighted) note the omission of Archibald from the cases highlighted. Conclusions – applying the Law to the Facts[91]We did not consider the issues in the same order as they were included in the list of issues. In common with the approach taken by both counsel, we considered the claim for breach of the duty to make reasonable adjustments first, followed by the discrimination arising from disability claim, before determining the harassment claim.[92]In her submissions, the respondent’s counsel addressed the length of time since the events occurred and reminded us of what was said in Gestmin SGPS SA about memory. We accepted what she said about memory generally. In our decision, as we have explained, we placed particular reliance upon the contemporaneous records, or near-contemporaneous records, of what was said. However, we did not take the approach contended for by the respondent’s counsel in two ways proposed. The respondent’s counsel submitted that we should make decisions about the claimant’s credibility based upon how she gave evidence during the Tribunal hearing. The claimant’s counsel warned us not to do so, highlighting the claimant’s disability, short-term memory issues and requirement for time to answer questions (particularly in stressful circumstances). We did not take into account at all, in determining the claimant’s credibility, the way in which she gave evidence or answered questions in the Tribunal. The respondent’s counsel also asked us to take into account what was said in a previous Judgment and case management order in this case about the claimant’s credibility and the impact her disability has upon her. We did not do so. We relied upon the evidence which we heard to determine the issues and what we found occurred.[93]Issue 4 set out the claimant’s claim for breach of the duty to make reasonable adjustments. Issue 4.1 asked about the respondent’s knowledge (or imputed knowledge) of the claimant’s disability. In submissions the parties addressed three separate occasions when knowledge or imputed knowledge was contended to have existed/arisen.[94]The first occasion was in the telephone interview on 17 November 2020 between the claimant and Mrs Irving. There was a direct conflict of evidence between the claimant and Mrs Irving about whether the claimant mentioned her disability during that call. We noted what was said in the only contemporaneous record (195) was that the claimant had been asked about adjustments and had said that none was required. In the timeline email of 14 January 2021 (230), which appeared to record Mrs Irving’s recollection shortly after the relevant events, that detailed a slightly lengthier conversation, but not one which involved the claimant telling Mrs Irving about her disability. In her email of 7 December 2020, the claimant made reference to having told the respondent about her disability. However, very importantly in our view, in the email exchange between Mrs Irving and the claimant which followed on 9 December (210), Mrs Irving said that the claimant had not told her about her disability and the claimant responded but did not assert that she had done (as we would have expected her to have done if that was the case). In her lengthy email account of 18 December 2020, the claimant recorded telling Mrs Irving about her disability.[95]As a result of what was said in the contemporaneous or near contemporaneous records, as we have explained, we preferred Mrs Irving’s recollection of the telephone call to that of the claimant. We found that that the claimant did not tell Mrs Irving about her disability (in any way) in that telephone call. As we have said, that is supported by the note made at the time of the call and the exchange of emails on 9 December 2020 (210).[96]We then needed to decide whether the respondent had imputed knowledge from what was said. We found that the claimant said that she did not require any reasonable adjustments, following a brief conversation about what adjustments might be. We did not find that the respondent could reasonably have been expected to have known that the claimant had a disability, as a result of what was said.[97]We would observe that it was perhaps unfortunate that we were not provided with any policy operated by the respondent to address or avoid disability discrimination. It was surprising that the respondent did not undertake some form of equal opportunities monitoring or questionnaire in advance of an interview (or, at least, it was not provided to us). It obviously would have been better if the claimant had been given a clearer opportunity to provide a statement of any disability and information about it in advance of any interview. The respondent was certainly not proactive in finding out such information. However, the fact that they were not, did not mean that the respondent had imputed knowledge of disability at the time of the first interview.[98]The second occasion which we needed to consider for issue 4.1 was the second interview on 24 November 2020 undertaken by Zoom with Ms Naughton and Mrs Boylan. There was a dispute about exactly what was said by the claimant when answering the fifth set question. The contemporaneous notes recorded the claimant referring to a learning difficulty. That was consistent with the evidence of Ms Naughton and Mrs Boylan and with what was said by the claimant in her witness statement. The claimant’s evidence at this hearing was that she used the phrases learning difficulty and learning disability interchangeably. We found that the claimant used the words learning difficulty, consistent with the note taken at the time (and the evidence).[99]We therefore needed to decide whether the respondent knew that the claimant had the disability from the point in the second interview when the claimant referred to learning difficulty. We did not find that decision altogether straightforward. We accepted Mrs Boylan’s evidence that learning difficulty can cover both a learning disability and something which is not a disability. From the claimant’s point of view, we accepted that she was describing her disability. She was using language consistent with the report written about her impairment. We found, on balance, that the respondent did know about the claimant’s disability at the point the claimant referred to her learning difficulty in the second interview. In any event, we would have found that the respondent could reasonably have been expected to know about it from what the claimant said in the interview.[100]The third occasion about which we heard submissions was the telephone conversation between the claimant and Mrs Boylan on 25 November 2020. The claimant said that she spoke about her learning difficulty or disability in that call. Mrs Boylan’s evidence, as we have explained, was that it was not her belief that it was mentioned in the telephone call. We had no contemporaneous record of the call and notably Mrs Boylan made no notes at the time. The record made closest to the time of the events was the claimant’s account in her email of 18 December (213) in which she said she did tell Mrs Boylan in that call. We noted that the call was not a straightforward call with clear questions and answers, it was Mrs Boylan’s evidence that the claimant interrupted her when she was speaking during the call. On balance and based upon the record made closest to the time, the fact that Mrs Boylan’s evidence about this was more equivocal on this than other matters, and the claimant’s evidence, we found that the claimant did refer to her learning difficulty or disability in the call. On the same basis as for the second interview, we found that the respondent did know about the claimant’s disability in the call on 25 November (and, in any event, could reasonably be expected to have known).[101]Issue 4.2 set out two potential PCPs (a PCP is a provision, criterion or practice) and we were asked to decide whether the respondent had those PCPs. The first PCP relied upon (issue 4.2.1) was asking questions at interview without prior notification of what the questions were. There was no dispute that was a PCP which the respondent had.[102]The second alleged PCP relied upon (issue 4.2.2) was expecting responses to questions posed at interview without affording a period of time for a considered response. That PCP was in dispute. We have already set out the evidence which we heard about the conduct of the second interview. We found Mrs Boylan to be a genuine and credible witness, and we accepted what she said about the conduct of the second interview. There was in practice no evidence that the claimant was rushed to provide answers. She was given time to do so. We did not find that the respondent had the second PCP relied upon (4.2.2).[103]Issue 4.3 was whether the PCP put the claimant at a substantial disadvantage compared to someone without her disability, in that she was unable to process the question asked to enable her to provide a sufficient response in the time expected. We considered that only for the PCP set out at issue 4.2.1, in the light of what we had decided. The respondent’s counsel referred to the detail of the reports about the claimant’s disability (and the first report in particular) and contended that the claimant was not put at the substantial disadvantage contended. The claimant’s counsel also referred to parts of the reports and highlighted what the claimant had said in her submission document for the disability hearing (278). The report writers did not explicitly address a need for questions to be provided in advance of an interview (or exam) although they did explain that the claimant would need extra time for the preparation of tasks or to conduct tasks and give answers within interviews or assessments. In the light of what was said in the reports and the evidence provided by the claimant, we found that the claimant was put at a substantial disadvantage when compared to someone without a disability, by needing to answer questions in an interview without any advance notice of what those questions would be.[104]Issue 4.4 was, like issue 4.1, about knowledge. However, what we needed to determine for issue 4.4 was whether the respondent knew, or could reasonably be expected to know, that the claimant was likely to be placed at the disadvantage relied upon and found. From what the claimant said to Ms Naughton and Mrs Boylan in the second interview on 24 November, we did not find that the respondent knew that the claimant was likely to be placed at that disadvantage. We also did not find that the respondent could reasonably have been expected to know, based upon what the claimant said in the context in which she said it. The claimant referred to her disability in the process of providing an answer to a question and giving an example of addressing something which she had found challenging. The answer given did not mean that the respondent knew that she was at a disadvantage by not being given questions in advance of the interview. In the context of the answer given, the respondent could also not be reasonably expected to have known. We noted that Mrs Boylan relied in part on the first interview and what had been recorded on the note about adjustments required. She was able to do so. When asked about this and a hypothetical revelation of dyslexia in an interview, Mrs Boylan provided an answer which identified a nuanced understanding of the difference between a candidate addressing something in the interview which resulted in a disadvantage in the interview, and providing an answer to a question which addressed the question being asked (but included a reference to a disability). The respondent was not expected to know that the claimant was likely to be placed at the disadvantage, as a result of what was said.[105]In the light of the decisions that we reached on PCP 4.2.2 and the knowledge of disadvantage for issue 4.4, the claimant’s claim for breach of the duty to make reasonable adjustments could not succeed. We did however consider issue 4.5 in any event, even though we did not need to do so.[106]The fact that the respondent only became aware of the claimant’s disability during the claimant answering the fifth set question of six in the second interview, meant that it would have already been too late for the reasonable adjustment sought to have been made. That reasonable adjustment would have required knowledge in advance of the second interview. When we highlighted that to the claimant’s counsel, she referred to the potential adjustment of restarting the interview with different questions (which could also be asked of the other candidate). However, that was not the reasonable adjustment contended for or set out in the list of issues which had been identified as the issues we needed to determine. It was also not something put to the respondent’s witnesses.[107]In terms of the interview and what it was seeking to achieve, we accepted the respondent’s evidence that the questions asked were intended to establish the candidate’s understanding and knowledge of the type of role for which she was applying. We noted that there was some reliance placed upon patient safety in the need to assess an applicant’s experience. We accepted that undertaking an interview with standard questions is a normal approach undertaken by many employers to determine whether candidates have the experience required and the ability to do a job, and to determine who the best candidate is. In the circumstances of this case, we would not have found that giving the claimant the questions to be asked in advance of the interview, would have been a reasonable adjustment which the respondent was legally required to make. We made that decision in part based upon the evidence of the respondent’s witnesses about the need to assess the candidate’s experience and knowledge of the work required for the role, and the respondent’s witnesses evidence that giving the questions in advance would have undermined their ability to assess that knowledge/experience as a candidate’s answer could then have simply reflected their ability to undertake an internet search of what was required.[108]We would add one other thing in relation to the arguments which we heard about issue 4.5. In her submissions, the respondent’s counsel referred to the lack of a level playing field if questions were provided in advance. The claimant’s counsel emphasised that the duty to make reasonable adjustments can require an adjustment which places the person with the disability at an advantage. We agreed with the claimant’s counsel’s submission, and we would not have found what was sought to have not been reasonable, based upon the fact that it gave the claimant a potential advantage over other candidates. As the claimant herself emphasised, it is about offsetting a disadvantage which she otherwise suffers as a result of her disability.[109]We did not ultimately need to decide issue 4.11, which was the chance that the claimant would not have been appointed in any event (if she had succeeded in her claim). There must have been some chance that she would not have been appointed because the respondent’s interviewers decided that she did not have the experience to fulfil the role. The claimant did not demonstrate that she did. Her CV notably lacked any recorded pre-assessment role experience (as distinct from preoperative experience). It was her evidence that she had some experience whilst working for NHS Professionals. The claimant had only limited post qualification experience as a nurse. We cannot in practice determine what the chances of not being appointed would have been in the light of our other findings, but we would have significantly reduced any award to reflect a high percentage chance that she would not have been appointed in any event, had we needed to do so.[110]Issue three in the list of issues set out the issues to be determined in the claimant’s claim for discrimination arising from disability. The first issue for that claim (issue 3.1) was whether the respondent knew, or could reasonably have been expected to know, that the claimant had the disability (and from what date)? That reflected issue 4.1 and our findings on issue 4.1 also applied to issue 3.1.[111]Issue 3.2 set out what it was that the claimant said was the unfavourable treatment by the respondent. That was that, at the interview on 24 November, the claimant was required to answer questions about which she had no prior notice and for which she was not given additional time to answer. That issue raises some considerations which we have already addressed when determining issue 4.2. We found that the claimant was given the time needed to answer questions in the second interview and was not hurried or rushed. However, it was not in dispute, that the claimant was required to answer questions about which she had no prior notice.[112]Issue 3.2.1 contained within it two different things which could be said to be unfavourable treatment. The broader paragraph and what was said at the start, referred to the requirement to answer questions without prior notice. We did not find that in and of itself was unfavourable treatment. It was the respondent’s standard approach to all interviews. In her submissions, the respondent’s counsel emphasised the case of Williams. What the claimant was seeking was more favourable treatment and we would not have found that to be unfavourable. However, the last sentence of 3.2.1 addressed the fact that the claimant was not assessed as being suitable for the job. That clearly and obviously was unfavourable treatment. Not being assessed as able to do a job for which a candidate had applied, must be unfavourable. In that way, we found that the claimant was treated unfavourably.[113]Issue 3.3 asked whether the following arose in consequence of the claimant’s disability: a need for time to process information before being required to provide answers. Based upon the reports provided, we found that the thing relied upon arose in consequence of the claimant’s disability.[114]Issue 3.4 asked the first question which applies when applying the burden of proof to the discrimination arising from disability claim, namely whether the claimant had proven facts from which we could conclude that the unfavourable treatment was because of the thing arising in consequence of the disability? In answering that question, we focussed in particular upon the reasons recorded at the time for the claimant not being successful. Those were recorded at the end of the form (202) as written by Mrs Boylan. The first reason given by the respondent was that the claimant was unable to elaborate on answers without significant prompting. Applying the burden of proof, we found that the first reason for the decision made showed the prima facie case required to show that the unfavourable treatment (assessing the claimant as not being able to do the job) was because of the claimant’s need for time to process information before being required to provide answers.[115]Issue 3.5 asked the question which applies as the second part of the application of the burden of proof (where the prima facie case has been demonstrated), namely whether the respondent could show that there had been no unfavourable treatment because of something arising in consequence of disability? For that decision, we focussed upon the respondent’s witnesses’ evidence about why they made the decision and the two reasons given at the end of the form (202). The second reason was that the claimant had (in view of the respondent’s interviewers) limited preoperative experience, very little knowledge around the role of a preoperative nurse, and (they said) the questions seemed to be answered around ward nursing and not preoperative assessment. It was Mrs Boylan’s evidence that the two reasons on the form needed to be read together. The claimant’s stated inability to elaborate on answers without prompting was because she could not give preoperative assessment-based answers rather than because of an innate inability to answer. We noted that the claimant herself described the second interview as a pleasant experience, both close to the time in her email of 18 December (213) and in her evidence to us. We accepted the evidence of Mrs Boylan and Ms Naughton about their view of the claimant’s experience. That was set out in clear terms at the time in Mrs Boylan’s email of 27 November (204). It was also consistent with Mrs Boylan’s view that the claimant could be successful in another role as stated in the same email sent at around the time of the interview. On that basis, we found that the respondent had shown that the decision made was in no sense whatsoever because of the something arising in consequence of the claimant’s disability. The respondent’s view was that the claimant did not have the experience required and that was not because of any inability to answer questions in the interview.[116]As a result of our decision on issue 3.5, we did not need to go on and consider the other issues for the discrimination arising from disability claim. However, we did consider issues 3.6 and 3.7 in any event, which asked whether the treatment was a proportionate means of achieving a legitimate aim? The aims relied upon by the respondent had been set out at paragraph 25 of its amended grounds of response (65).[117]The aim relied upon was to provide a fair, consistent and non-discriminatory assessment process for all applicants. We found that to be a legitimate aim. Whilst the claimant contended that it was not a legitimate aim, we could see no basis for finding that it was not.[118]The key question for justification was whether the approach was a proportionate means of achieving a legitimate aim. The respondent in its pleading said that the interview process was a proportionate means of achieving the stated aim and placed some reliance upon the question asked of candidates about reasonable adjustments in the first interview. In part, we have already addressed similar issues when determining the reasonable adjustments claim. We found that the approach was proportionate in circumstances where the claimant did not inform the respondent of her disability until the fifth question of six in the second interview and did so in the way we have explained. More broadly, for the reasons we have already given, we found that an interview process undertaken without providing questions in advance was a proportionate means of achieving the aim relied upon.[119]The final complaint which we considered was the harassment related to disability complaint (issue two). That was alleged to have arisen from what Mrs Boylan said to the claimant in the telephone call of 25 November 2020, when providing feedback on the second interview.[120]Issue 2.2 asked whether that was unwanted conduct? The respondent’s counsel accepted that if Mrs Boylan was abrupt and patronising that would be unwanted (whilst denying that she was). More generally, the claimant herself sought feedback and therefore being given the reason why she was unsuccessful was not of itself unwanted. It was notable from the account of the call recorded by the claimant in her email of 18 December (220) that the claimant recorded that she was told at the start of the call that she had interviewed well, had a great personality, and would be an asset to the respondent in the future. The call became more contentious at the point when the claimant was told that she was believed to not have the experience required for the job, which the claimant disputed and contested.[121]In broad terms, someone being told why they were unsuccessful in an interview will always be unwanted, where that candidate disagrees. For this call, we did not find that Mrs Boylan was abrupt. We accepted her evidence that she was not abrupt and that she remained professional throughout the call. We did accept that the call became more contentious when there was a disagreement about experience. We have not made a finding on the allegation that Mrs Boylan was patronising as being patronising is something which is difficult to determine or define.[122]Issue 2.3 asked whether this related to disability? We did not find that Mrs Boylan’s manner or approach to the call was related to disability. The feedback she provided arose from the interview and were the reasons why the claimant had not been successful. Whilst the claimant may disagree with those reasons, that was not related to disability. Even if Mrs Boylan’s manner became stronger in the course of the feedback call, we found that would have been because the claimant was disagreeing with the reasons given and contesting what was said about experience. That was not related to disability. Even if part of the conversation was about taking time to answer questions, we did not find that Mrs Boylan’s manner was related to disability. It was related to the contentious part of the call.[123]Issue 2.4 asked whether the conduct had the required purpose? That was not in fact a case pursued by the claimant (or her representative) at the hearing. The claimant’s representative acknowledged that was not put to Mrs Irving.[124]Issue 2.5 asked whether the conduct had the required effect and, if it did, whether it was reasonable for the conduct to have the required effect?[125]It was the claimant’s evidence that she felt humiliated by what was said to her in the call on 25 November. We accepted her evidence that was how she felt. That was clear from what she wrote shortly afterwards on 18 December. We accepted that the call in general, and what was said, did have the required effect.[126]The second part of issue 2.5 was whether it was reasonable for it to have had the requisite effect, that is of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. In the section on the law we have highlighted that it is important that we do not encourage a culture of hypersensitivity or impose legal liability for what has been described as every unfortunate phrase. The fact that the claimant felt that Mrs Boylan was dismissive of her challenges to the reasons, did not amount to what was legally required. We considered it important that organisations feel able to provide genuine feedback on unsuccessful interviews, without needing to be unduly concerned that adverse feedback (such as about a candidate’s perceived experience) may amount to harassment. We have already recorded that we accepted Mrs Boylan’s evidence that she was not abrupt in the call and that she remained professional throughout. We also noted what the claimant herself said about the call in her witness statement. We did not find that what occurred was conduct for which it was reasonable for it have the effect required (that is of violating dignity or creating a humiliating etc. environment for the claimant).
Summary
[127]For the reasons explained above, we have not found for the claimant in respect of any of her complaints. Employment Judge Phil Allen 1 September 2025