Miss D Foley v The Chief Constable of Merseyside Police: 2402694/2024 Miss D Foley v The Chief Constable of Merseyside Police: 2402694/2024

EMPLOYMENT TRIBUNALS

Case No 2402694/2024

Between

Miss D FoleyClaimant

The Chief Constable of Merseyside PoliceRespondent

Before

Employment Judge Barker

Self-represented for claimant

Mr Tinkler (instructed by counsel) for respondent

Date 26 May 2026

JUDGMENT

[1]The complaints of direct sex discrimination are not well-founded and are dismissed.

[2]The complaints of harassment related to sex are not well-founded and are dismissed.

[3]The complaint of unfair dismissal is not well-founded. The claimant was not unfairly dismissed.

[4]The complaints of less-favourable treatment on the basis of part-time worker status are not well-founded and are dismissed.

[5]The complaint of unauthorised deductions from wages is not well-founded. The claimant was not able to say when or how the wages claimed for were properly payable.

REASONS

[1]The claimant started work at the respondent as a personnel assistant in 2003. She was latterly employed as a Child Safeguarding Officer but was removed from that post in September 2021. She is a civilian employee and not a police officer. She was dismissed by reason of capability due to absence on 11 December 2023 and given three months’ pay in lieu of notice.

[2]ACAS Early Conciliation took place from 21 February 2024 to 3 April 2024. The claim form was sent to the Tribunal on 3 May 2024.

[3]This case has had a number of case management hearings, some of which have been lengthy, and the claimant has had help from the judges who have conducted these hearings in setting out what her case is. There were case management hearings before Employment Judge Aspinall on 4 October 2024 and 22 November 2024 (which was a public preliminary hearing and lasted a day), before Employment Judge Ainscough on 10 April 2025 and Employment Judge Dunlop on 11 December 2025 (which was scheduled as a dispute resolution appointment but had to be converted to a case management hearing as the claimant had not written her witness statement.)

[4]The records of the hearings on 4 October and 22 November 2024 note that the claims were discussed at length. The Tribunal started making a list of the claimant’s allegations on 4 October but ran out of time. An explanation was given to the claimant about what her claims appeared to be from her narrative claim form, and she was given the time between the hearings to think about what legal claims she may be bringing.

[5]At the hearing on 22 November 2024, which lasted for a day, the judge recorded that the claimant had not done was she was asked and had not given any thought since the last hearing about what her claims might be. Much of the day appears to have been spent clarifying the claims. The prospects of success of those claims were discussed. The respondent applied for strike out and deposit orders, and the unfair dismissal claim was subject to a deposit order which the claimant subsequently paid.

[6]There was another case management hearing on 10 April 2025 to try to manage the case and clarify the claims. The list of the claimant’s factual allegations was clarified.

[7]Over the course of the two case management hearings that she conducted, Employment Judge Aspinall drew up a list of complaints and issues with the agreement of the parties and a schedule of factual allegations and provided these in writing with the case management orders. The parties were given 14 days to correct them if they did not reflect their discussion. The claimant did not make any attempt to correct them within the time allowed to do so. The list does not include any complaint of indirect discrimination. Indirect discrimination was originally discussed with Employment Judge Aspinall, but it was not in the list of issues, and the claimant did not ask for it to be added in.

[8]Several times during this hearing, the claimant raised with me whether she had an indirect discrimination claim. This was also referred to by the respondent’s counsel, because the claimant kept referring to the fact that she was discriminated against as a woman “with childcare responsibilities”. We had several discussions about this. I reminded the claimant that this had been discussed before and that it was not in the list of issues for me to decide. I also reminded her that I could explain the law to her, but I could not give her legal advice as to whether she should include this claim or not. I had to remain impartial. I told her that it did not appear to me that at any point she was alleging that she was the victim of indirect sex discrimination; her claim was not that the respondent’s policies relating to part time working, flexible working or home working discriminated against women generally – indeed, she accepts that there are a number of men and women working for the respondent who work part-time, flexibly and from home.

[9]Her claim is not that the respondent is not generally flexible or accommodating, but that the respondent did not act flexibly enough for her personally, because of her particular needs as a parent of four children. In effect, her case is that she needs more flexibility than other people, male and female, because of the nature of her family. The claimant continued to raise the issue that she was discriminated against because of her “childcare responsibilities”. As she was reminded, there is no such protected characteristic in the Equality Act 2010.

[10]There was also the issue of the lateness of her raising the issue. The respondent had not presented any evidence, or brought any witnesses, in relation to any indirect discrimination claim. Neither had the claimant. I told the claimant that if she wanted to add an indirect sex discrimination claim to the case, she could make an application to do so, and the respondent would have a right of reply to that application, and I would make a decision about it. She never made such an application, but the matter continued to be raised with me by her periodically during the evidence. However, it was not an issue for me to decide, and I have not considered it further in this judgment.

[11]Following the case management hearing before Employment Judge Ainscough, there remained issues with the claimant’s compliance with case management orders, and the dispute resolution appointment scheduled for 11 December 2025 was converted to a case management hearing by Employment Judge Dunlop to try to resolve the issues that remained and to try to ensure that the case could continue to this listed hearing.

[12]The claimant informed the Tribunal that she needed the final hearing to be postponed. She mentioned that her ex-husband had recently died and that this had impacted on her preparation, and she was also concerned that the final hearing may clash with the date of his funeral. Employment Judge Dunlop said that if the hearing did clash on one of the days with the date of the funeral, the Tribunal would not sit on that day so that the claimant could go to the funeral. Employment Judge Dunlop considered both sides’ arguments about the postponement application and refused it. She noted said: “The application was made very late and set against a backdrop of Ms Foley failing to meet deadlines, particularly in respect of witness statements….I formed the view that Ms Foley wanted a delay to ensure that her case was prepared to the best standard, and that she was able to present it to the best standard, but that she did not need a delay in order to be able to participate and have a fair trial.”

[13]The claimant was given some guidance by EJ Dunlop about writing her witness statement. She was told that it must be done. She was told that she could use the long statement of allegations as the basis of her statement and flesh out the schedule and add factual details. She was warned that if she did not produce a witness statement, the claim could be struck out.

[14]At the start of this hearing, I noted that the claimant’s witness statement was very short given the length of the list of allegations. What she had apparently done was to use the list of issues (not the schedule of allegations) as the basis of her statement. Her witness statement was effectively the list of legal complaints with some short factual comments around it. This made the respondent’s job of questioning the claimant’s evidence very difficult and what effectively happened was that the claimant’s evidence came out while she was cross-examining the respondent’s witnesses, not while she herself was under oath, as she would preface her questions with statements about her version of events. It also meant that her evidence, such as it was, was in part not given under oath, and was given with the benefit of her notes and files in front of her. This has made the Tribunal’s job of assessing the claimant’s complaints much more difficult and time-consuming. The claimant’s closing statement to the Tribunal contained the only written record of her evidence and submissions to the Tribunal. It was not tested under oath or under cross-examination, but where it provides a summary of the claimant’s assertions in this case, I have used it as a guide to her allegations.

[15]The claimant’s other witnesses did not need to be called to give evidence, as neither the respondent nor the Tribunal had questions for them. Their evidence has been considered but as it did not go directly to the issues that the Tribunal had to decide, it was not directly relevant.

[16]Employment Judge Dunlop had discussed privacy orders with the claimant, and the claimant had applied for the final hearing to be in private and for a restricted reporting order to be made. She was concerned to protect the identity and whereabouts of her children. Employment Judge Dunlop refused her application at the case management hearing but said that this could be discussed with the Tribunal at the final hearing. She gave some information to the claimant about how the identity and location of her family could be safeguarded. No further application for privacy was made, and those measures have been adopted by me in this judgment, which includes not referring to the claimant’s family by name, or disclosing where they live or which schools they attend.

[17]In terms of what happened during this hearing, the final hearing, day 1 was used for the Tribunal to read the documents. Day 2, 3 and 4 were used to hear evidence. By the end of day 4, it was clear that the evidence would be finished and all witnesses cross-examined by lunchtime on day 5. In the afternoon of day 4, the Tribunal discussed closing statements with the claimant. She was told that the respondent would make a closing statement lasting about 30 minutes and would go first, so that she would be able to hear what they said before she made hers. She would have the opportunity to ask for clarification of any legal points made and would not be expected to make any legal submissions in reply, but she of course was free to if she wanted to. She was told that a closing statement did not require her to go through all the evidence again. She was told that there was no requirement that she make a closing statement and that many parties in a case such as this only speak for a short period of time. She was told that she was not allowed to refer to anything new, and that the closing statement was simply a party’s opportunity to sum up why the Tribunal should find in her favour. It was suggested that after the respondent’s closing statement was heard, she would have a break of an hour or so to think about what she wanted to say. She could then make her statement before the end of the hearing day on day 5.

[18]On day 5 itself, the evidence concluded as had been anticipated and the respondent’s counsel made his closing statement within the 30 minutes that he had indicated it would last. The claimant however told me that she did not think that she would be able to make her closing statement that afternoon. I told her that she would be given an hour and a half to think about what she wanted to say, and that we would come back into the hearing room at 3.50pm to hear from her. However, if she was nearly finished but not quite ready at 3.50pm, she could let the clerk know and I would give her until 4pm to get ready. I explained that if it could be avoided that the parties came back on day 6, that would help me, as I could start deliberating on the judgment on day 6, and this would speed up when the decision would be sent out. It was also, I said, not reasonable to have the respondent have to pay for another day of their barrister’s time to come back on Monday for 30 minutes to hear her closing statement, given that she has had time to think about it since day 4, and was being given 90 minutes to think about what she wanted to say this afternoon, as well as lots of guidance from the Tribunal.

[19]However, by 3.40pm the claimant had already found the clerk and told her that she would definitely not be ready to give her closing statement that afternoon, even by 4pm, and she wanted the weekend to think about it. I spoke to the parties and expressed my frustration and concern about this. This was of course at the end of a long litigation process punctuated throughout by the claimant failing to do what the Tribunal had told her to do. I asked the claimant why, in the circumstances, she was not ready. She told me that she was not “comfortable” with giving her statement that afternoon. She wanted to make sure it was accurate. She wanted the Tribunal to come back on Monday for her to do it then.

[20]I explained to the claimant that her comfort was not the primary consideration in this matter, and that I would not necessarily have expected her to feel comfortable giving her statement, as the parties were, after all, in an adversarial situation. The extra Tribunal time of another hearing day, and the cost to the respondent, were also considerations. It was also disproportionate for her to need another two days to think about this when she was asked on day 4 to do so. The accuracy of her submissions was also not the main concern, as I had been paying careful attention to the evidence and had made careful notes. I had already told the claimant that the closing statement was not meant to be the opportunity to go back over all the evidence again. I said that I did not think that it was fair to expect the respondent to have to come back on day 6, in the circumstances, but they of course have a right of reply to the claimant’s statement and so would have to be able to hear it.

[21]Instead, I proposed that the claimant be allowed to make written closing submissions by 10am on what was supposed to be day 6, Monday 12 January. The Tribunal would not sit that day but could sit four days later on 16 January instead and would use that date as day 6 instead. That would allow for a short, written response from the respondent on 15 January, and would avoid the respondent incurring further counsel’s fees. The claimant’s statement was to be no longer than 4 pages as this was the equivalent of Mr Tinkler’s closing submissions. I noted that it was fortunate that I was able to swap the dates around in this way, and it was only a matter of coincidence that I was able to do so. This approach was agreed by the parties. The deposit order

[22]On 22 November 2024 when the deposit order was imposed, the judge explained the consequences the order to the claimant, including that the respondent may apply for its costs of defending the unfair dismissal claim and that she may be made to pay those costs, if the Tribunal agreed with the judge that the dismissal was not unfair for the same reasons as her.

[23]EJ Aspinall’s reasons for imposing the deposit order were that the claimant has little reasonable prospect of establishing that the sole or principal reason for her dismissal was not her absence. In the deposit order, she recorded the following: “The claimant says the reason for dismissal related to her part time / term time / work from home working pattern. She says she was dismissed because the respondent resented her working pattern which was necessitated by her childcare responsibilities. She says that the respondent engineered (by refusing to allow her to work from home) a situation in which she was forced to be absent from work and then used the absence, fictitiously, against her. The Tribunal finds that the claimant has little reasonable prospect of establishing that the principal reason was not her absence because3.1 Of the extent of the absence from 2019 and the extent of historic attendance issues going back to 2003 and because

3.2 of the efforts of the respondent in its letters of dated 12th, and 19th April 2023, 29 June 2023 and 12 July 2023, to get her to go back to work and because

3.3 the decision maker on dismissal (Assistant Chief Constable Jennifer Wilson) was not the same person who refused the claimant’s request to work from home in March and September. The appeal hearing chairperson (Sue McTaggart) is not alleged by the claimant to have had any involvement in decisions about the claimant’s working pattern”

[24]The claimant was asked again by me at the start of this hearing (on 6 January 2026) whether she had given any thought to whether she wanted to continue with her unfair dismissal claim, given the deposit order, now that she knew what the respondent’s evidence was. I reminded her of the possible costs consequences should she lose her unfair dismissal claim. That is, if the Tribunal decides the unfair dismissal claim in favour of the respondent for substantially the same reasons given in Employment Judge Aspinall’s deposit order of 22 November 2024 the claimant will be treated as having acted unreasonably in continuing with the unfair dismissal claim for the purpose of making a costs order unless the contrary is shown. I reminded her that the Tribunal can look to award costs based on her income, any savings she has, or any assets she owns. I reminded her that she was not obliged to carry on with any of her claims, including the unfair dismissal claim, if she had changed her mind. If this was the case, she would be able to withdraw them by telling me. She did not want to do so.

[25]She complains to me (during the hearing and in her written closing submissions) that the respondent’s legal representatives have been “bullying me to drop the case by threatening me that they were going to take my house by applying for costs”. It is very unfortunate that the claimant has not listened to what Employment Judge Aspinall and I said to her about the same issue. It is not an act of bullying for the respondent’s legal representatives to warn her of the possible serious consequences of her actions. Both Employment Judge Aspinall and I have done the same. It is possible that an order for costs might affect assets such as her house. Having been warned early on by Employment Judge Aspinall as to why her unfair dismissal claim was likely to fail, it is unreasonable to make allegations of bullying against those from the respondent’s side who (as part of their professional responsibilities to an unrepresented party) have a duty to bring this to her attention. The Issues for the Tribunal to decide

[26]Her claims are for unfair dismissal, less favourable treatment due to part-time worker status, direct sex discrimination and harassment on the grounds of sex. She has also brought a claim for unlawful deductions from wages. As discussed above, the claimant also raised the issue of indirect discrimination on the grounds of sex but did not make an application to add this to her claim. She also appears to wish to complain about discrimination against those with childcare responsibilities, but this is not a protected characteristic of its own under the Equality Act 2010.

[27]As part of the claim for unlawful deductions from wages, the claimant is required to say what the total amount of wages was that should have been paid, and what the total amount of the deduction was and when it was properly payable. The respondent pointed out that although the claimant has said that a deduction of £532 was made from her wages incorrectly, she has not been able to show when that unlawful deduction was made. We spent quite some time during the hearing trying to identify from evidence in the bundle, including the claimant’s wage slips, when this deduction was made, but the claimant was not able to say with any clarity or certainty and the Tribunal was unable to say what might have happened, without any further information from her.

[28]The respondent identified a potentially serious issue with the claimant’s part-time worker discrimination claim, in that the claimant had not (for all but one of her complaints) identified an actual comparator. She relied for the most part on a hypothetical comparator. This had not been picked up as an issue at previous case management hearings. The respondent referred to the case of Carl v University of Sheffield

[2009] ICR 1286

as authority for the principle that a hypothetical comparator cannot be used in cases of part-time worker discrimination, unlike in sex discrimination cases where a hypothetical comparator could be used.

[29]The Tribunal noted that this was an argument that the respondent could rely on in relation to the claimant’s claims. There was a possible, albeit weaker, counterargument that a hypothetical comparator was able to be used; it was not supported by current case law, but it was one that could be considered on behalf of the claimant. The claimant was also asked who her actual comparators might be in relation to each of the allegations of part-time worker discrimination as she was giving her evidence, so that any actual comparators might be considered. Had she been able to identify any, the Tribunal would have given the respondent the opportunity to produce further evidence in relation to this new information. However, the claimant was not able to identify any actual comparators and so further evidence from the respondent was not needed.

[30]However, as a result of the respondent’s counsel making this point about Carl v University of Sheffield the claimant has alleged in her closing statement once again that she has been “bullied” by the respondent’s legal representative and threatened with costs. The fact that the respondent has made the claimant aware of their view of the weakness of her case is not bullying and it is regrettable that the claimant has made such allegations, amounting to allegations of professional misconduct, against the respondent and its representatives.

Findings of Fact

[31]The claimant began work for the respondent in January 2003. She was initially employed as a Grade D Domestic Abuse Office Manager and moved in March 2019 to Grade D Safeguarding Officer in the Initial Child Protection Conference in the Vulnerable Persons Unit (“VPU”), although she did not begin work in that team until September 2019 as she was absent on maternity leave. Attendance history

[32]Her record of attendance at work during the sixteen-year period from 2007 until her dismissal on 11 December 2023 was punctuated by very high levels of absence and the respondent’s attempts to manage those high levels of absence.

[33]The claimant was put on an “action plan” for her attendance in 2007, another action plan in 2009 (which the claimant refused to sign), a 12-month written warning in May 2016 following a capability process, and a final written warning in March 2017 following a further capability process to remain on file for two years. The final written warning expired in March 2019.

[34]By June 2020 the claimant was put on a “support plan” due to her levels of absence. At the end of 2020, the respondent wrote to the claimant to bring to her attention that they had really serious concerns about her attendance.

[35]Further issues arose with the claimant’s attendance, and she was subsequently taken through a capability process once more in early 2021. The evidence presented by the respondent to the capability hearing was that from when she returned to her safeguarding officer role full-time in September 2019, she was only able to complete 7 conferences in the VPU in the period of October and November 2019, and none thereafter. The respondent reminded the claimant that she had been in work for only 32 days in 2019 and for only 30 days in 2020.

[36]Furthermore, she failed to complete work required of her, failed to attend meetings with her manager and failed to attend occupational health meetings. Her leave was reported by the respondent to be caused by a reported combination of childcare issues and “home maintenance” issues. She also said that she had issues with IT and could not get any work done as her laptop “needed work doing on it.” Her absence was a mixture of parental leave for childcare issues, dependency leave for other family issues, and annual leave. However, in connection with this she is reported to have failed to notify her manager of her availability to work and thereby breached the respondent’s attendance management policy. She failed to properly submit appellations for parental leave and relied on managers to do this for her.

[37]The respondent reported that the impact on her colleagues in the team was significant, with the other officers having to spread out the claimant’s workload between themselves to cover the work that needed doing. It bears repeating that the nature of the work being done by officers such as the claimant in as a Safeguarding Officer in the Initial Child Protection Conference team was of the utmost importance and sensitivity, involving as it did the protection of vulnerable children.

[38]The outcome of the capability process was given to the claimant in a letter dated 18 April 2021. This was a written caution to last for 12 months. The claimant was warned that any further attendance concerns may lead to her dismissal. She accepted in cross-examination that these concerns of the respondent were very serious. Removal from safeguarding role

[39]In August 2021, Children’s Services from Knowsley Borough Council responded to an alleged incident of “emotional abuse” alleged to have involved the claimant and her partner against one of her adopted children. In a report dated 10 August 2021 to Detective Chief Superintendent Kameen of the respondent, the claimant’s manager Mr Briscoe expressed his serious concerns about the claimant’s suitability to work in the IPIC team because of reports shared by Social Services. I accept Mr Briscoe’s evidence that he considered that the way in which the claimant recounted and viewed the domestic situation with her children was worrying, and he was concerned about how she might view a similar situation with another family.

[40]In short, I find that Mr Briscoe was alarmed to learn that the claimant did not consider what had apparently happened within her own home as a risk to her children, such that she continued to minimise and brush off safeguarding concerns, and this led him to have concerns about how she may view any safeguarding concerns in a professional capacity. This was a reasonable and valid concern for him to have, in the circumstances.

[41]Although this report is heavily redacted as to the details of the allegations involving the claimant, Mr Briscoe wrote “I am extremely concerned regarding the number of issues relating to this latest matter. Firstly, events with the children and [the claimant] appear to be escalating in frequency. Without applying my own parenting standards, the language used by [the claimant] to another safeguarding professional in her disclosure about [name of one of her children] is alarming and very disappointing for a Merseyside Police professional …………. Considering the professional aspect of this I am extremely concerned. Although I appreciate the conversation captured by the social worker recording the conversation has been at a time when the situation may have been raw and [the claimant] was at crisis point, this does not excuse the language and the gravity of the points raised in my breakdown of the conversation. This is a Merseyside Police Safeguarding Officer working in the Initial Child Protection Conference Team, an officer charged with dealing with the most sensitive and delicate information concerning children, who is prepared to use this kind of language to a fellow safeguarding professional. ….. I consider she is no longer suitable to continue in her role and her position within the Initial Child Protection Conference Team is untenable. I am concerned that if she did continue to operate within her role, Merseyside Police would be open to criticism from outside agencies such as Social Care due to her operating within her current role and I ask that she is removed from this department forthwith.”

[42]The response to Mr Briscoe was that this would be investigated, including possible redeployment for the claimant, but as the claimant worked term-time only and would be absent until September, the respondent had the time for a decision to be made by then.

[43]The claimant makes several assertions about this action in these proceedings. Firstly, she alleges that the concerns raised by Mr Briscoe were not serious enough to support the action that he suggested be taken. She refers to the safeguarding concerns as “alleged” and “refuted”. She places weight on the fact that they were “never brought to any criminal investigation outcome nor internal PSD [professional standards] sanction” and that her children were not placed on any child protection plans subsequently. She alleges, in effect, that her comments were taken out of context by the social worker that made the initial report.

[44]Secondly, she alleges that DCS Kameen had a “plan” which he had formulated in 2018 and which he progressed from 2021 onwards to sack the claimant for her absences. Her closing submissions (used for reference as to the claimant’s submissions to this Tribunal, given the lack of a proper witness statement from her) state “There appears to be a pattern of embedded behaviour in Merseyside Police Management and certainly several officers within management who are prepared to go to any lengths to dismiss me”.

[45]This allegation is not supported by the overwhelming evidence before the Tribunal. The respondent could, at several stages prior to August/September 2021 and subsequently, have dismissed the claimant fairly and lawfully for poor attendance. That they did not is to the respondent’s credit. As is recorded below, her absences undoubtedly had an immense impact on the respondent and her colleagues and managing them had a tremendous impact on the respondent’s management resources.

[46]The claimant alleges that there were no problems with her attendance and everything was going well for her prior to the decision to move her in September 2021. This is not supported by the evidence before the Tribunal. On no realistic assessment of the claimant’s attendance record could it be said that things were going well for her. She had been taken through a number of attendance management processes and had a number of sanctions imposed on her, including a final written warning.

[47]The claimant was invited to a meeting with Mr Briscoe and her immediate supervisor DS Desmond on 14 September 2021, to discuss the concerns. The claimant was given an opportunity to comment on the allegations, which she did. She was told that she was to remain with the child protection team but was not to involve herself in safeguarding work or conferences and was told to do administrative work from home, but to work from Huyton Police Station once a week. She sent an email to Mr Briscoe on 22 September 2021 asking to appeal against her “dismissal from her role”, but Mr Briscoe told the claimant that he was not the proper person to deal with such an appeal. The claimant did not raise the issue of an appeal until November 2022, when the respondent took further steps to redeploy her to a different role.

[48]The claimant, instead of continuing with the administrative work she had been asked to do, had a number of absences from work from September 2021 onwards and Mr Briscoe’s evidence, which I accept, was that the claimant was not doing any work at all by December 2021. She had to be reminded in January 2022 to attend Huyton once a week as she had failed to do so. There were also three further safeguarding incidents reported for the claimant’s children between February and April 2022. The claimant’s application for flexible working (known as a Per 50 form) had not been completed by the claimant at all since she had requested to reduce her hours in January 2020. Efforts were made by DS Desmond and Mr Briscoe to achieve this with the claimant in February 2022 onwards, with the assistance of HR, to no effect. She was repeatedly sent the guidance from HR as to how to complete the process but failed to do so.

[49]By April 2022, the claimant’s attendance was again very poor and following a meeting on 28 April 2022 with Superintendent Rhodes and DS Desmond, the claimant was put on paid leave while a suitable post was found for her to be redeployed into. The evidence of Mr Briscoe, which I accept, was that the intention of the respondent was that paid leave would allow the claimant time to resolve some of her personal issues and would not subject the claimant to financial hardship. I find that, in the circumstances, this was a very accommodating route for the respondent to take. It was not well received by the claimant.

[50]It is important to note the following finding of fact. I find that, had the safeguarding issues not arisen, and had the claimant continued to be employed in her role as safeguarding officer in the child protection team, she would still not have attended work reliably, would not have followed the Per 50 process as required, and would not have carried out her duties. Although the claimant vehemently objects to the decision to remove her from her safeguarding role, that decision had the effect of reducing the claimant’s workload considerably. Given that the claimant failed to provide regular attendance and regular work even with that considerably reduced role, on the balance of probabilities the evidence is that she would have been even more unlikely to have been able to fulfil her usual child safeguarding role during that period of time.

[51]The claimant was informed by DS Desmond on 3 May 2022 that she would be placed on paid leave. She was asked to return her laptop. She did not do so. She was told she was not being suspended. She raised concerns in early May via her union representative as to how communication would work during her leave. She spoke to DS Desmond about this on 16 May 2022 and he asked her if she wanted him to contact her at a particular time each day when they were both on duty, which she declined, and it was agreed that they would contact each other by telephone if they needed to speak. The claimant complains of a lack of support following her removal from her safeguarding role, but the evidence before the Tribunal is that she was offered support but declined it.

[52]The respondent subsequently identified several potential roles for the claimant to be redeployed into, and attempts were made in early July 2022 to meet with the claimant to discuss this. It did not prove possible for the claimant to attend a meeting due to the school summer holidays and so a meeting was scheduled for 26 September 2022, attended by the claimant and her GMB representative Mr Whittle.

[53]The claimant appeared to consider that the meeting was her opportunity to put her version of events to the respondent and to receive an explanation from them. The respondent considered the meeting an opportunity to discuss redeployment. During the meeting, the respondent explained to the claimant that she had been taken off the safeguarding work by the respondent’s management due to the risks of the claimant working in partnership with external agencies, such as social services. The claimant both alleged during that meeting that she had not been given a reason for her removal but also complained about her earlier meeting with Mr Briscoe in September 2021 where he was alleged to have read from a script, then told her to go home. However, the information given by Mr Briscoe in September 2021 was why the claimant was being removed from her safeguarding post. It was therefore not correct to say that the claimant had not been informed. However, the claimant was not given an update about this in any formal sense until the meeting on 26 September 2022. However, I find that this in part arose from the respondent’s difficulties in managing the claimant’s day to day attendance in her administrative role, and the decision to place her on paid leave in May 2022.

[54]The claimant’s position is both that she should have been either returned to her substantive role after September 2021 in IPIC or properly redeployed to a suitable role sooner. However, this is incompatible with her other main argument before this Tribunal, which is that her levels of absence were, in effect, reasonable, excusable and should have been accommodated by the respondent.

[55]The claimant also alleged during that hearing, and alleges again in these proceedings, that she was unsupported following her removal from the IPIC team in September 2021. I find that this is not supported by any of the evidence before the Tribunal. The claimant was, I find, very challenging to manage. She was supposed to regularly attend work and did not do so. She did not carry out the work given her to do and failed to complete her Per 50. When she was put on paid leave, she declined an offer of regular contact from DS Desmond. She was told by him that she would be able to contact him should she want to, but she did not do so. She was given information about possible redeployment roles in July 2022 and had a meeting in September 2022 with DS Desmond. She was not at work during the school summer holidays in 2022 in any event.

[56]The claimant will say that she was not properly removed from her post in September 2021 in that no procedure was followed in doing so. She considers this further evidence that the respondent’s management conspired to dismiss her. This position is unsupported by the evidence before me. She was not removed from post in accordance with a particular policy the respondent had to cover such circumstances, because the respondent simply did not have a policy that anticipated and dealt with these unusual circumstances. I accept the respondent’s evidence in this regard.

[57]Nevertheless, the respondent identified to the claimant as early as May 2022 that they were able to suspend the claimant from her role under their Restricted Duty & Suspension Procedure policy, where allegations were made the subject of which indicates that it would be inappropriate for the individual to remain in post while investigations were made and a decision made as to an appropriate posting. Despite this, when the claimant raised a grievance in November 2022, this was one of her grounds of complaint.

[58]The outcome of the meeting on 26 September 2022 was that the claimant should return to her safeguarding role in IPIC, a decision made by Ms Brown, employee relations manager at the respondent. When Mr Briscoe learned of this, he objected strongly, on the basis of the ongoing risk to his team and on the basis of the claimant continuing to experience issues in relation to her own children. The decision was subsequently made on 28 September 2022 to return the claimant to a period of paid leave pending redeployment and not to return her to the IPIC unit. Attempts were made also to allow the claimant to refute the allegations against her and put forward her version of events, but I accept that the claimant reported she was unable to attend both scheduled meetings. The claimant lodged her grievance in November 2022 and remained on paid leave until March 2023.

[59]I note that the claimant put forward her version of events in the grievance itself and was given a further opportunity as one of the outcomes of the grievance, which was that the claimant be given an opportunity to put forward her version of events at a meeting. The claimant also requested a right of appeal against the decision to remove her from her role. I accept that as the respondent had not dismissed the claimant, she did not have an automatic right to appeal against the operational decision to remove her from her safeguarding role.

[60]As a result of the claimant raising a grievance, the claimant was subsequently managed by DCI Hinds. Sgt Kerr was her immediate line manager. DCI Hinds received the outcome of the claimant’s grievance and the recommendations made in it in March 2023. She understood that a role had to be found for the claimant while a decision was made about her redeployment and whether that decision to redeploy should be overturned. DCI Hinds also understood that it was necessary to arrange a meeting with the claimant to allow her to put forward her account of the events around the safeguarding telephone call with Knowsley social services in August 2021. Redeployment to the Economic Crime Team

[61]A role was found for the claimant in the Economic Crime Team. DCI Hinds tried to arrange an initial meeting with the claimant, on 14 February 2023, and 1 March 2023, both of which were cancelled because the claimant could not attend. I accept that by this point the claimant was aware of the outcome of the grievance and that she was to return to work in the Economic Crime Team. The claimant and DCI Hinds met on 13 March 2023 at the claimant’s home, with the claimant being accompanied by her union representative. The claimant told DCI Hinds her version of events during the meeting, which was approximately two hours long. The claimant disputed the social worker’s version of events and said that the social worker offered her the opportunity to report to children’s social care, as the claimant had indicated that she was not able to cope with her current situation.

[62]Her union representative made submissions that the claimant was not a risk in terms of being in the IPIC team and was open to discussing staying in the Unit but changing roles. The claimant’s representative said that she “objected to being told to do what she was told or else face dismissal”. DCI Hinds told the claimant that she was not being considered for dismissal. DCI Hinds agreed to go away and provide an answer to two questions put by the claimant – why the respondent had taken so long to reach a conclusion and why her requests for an explanation for the removal from her role were not answered.

[63]DCI Hinds then had a lengthy meeting with Detective Superintendent Rhodes and Mr McNamara from HR, and it was agreed that the claimant could not return to her safeguarding post. DCI Hinds’ evidence was “there was an operational risk to consider as well as the fact that Dawn would have to interact professionally with social workers who she had disagreed with privately”. On further investigation DCI Hinds found that other than the incidents in August 2021, there were “other ongoing serious safeguarding issues regarding Dawn’s children” and so DCI Hinds was satisfied that this was the correct decision regarding the claimant’s role.

[64]DCI Hinds telephoned the claimant on 20 March 2023 to report back what the decision was and that she should report to the Economic Crime Team. She was told to contact Sgt Kay to plan for her return to work. She was told that she still needed to return her laptop to the Vulnerability Hub as she had been instructed to do in April 2022 and request a new laptop from the Economic Crime Team. The claimant was given a formal record of these decisions by Detective Superintendent Rhodes in a letter dated 23 March 2023.

[65]The claimant alleges that her meeting with DCI Hinds was a “sham”. There is no evidence that the respondent’s staff and officers carried out anything other than a reasonable investigation in the circumstances and reached a reasonable decision, that it was open for them to make. The claimant may disagree with it, but it does not follow that it was therefore a “sham”.

[66]Between May 2023 and the claimant’s dismissal in December 2023, the claimant failed to attend work for the Economic Crime Team. The claimant makes various points about why this was the case, including that she was not consulted about the decision to put her in that team, and that it did not provide a good match for her family and domestic requirements. However, I accept the respondent’s case that it had proven difficult to find a redeployment role for the claimant, and that she had an obligation herself to be co-operative in relation to the redeployment process and she was not.

[67]I accept the respondent’s evidence that the claimant needed to return to work and could not remain on paid leave indefinitely. The claimant counters this argument by saying that she should never have been made to leave her post in the Vulnerable Persons team. However, I accept that it was reasonable for the respondent to conclude that she could not remain in that role in the circumstances. Therefore, she was obliged to move and obliged to engage with the redeployment process if she wished to remain employed by the respondent. Redeployment to the Vulnerable Persons Unit

[68]Despite this, following the claimant’s repeated failure to attend the Economic Crime Team, in early May 2023 DCI Hinds decided to remove the claimant from that team and return her to the Vulnerable Person’s Unit. The offer of redeployment to the Economic Crime Team was withdrawn following her repeated non-engagement and DCI Hinds considered that it was not feasible for the claimant to remain at home on paid leave.

[69]DCI Hinds’ evidence, which I accept, was that she approached all the DCIs that she could to ask if there was any meaningful work the claimant would be able to do, but nothing appropriate for the claimant’s needs was available. However, DCI Hinds also knew that the claimant was still to finalise her “Per 50” paperwork and her redeployment paperwork. The claimant had also said to DCI Hinds that she did not want to simply delete her backlog of emails but wanted to work through all of them for reference and to help her with her going complaints and grievances. DCI Hinds evidence was that there were several self-learn training packages that the claimant had missed while she had been on paid leave, that she could complete.

[70]The decision was therefore taken for the claimant to work from Marsh Lane Police Station, carrying out these tasks, while a formal redeployment post was found for her. Although the claimant would return to the Vulnerable Person’s unit in an administrative capacity, I accept that she would not be involved with vulnerable people in the same capacity as previously. DCI Hinds had estimated that the catch-up work the claimant had been allocated to do would take approximately two weeks, following which period the redeployment picture may be clearer. The claimant complains about this decision and says that she was not given “meaningful” work to do.

[71]The claimant attended work at Marsh Lane on Tuesday 9 and Wednesday 10 May 2023. Her intended hours of work were 10am to 3pm Mondays, Tuesdays and Wednesdays. The next week, on 15 May, the claimant did not attend work due to a hospital appointment. DCI Hinds had a meeting with the claimant on Tuesday 16 May about a number of problems with the administrative side of the claimant’s employment.

[72]The claimant did not attend work on Monday 22 May and Tuesday 23 May. She did not submit any leave requests and did not contact the respondent to say where she was, she simply did not attend. This, I find, was a frequent occurrence with the claimant. There is a lot of evidence that the claimant, when she failed to attend work, made no contact with the respondent. This then placed an additional burden on the respondent to chase up with the claimant where she was, whether she was simply late or not attending at all, and why. This, I find, is unreasonable behaviour by the claimant.

[73]The claimant also did not attend work on 24 May and consequently missed a meeting arranged to assist her with her redeployment forms. The claimant also failed to attend work on 7 June 2023. When asked about this in crossexamination during this hearing, the claimant’s response was one of apparent surprise at the question itself. Her answer was “it was an INSET day” (at her children’s school). The respondent’s evidence was that they did not know this, and the claimant had not informed them that she would not be at work, or why. I find that the claimant’s attitude towards the requirement for her to attend work was that if anything in her private or family life caused her inconvenience, she considered it her right to not attend work and to not have to notify the respondent of her non-attendance, either in advance, on the day or afterwards.

[74]By October 2023 the following issues were affecting the claimant’s work, despite a considerable amount of support from the respondent:a. The claimant had taken flexitime without accruing it properly first. She had a flexitime deficit of -531.19 hours by July 2023;

b. No redeployment forms had been completed, despite a considerable amount of help from the respondent and several meetings arranged to provide this, including meetings which she had not attended (such as the meeting with Ania Wilson on 19 September, and the meeting also with Ms Wilson on 11 July which the claimant attended late);

c. The claimant had not sorted out her Per 50, and DCI Hinds ended up doing that herself, including uploading it to the system;

d. The claimant requested annual leave on 6 October due to her domestic issues, despite her having used all her annual leave and not having accrued enough flexitime to take any more time off work

e. The claimant wanted to change her working day to a Thursday despite having previously said she would not be able to work on a Thursday. The change was requested to allow her to attend a mindfulness course, which she insisted on doing in work time.

f. By October, the claimant had only attended work for 12 days and 5 of them had not been in Marsh Lane station as was required.

[75]DCI Hinds told the Tribunal about the extraordinary amount of time that it had taken to manage the claimant up to that point. She estimated that she had spent the equivalent of two whole working weeks managing her various issues, requests, refusals and problems. DCI Hinds became increasingly and reasonably of the view that the claimant’s conduct was unsustainable. The Tribunal is of the view that the respondent could have reasonably reached that conclusion some weeks or months earlier. The capability process

[76]DCI Hinds’ particular concerns were that the situation was worsening instead of getting better. She was concerned that the claimant appeared to continue getting into further debt with flexi-time with no prospect of paying it off and her prospects of successful redeployment were diminishing as the claimant had still not completed her redeployment forms. I find that the claimant considered by this stage that, as the respondent had no right (in her view) to remove her from her safeguarding role in the Vulnerable Persons Unit, she had even less of an obligation to attend work when it did not suit her to do so.

[77]The claimant was invited to a capability hearing to take place on 13 November 2023 before Assistant Chief Constable Wilson. The claimant asked for the meeting to be rearranged, and it was, for 11 December 2023. The claimant was on sick leave as of November 2023 but was not registered with a GP and so had not submitted a sick note. DCI Hinds collated a capability report for the hearing and included an earlier report by Mr Briscoe from May 2022.

[78]DCI Hinds included in her report that the claimant had been regularly working shorter hours than was required. The claimant wanted to have a term-time only contract but did not want to reduce her salary accordingly. She therefore needed to work an extra two hours per day (7.5 instead of 5.5) to ensure that she accrued enough hours for her to take leave over the summer holiday and still be paid for it. She had, however, never once worked the correct hours between 9 May 2023 and November 2023, had not once logged on at 9am and logged off at 5pm in that seven-month period, had not completed basic tasks and would not comply with instructions. I accept DCI Hinds’ evidence in that regard. The claimant insisted on not taking unpaid leave over the summer holiday but complained about having to work the required hours to do so. Hers was an entirely unsustainable position that the respondent was unable to accommodate.

[79]I accept that DCI Hinds’ intention was that, once the claimant had been properly returned to work, and had accrued some flexi-leave, the claimant would have had the opportunity to increase her flexible working. However, I accept that she did not have an automatic contractual right to do this and that the respondent’s reasonable management instruction was that the claimant had to provide regular attendance in order that she be rehabilitated into the workplace and demonstrate that she could be trusted to provide regular, reliable service.

[80]The claimant was also under added pressure at home because her child was being home-schooled by a tutor, but the claimant said she needed to be at home all day to supervise the tutor as the child could not be left alone with him. The respondent quite properly expressed serious concerns about the potential impact of this on the claimant, who was already struggling to complete basic tasks and provide basic levels of service.

[81]DI Kerr also provided a report for the capability hearing. I accept that his report reached very similar conclusions to that of Mr Briscoe and DCI Hinds, based on his interactions with the claimant.

[82]Neither the claimant nor her representative attended the hearing on 11 December 2023 with ACC Wilson. The information provided by DI Kerr was that the claimant was in the process of being evicted from her rental property while the property she owned was being renovated. ACC Wilson’s evidence was that the meeting was rescheduled from 13 November 2023 to 11 December 2023 at the claimant’s request. ACC Wilson understood that the claimant had been off sick since October 2023 but had not submitted a sick note during that time.

[83]ACC Wilson understood that the claimant had been sent a copy of the capability bundle and was asked to confirm who would be accompanying her to the hearing by 6 December. No reply was received from her or her union representative. On 11 December 2023 at 9.25am, Kerry Brown, people partner, received an email from a psychological therapist in the respondent’s occupational health unit who informed her that the claimant would not be attending because she was “not in the right frame of mind” and also due to “childcare”.

[84]ACC Wilson took the decision to continue the meeting in the claimant’s absence. I find that this was a reasonable decision in the circumstances. ACC Wilson noted that the claimant had had enough notice to be able to sort out her childcare arrangements, make written representations or ask her union to do so. She had not asked for the meeting to be postponed. There was no evidence or mitigation, she concluded, to support a postponement of the hearing.

[85]Despite the claimant not being in attendance, the respondent presented the management case to ACC Wilson who was chairing the meeting. From the evidence before the Tribunal, the process involved in the claimant’s capability hearing was fair and reasonable. ACC Wilson as the decision-maker was presented with the full pack of relevant information, which she considered.

[86]ACC Wilson adjourned the meeting to consider the evidence and returned to give her decision, which was that the claimant was dismissed with notice having failed to engage in every step of the capability process. She noted that there was no evidence that the claimant’s attendance was improving and that it appeared to her that the claimant had created barriers to prevent her return to work, such as failing to complete her redeployment form. She satisfied herself that the claimant’s managers had gone to “extreme lengths” to try to help her return to work. I accept her evidence in this regard. Her lack of engagement in the return to work process and her refusal to follow DCI Hinds’ instructions were reasons given by ACC Wilson for terminating her employment.

[87]I accept ACC Wilson’s evidence that she took into account the claimant’s personal problems and issues very carefully. I accept her evidence that accommodating the claimant’s personal circumstances had to be balanced against the cost of managing her to the respondent, the impact on her colleagues and managers and the efficiency of the service. ACC Wilson’s evidence was that “the problem was on too many occasions Dawn did not attend work, and when she did, she rarely completed her hours of work… Sue Hinds never attempted to stop Dawn working part time/term time, she made considerable effort to support Dawn, address the problems and resolve them which included ensuring Dawn’s Per 50 was correct on the system….it took a great deal of time and effort to manage Dawn, and this has an impact upon Dawn’s line managers and their ability to undertake their work – protecting vulnerable people and keeping communities safe”.

[88]ACC Wilson concluded that the claimant’s personal circumstances were such that she was unable to balance her personal and work commitments effectively. I accept her evidence in that regard; that the claimant was unable to balance her work and personal commitments, to the detriment of her work commitments, was apparent from the evidence before the Tribunal. ACC Wilson took the decision to dismiss the claimant due to her poor attendance and her failure to engage in the redeployment process. She reconvened the meeting and explained her decision to those present, which was to terminate the claimant’s employment.

[89]At the end of the hearing, DCI Hinds called the claimant to tell her the outcome, because she understood that the outcome would be disappointing to her. The claimant alleges that DCI Hinds harassed her during this phone call by saying words to the effect that “you shouldn’t be surprised at being dismissed, as your attendance is appalling.” DCI Hinds effectively agrees that this is what she said, in response to the claimant having expressed surprise about being dismissed. I accept that DCI Hinds was trying to explain the context of the decision to the claimant.

[90]The claimant also alleges that DCI Hinds also said “you are being paid to be a carer at home for your children” and “it must be nice to be paid to be able to be at home.” The evidence before the Tribunal is that this was not said to the claimant on this occasion by DCI Hinds, but in other meetings about her attendance, as is discussed below.

[91]The claimant raised an appeal against her dismissal. The appeal was heard by Sue McTaggart. The claimant raises no discrete issues in the List of Issues of unfairness or unreasonableness or discrimination in Ms McTaggart’s conduct of the appeal hearing. The claimant’s appeal was not upheld. The claimant’s Per 50 flexible working application

[92]I accept the respondent’s evidence that the claimant did not have a contractual right to work a particular pattern of part-time and/or term-time only. There was some confusion amongst the respondent’s evidence as to whether this was the case. DCI Hinds and ACC Wilson’s evidence was that there was no contractual right to it, but the evidence is that the respondent’s HR function considered that there was. I find that in practice this made no difference to the day-to-day operation of the respondent’s business, in that if part-time or term-time working was applied for and could be accommodated within the respondent’s operations, it was. The key difference is that, unlike with a contractual right, both parties have more flexibility to change the hours worked, or the working pattern. This also worked to the claimant’s advantage, and she worked different patterns during her employment with the respondent. However, the process depended on both parties co-operating, being flexible, and being reasonable.

[93]The method by which the respondent regulated the working hours of those who did not work a standard full-time working pattern was via the “Per 50” form, and the associated online records that the respondent’s staff were asked to keep. Keeping a record of hours worked allowed the respondent to monitor flexitime, annual leave and non-working days. The respondent’s evidence is that the claimant did not comply with the request to keep accurate records of hours worked.

[94]The claimant’s attitude to this, I find, appeared to be that this was not her concern, and that her managers would do it for her. At other times in the hearing she made allegations about how the system did not work properly, or that she had recorded her hours but other people had not accessed them. I accept that the respondent did not have a full and accurate record of the hours the claimant worked, over a period of several years, and that this made managing the claimant’s flexible working requests extremely difficult. This also affected the calculation of the claimant’s holiday pay and money owed to her at the end of her employment. I accept that the claimant did not take responsibility for her role in the “Per 50” process.

[95]However, when in October 2023 DCI Hinds eventually completed the process of trying to rationalise the claimant’s working hours and flexitime, including reducing the flexi-hours deficit for the claimant, the claimant was extremely critical of DCI Hinds for doing so, in her submissions to the Tribunal.

[96]The Tribunal had its own experience of trying to work with the claimant to identify her hours worked, having spent a considerable period of hearing time trying to work out what monies might be owed to the claimant. The claimant was unable to assist me with any accurate record of the figures and blamed the respondent for her inability to do so.

[97]The claimant makes other allegations about issues such as her laptop and her referral to Professional Standards. These are not relevant to the issues that the Tribunal had to decide, and are not addressed in this judgment.

The Law

[98]In claims for unlawful deductions from wages (s13 Employment Rights Act 1996), the payment sought by the claimant must be capable of being quantified in order to constitute wages properly payable under S.13(3).

[99]There are five potentially fair reasons for dismissal set out in S.98(1)(b) and (2) of the Employment Rights Act 1996 (ERA). The reason pleaded by the respondent in these proceedings is ill-health, that is, a reason related to the capability or qualifications of the employee for performing work of the kind which she was employed to do, or “some other substantial reason” in the alternative. It is for the employer to show on the balance of probabilities that the principal reason was a potentially fair reason.

[100]If the employer establishes a fair reason, the determination of the question of whether the dismissal is fair or unfair (as per s98(4) ERA):(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

[101]The test of whether or not the employer acted reasonably involves a Tribunal determining ‘the way in which a reasonable employer in those circumstances, in that line of business, would have behaved’ (NC Watling and Co Ltd v Richardson

1978 ICR 1049

, EAT). It is a well-established principle that it is the employer’s conduct which the Tribunal must assess, not the unfairness or injustice to the employee. Tribunals are to ask: did the employer’s action fall within the band (or range) of reasonable responses open to an employer (Iceland Frozen Foods Ltd v Jones

1983 ICR 17

, EAT)?

[102]An employer is entitled to look at an employee’s overall attendance in order to consider whether there is a likelihood of satisfactory attendance in the future. So far as general fairness is concerned, the question is not whether other employers in similar circumstances might have allowed additional time to see whether the employee’s attendance improved before dismissing but whether what the employer did fell within the band of reasonable responses (Kelly v Royal Mail Group Ltd EAT 0262/18 where the Tribunal found the dismissal was for some other substantial reason.)

[103]Length of service can be a relevant factor, with the key question being whether, on the circumstances of a case, the length of the employee’s service, and the manner in which he or she worked during that period, allows an inference that indicates that the employee is likely to return to work as soon as he or she can. Long service may show that the employee is ‘a good and willing worker with a good attendance record, someone who would do his utmost to get back to work as soon as he could’ (S v Dundee City Council

2014 IRLR 131

, Ct Sess (Inner House)).

[104]In the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000/1551 part-time workers have the right not to be treated by their employer less favourably than the employer treats comparable full-time workers, either as regards the terms of their employment contract (Regulation 5(1)(a)) or by being subjected to any other detriment by any act, or deliberate failure to act, of the employer (Regulation 5(1)(b)), where the reason for the treatment is that the worker is a part-time worker, and the treatment is not justified on objective grounds (Reg 5(2)).

[105]In Hendrickson Europe Ltd v Pipe EAT 0272/02 an employment tribunal considering whether a breach of Regulation 5 has occurred must answer the following four questions:a. what is the treatment complained of?

b. is that treatment less favourable?

c. is that less favourable treatment on the ground that the worker is part time?

d. if so, is the less favourable treatment justified?

[106]Regulation 2(4) establishes who is a comparable full-time worker in relation to a particular part-time worker. A part-time worker can compare his or her position with that of a full-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place:a. both workers are employed by the same employer under the same type of contract; and

b. both workers are engaged in the same or broadly similar work, having regard, where relevant, to whether they have a similar level of qualification, skills and experience; and

c. the full-time worker works or is based at the same establishment as the part-time worker.

[107]If there is no full-time worker working or based at the same establishment as the part-time worker, such as to satisfy the third condition set out above, Reg 2(4)(b) provides that the part-time worker may compare his or her treatment with that of a full-time worker who works or is based at a different establishment, provided that the full-time worker satisfies the first two conditions.

[108]Unlike in discrimination claims, there is no provision for a comparison to be made in the Part-time Workers (Prevention of Less Favourable Treatment) Regulations with a hypothetical comparator (Carl v University of Sheffield

2009 ICR 1286

, EAT) where the claim failed because of the absence of an actual fulltime comparator.

[109]The burden of proof in discrimination cases is set out in s136 Equality Act 2010, “(1) This section applies to any proceedings relating to a contravention of this Act. (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 subsection (2) does not apply if A shows that A did not contravene the provision.”

[110]Madarassy v Nomura International plc

[2007] ICR 867

at paragraph 58 states: “The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant. The consideration of the tribunal then moves to the second stage. The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim.”

[111]Where a Tribunal must assess an allegation of direct discrimination (s13 Equality Act 2010), it must consider whether the conduct in question amounts to(1) less favourable treatment of the claimant and

(2) the reason for that treatment, that is, whether this less favourable treatment was on the grounds of a protected characteristic. Glasgow City Council v Zafar

[1998] IRLR 36

[112]The definition of harassment is in s26 Equality Act 2010: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. [………] (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[113]In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

EAT, commenting on the application of s26(4), which is a matter for the Tribunal to decide in all the circumstances of the case: ''We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

[114]British Bung Manufacturing Co Ltd and anor v Finn

2023 EAT 165

: where a characteristic is more prevalent in one sex, and the conduct is more likely to be directed at persons of that sex, it is inherently related to sex.

[115]Although claims of harassment do not depend on the claimant establishing less favourable treatment, where the conduct complained of is clearly related to a protected characteristic this will clearly be because of the protected characteristic. By contrast, where the conduct complained of is ostensibly indiscriminate the shifting burden of proof may be applicable to establish whether the reason for the treatment was his or her protected characteristic.

[116]Before the burden can shift to the respondent, the claimant will need to establish on the balance of probabilities that he or she has been subjected to ‘unwanted conduct’ which has the ‘purpose or effect of violating [his or her] dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment’ for him or her. This is not enough to establish a prima facie case of harassment under S.26 Equality Act 2010. The claimant needs to adduce some evidence to suggest that the conduct could be related to the protected characteristic. Evidence that he or she is being treated differently from other employees who do not share his or her protected characteristic may be useful in this regard. Application of the law to the facts found – unfair dismissal

[117]As set out in the List of Issues, the claimant alleges that she was dismissed because of her part-time/term-time/home working patterns. The respondent says that the reason for her dismissal is capability or ‘some other substantial reason’, due to long-term absences.

[118]The evidence before the Tribunal is that the claimant’s absences levels were very high for approximately sixteen years. In the two years prior to her dismissal, she continued to have high levels of absence. Discounting the period in which she was placed on paid leave (between the end of April 2022 and March 2023), she did not provide regular, reliable service to the respondent. When she was removed from the safeguarding role in September 2021, she was told to attend work in Huyton one day per week and do administrative work from home, but she failed to attend Huyton station as instructed and failed to complete much of the work given to her to do.

[119]Efforts were made to find a suitable redeployment role for the claimant from March 2023 onwards, first in the Economic Crime Team and then in the Vulnerable Persons Unit. The claimant failed again to provide regular, reliable levels of service to the respondent during this period.

[120]She has provided the Tribunal with a wide range of reasons for her inability to provide regular, consistent attendance at the respondent. I accept that the respondent knew of these reasons and ACC Wilson took them into account in her decision-making. However, the sheer number of days’ absence accrued by the claimant means that none of these reasons to amount to an appropriate justification for such an excessive amount of absence from work. The claimant’s reasons include:a. She should not have been removed from her safeguarding officer role. However, this is an operational decision the respondent was reasonably entitled to make in the circumstances. The claimant was offered redeployment but failed to engage in the process.

b. The respondent’s failure to offer enough support with the completion of redeployment forms were inadequate, despite this being the individual employee’s responsibility, and despite the claimant being given repeated help and guidance;

c. School issues for her children, including meetings scheduled at the start of a working day such as re-integration meetings after suspension. This appeared to mean to the claimant that she was unable to work for the entire day;

d. Not being able to attend the office because she had to be at home due to her son being tutored at home;

e. Eviction from her rented house and a flood in the other house she owned;

f. The claimant’s sickness;

g. The claimant’s childrens’ sickness;

h. Problems with her laptop, despite her being able to present herself in the office to obtain help with IT issues;

i. Needing to take the annual leave she accrued while being on paid suspension.

[121]The claimant’s closing statement says “When the respondent was aware I was going through so much at home… I do not call this ‘support or understanding’ or the actions of a caring employer during my exceptional difficult circumstances.”

[122]I find that the respondent has been exceptionally accommodating towards the claimant, over a sixteen-year period in which she has failed to provide consistent and regular attendance and service to them. She appears to consider that there are no adverse consequences for the respondent, or her colleagues, because of her absence. She is very unhappy that DCI Hinds pointed out, when she was dismissed, that effectively she was being paid by Merseyside Police to be a carer at home for her children, However, this statement is factually correct. This was what was happening.

[123]The employment contract that exists between an employer and an employee is based on payment of a salary in exchange for the employee’s work. Employee rights such as maternity leave, parental leave, emergency time off for dependents, annual leave and so on, are important employment rights, but they do not detract from the fact that an employee must do some work for her employer. Employees who regularly fail to attend can expect at some point to be dismissed. Non-attendance cannot be expected to be tolerated forever by an employer. In the claimant’s case, repeated and long-term non-attendance was tolerated by the respondent over a period of approximately sixteen years. This was a long period of tolerance.

[124]In terms of the impact of these findings on the unfair dismissal claim, I accept that the respondent’s reason for dismissal was the claimant’s capability to provide sustained attendance in future. I find that ACC Wilson reached the conclusion that the claimant was no longer capable of providing regular and sustained attendance and service to the respondent. I accept that ACC Wilson concluded that the respondent could not reasonably be expected to wait longer before dismissing the claimant.

[125]The respondent had made numerous attempts to redeploy the claimant and return her to work which were unsuccessful.

[126]It was clear, at the time of the claimant’s dismissal, as a result of that there was no reasonable prospect of matters improving in relation to the claimant’s attendance at work. The claimant has raised no particular issues with the respondent’s conduct of the appeal, and I have found none in my findings of fact. The process carried out by the respondent, including the appeal, was a reasonable one, within the range of reasonable responses (as per J Sainsbury Plc v Hitt).

[127]I find that the investigation carried out by the respondent was reasonable. There is no dispute between the parties as to the extent of the claimant’s absences. The respondent sought alternative work for the claimant, but that process was not successful. I find that ACC Wilson considered the claimant’s absences and the reasons for them afresh, having not been involved in the management of her absences previously. She was sympathetic towards the claimant’s family situation but considered the level of absence unsustainable and that there was seemingly no prospect of matters improving in future.

[128]The claimant alleges that she was not adequately consulted and did not know that the meeting on 20 October 2023 might lead to her dismissal. I find that she was sent standard letters in advance of the meeting, and any rescheduled meetings, that warned her of this. I find that the claimant did not consider that she may be dismissed, not that the respondent did not warn her of this.

[129]The claimant says that she “wanted at all times to return to work” but that she was prevented from doing so by the respondent’s refusal to allow her to work from home part-time and term-time only. I do not accept this allegation is made out on the facts before me. The claimant had no contractual right to parttime/term-time working which was available subject to the respondent’s operational requirements. The claimant consistently failed to co-operate with the respondent. For example, she persistently failed to complete her redeployment forms, so the respondent’s attempts to find her alternative work did not progress. She was off sick for 7 weeks but did not submit a sick note. ACC Wilson reasonably concluded that the claimant could not be relied on to co-operate with the respondent in future, given her failure to engage in the redeployment process, and could not be expected to provide good attendance.

[130]The List of Issues provides a long list of matters that the claimant wishes the Tribunal to take into consideration, to conclude that the respondent acted unreasonably in dismissing the claimant. The question for the Tribunal is whether it could be said that no reasonable employer would dismiss the claimant in the circumstances. I have considered the factors in the claimant’s list and conclude that the respondent acted within the range of reasonable responses in dismissing her. They followed a fair procedure, dismissed for a fair reason, and made concerted efforts to consult with her and redeploy her.

[131]The claimant was fairly dismissed, for a fair reason, and her dismissal was not for an unlawful reason, that being said to be her working pattern and her childcare responsibilities. Direct sex discrimination/harassment on the grounds of sex

[132]The allegations the claimant says are sex discrimination are as follows:a. That the claimant was disciplined and dismissed for her absences and that a hypothetical male comparator would not have been treated in this way in the same circumstances.

b. That she was “denied home working” by DCI Hinds in spring 2023 and September 2023 and that a hypothetical male comparator would not have been treated in this way in the same circumstances. She has also alluded to an employee called Paul Kay who was allowed to work from home.

c. That she was not allocated any work between September 2021 to March 2023 and that a hypothetical male comparator would not have been treated in this way in the same circumstances.

d. That the respondent failed to offer her support to complete redeployment forms and that a hypothetical male comparator would not have been treated in this way in the same circumstances.

e. That she was called to a capability hearing on 20 October 2023 and that a hypothetical male comparator would not have been treated in this way in the same circumstances.

[133]In relation to allegation (a), there is no evidence that a hypothetical male comparator, with the same level of absence as the claimant and the same lack of engagement in a redeployment process, would not also have been disciplined and dismissed. The claimant persistently speculates that there is a link between the alleged sex discrimination and her childcare responsibilities, but this argument is not accepted. She has shown no link between her childcare issues and the respondent’s attitude towards her as a female employee as opposed to a male employee. There is no suggestion anywhere in the evidence that the respondent would have treated a male member of staff even more leniently than the claimant was treated.

[134]Secondly, she alleges that she was denied home working by DCI Hinds. Firstly, in September 2023, the claimant’s request was for annual leave, not home working. Secondly, the claimant was told by DCI Hinds why she was not able to work from home in Spring 2023. The respondent’s evidence is accepted, which is that this was because of the unacceptably high levels of absence, so that the claimant needed to return to work to be supported and supervised. There is no evidence whatsoever that a man in the same circumstances would have been treated any more favourably. The claimant’s suggested comparator, Mr Kay, was not in the same circumstances as the claimant and so is not a statutory comparator (s23 Equality Act 2010).

[135]Thirdly, the respondent accepts that the claimant was given minimal work to do. This was because she had a large backlog of existing work to clear, and administrative work to do, such as completing her Per 50. Furthermore, I accept that because the claimant’s attendance at work was so unreliable, the respondent was frequently confused as to her whereabouts and so did not allocate much work to her. There is no evidence whatsoever that a man in the same circumstances would have been treated any more favourably, or had more work allocated to him.

[136]Fourthly, I do not find as a matter of fact that the respondent failed to offer her support to complete redeployment forms. This was not established by the claimant on the evidence. The claimant was provided with a considerable amount of support to complete the redeployment forms but failed to do so.

[137]Finally, that she was called to a capability hearing on 20 October 2023 and that a hypothetical male comparator would not have been treated in this way in the same circumstances. There is no evidence whatsoever to show that the claimant’s sex was any part of the decision to call her to a capability hearing. It was solely to do with the claimant’s ongoing poor attendance.

[138]The allegations of harassment are that: i. DCI Hinds said on 16 May 2023 it is not the responsibility of Merseyside Police to sort out your childcare ii. DCI Hinds referred to the claimant’s historical absences and previous disciplinary on 16 May 2023 iii. The respondent calling the claimant to a capability hearing on 20 October 2023 iv. The respondent dismissing the claimant in her absence v. DCI Hinds saying in a phone call to the claimant on 11 December 2023 “The respondent is paying for you to be a carer at home for your children” and “ it must be nice to still be paid to be able to be at home” and “I shouldn’t be surprised to hear I was dismissed if I were you as my attendance was appalling”.

[139]The claimant alleges that these matters had the effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The Tribunal’s assessment of this must be subject to section 26(4), which states “in deciding whether conduct has the effect referred to … each of the following must be taken into account—(a) the perception of B;

(b) the other circumstances of the case;

[140]Although claims of harassment do not depend on the claimant establishing less favourable treatment, where the conduct complained of is related to a protected characteristic, it will more readily be established that it is because of the protected characteristic. By contrast, where the conduct complained of is ostensibly indiscriminate, the shifting burden of proof may be applicable to establish whether the reason for the treatment was his or her protected characteristic.

[141]The question arises as to whether any of these allegations can be said to be “related to” the claimant’s sex. The claimant says that because her childcare/part-time working is the issue, that anything that arises as a consequence of that is sex discrimination, due to “a higher percentage of women undertaking childcare responsibilities.” I have taken judicial notice of the fact that this is statistically correct across the UK population.

[142]Taking the following together, are the allegations in (i) that DCI Hinds referred to the claimant’s historical absences and previous disciplinary on 16 May 2023, (iii) the respondent calling the claimant to a capability hearing on 20 October 2023 and (iv) the respondent dismissing the claimant in her absence “related to” her sex? Can they be sufficiently closely linked with the fact that the claimant is female? I do not accept that they are. They are related to her long periods of absence from the workplace. Requiring attendance at work is not an act of harassment in these circumstances and there is no evidence it was related to the claimant’s sex.

[143]Are the following allegations “related to” her sex: (i) that DCI Hinds said on 16 May 2023 it is not the responsibility of Merseyside Police to sort out your childcare and (v) DCI Hinds said in a phone call to the claimant on 11 December 2023 “The respondent is paying for you to be a carer at home for your children” and “ it must be nice to still be paid to be able to be at home” and “I shouldn’t be surprised to hear I was dismissed if I were you as my attendance was appalling”.

[144]The latter of these allegations (“I shouldn’t be surprised to hear I was dismissed if I were you as my attendance was appalling”) is not related to the claimant’s sex. The view of DCI Hinds was that the claimant’s surprise at being dismissed was of itself very surprising to her. As a matter of fact, the claimant’s attendance was exceptionally poor. There is nothing “related to” the fact that the claimant was female, or that she had particular needs related to childcare, in this statement.

[145]That DCI Hinds said “it is not the responsibility of Merseyside Police to sort out your childcare” and “The respondent is paying for you to be a carer at home for your children” is “related to” the claimant’s sex, in that, applying British Bung Manufacturing Co Ltd and anor v Finn

2023 EAT 165

: where a characteristic is more prevalent in one sex, and the conduct is more likely to be directed at persons of that sex, it is inherently related to sex. The characteristic of managing childcare is more prevalent in women than men and comments about childcare are more likely to be directed at women than men. The claimant perceived these comments to have violated her dignity and created an intimidating, hostile and degrading environment for her.

[146]However, as per s26(4), taking into account the circumstances of the case, it is true to say that it was not the respondent’s responsibility to sort out the claimant’s childcare, and effectively at times the respondent was paying the claimant to be a carer at home for her children. The claimant was seemingly indifferent to the impact on the respondent of her actions in relation to her attendance. DCI Hinds, I find, found the claimant’s indifference a source of frustration, and her comments were made in these circumstances.

[147]As per Richmond Pharmacology v Dhaliwal “…while it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by [racially] offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

[148]I find that these comments were unfortunate phrases borne out of the difficulties of dealing with the claimant’s attendance at work, which as the respondent noted, took more of the respondent’s time and resources than dealing with the whole of the rest of the Vulnerable Persons Unit put together. While I accept that the claimant’s family situation was extremely difficult and stressful, in all the circumstances of the case these two comments in allegation (v) do not meet the test in s26(4). It was not reasonable for the claimant to feel, in the circumstances of her ongoing extensive absences and the respondent’s ongoing attempts to manage them, that her dignity had been violated by these comments. Part-time worker discrimination

[149]The claimant disputes that it is necessary for her to have provided an actual comparator for the purposes of this part of her claim. Even if I were to take her case at its highest and allow her to argue that a hypothetical full-time comparator would have been treated more favourably than her, she has produced no evidence to support this contention. A comparable full-time hypothetical worker would have to be in the same circumstances as the claimant, that is, removed from IPIC team, failing to engage properly with the respondent and with very high levels of absence. There is nothing to suggest that a comparable full-time worker would have been treated any differently, or more favourably, on the basis of their full-time status in the circumstances. However, I prefer the respondent’s submissions in relation to Carl v University of Sheffield which is that as no actual comparator has been identified in relation to the part-time worker claims, they are bound to fail. Unlawful deductions from wages

[150]As noted above, despite extensive discussions of the evidence and extensive assistance being given to the claimant to present her evidence during the hearing, the claimant could not establish when the respondent made an unauthorised deduction from the claimant's wages. Although she had provided the Tribunal with a figure as part of the list of issues of £530, she was unable to show how or when this was deducted, or when it was properly payable to her as is required for claims under s13 Employment Rights Act 1996. The complaint of unauthorised deductions from wages is therefore not well-founded, fails and is dismissed. Approved by: