Mrs J Perkin v Northern Care Alliance NHS Foundation Trust: 2403401/2023

EMPLOYMENT TRIBUNALS

Case No 2403401/2023

Between

Mrs J PerkinClaimant

Northern Care Alliance NHS Foundation TrustRespondent

Before

Employment Judge Eeley

In person for claimant

Mr A Gibson (instructed by solicitor) for respondent

Date 12 September 2024

JUDGMENT

[1]The claim of disability discrimination in the form of a breach of the duty to make reasonable adjustments (sections 20/21 Equality Act 2010) was not presented within the applicable time limit. It is not just and equitable to extend the time limit. The claim is therefore dismissed.

[2]The complaint of constructive unfair dismissal is well-founded. The claimant was unfairly dismissed.

[3]The respondent shall pay the claimant the following sums: (a) A basic award of £4282.50

[4]The Employment Protection (Recoupment of Benefits) Regulations 1996 do not apply.

REASONS

[1]This is the claimant’s claim against Northern Care Alliance NHS Foundation Trust. It is a claim of constructive unfair dismissal and of disability discrimination in the form of breach of the duty to make reasonable adjustments. It arises from a claim form that was presented to the Tribunal on 12 March 2023 following a period of Early Conciliation from 24 January 2023 to 7 March 2023.

[2]The claimant was employed by the respondent as Lead Operational Manager between 19 April 2017 and 2 January 2023.

[3]The disabilities relied upon for the purposes of the discrimination claim are osteoarthritis and hypoparathyroidism. The respondent has conceded that the claimant was disabled by reason of those conditions at all material times and has also conceded that it knew of those disabilities for the purposes of the claim. Case No. 2403401/2023 2 Witnesses and Evidence

[4]The Tribunal had access to an agreed bundle of documents which consisted of 433 pages. We considered those documents to which we were referred by the parties during the hearing.

[5]We received written witness statements and heard oral evidence from:a. The claimant, Julie Perkin.

b. Karen Southern, the Associate Director for Productivity and Efficiency at the respondent. (During the relevant period of time for this claim she was the respondent’s Interim Head of Patient Access and Administration.)

c. Moneeza Iqbal, the respondent’s Director of Strategy. We also received oral closing submissions from both parties.

[6]We did not hear evidence from Mr Jared Szpakowski (“Jared”). He was appointed as the claimant's line manager from November 2021 until the termination of her employment. His absence from the Tribunal hearing means that there was a gap in the evidence available for our consideration.

[7]The Tribunal had to make findings of fact based on the evidence that was available and was presented to it. For the avoidance of doubt, where conflicting evidence was given orally by two or more witnesses at the Tribunal hearing we decided, on balance, which witness’s evidence we preferred on any given matter. Where one party’s oral evidence was not contradicted by the evidence of the other party, or where they were not challenged on that part of their evidence in cross examination, then the evidence of that oral witness would be accepted as unchallenged. Hearsay/written evidence produced by a person who was not present for cross examination at the hearing would generally be given less weight than that of a witness at the hearing, in the absence of other supporting evidence.

[8]We also had regard to some contemporaneous documents. For example, Jared did provide some documents for the internal grievance which had the potential to fill in some of the gaps in the witness evidence. Of course, the Tribunal read these and took them into consideration. However, given that they were not accompanied by oral witness evidence, they would generally be given less weight than the evidence of the witnesses who were available for cross examination and whose evidence could be challenged and evaluated on that basis. List of Issues Case No. 2403401/2023 3

List of Issues

[9]We agreed the List of Issues for determination in the case at the start of the hearing. There was a draft List of Issues presented by the parties and we clarified some aspects of that List of Issues. For the benefit of the record, for example, at paragraph 6(a) (which dealt with substantial disadvantage in the reasonable adjustments claim) I sought clarity about what was meant by “diminished working life.” I obtained clarification that that was a reference to the fact that it was harder for the claimant to do her job, that her symptoms were exacerbated by the PCPs in the case, and that her fatigue and pain increased.

[10]Likewise, I sought clarification of the third of the reasonable adjustments that was contended for (at paragraph 8.1.3). This was said to be the claimant referring to the respondent requiring her to work longer hours, difficulties arising out of the distance that she had to travel to Rochdale (because there were travel difficulties) and we needed to look at the adjustments that could (and should) have been made regarding how and when she would travel to the Rochdale site.

Findings of Fact

[11]With those clarifications in hand, we proceeded to hear the evidence, and the following are our findings of fact in roughly chronological order.

[12]The claimant started work with the respondent at Band 7 on 19 April 2017.

[13]On 8 April 2021 the claimant had her annual appraisal with Karen Southern, and the claimant says that no issues were raised with her about her performance at that meeting. Her objectives for future performance were set, and she says that it was recognised that not all of the objectives could be met straightaway. We looked at the document in relation to that appraisal (page 67 of the bundle) and we noted that there is very little/nothing in it in the way of an assessment of the claimant's performance to date. There are no scores or indications of underperformance/overperformance. What the document does do is give the claimant what might be referred to as a “to do list” of objectives (page 72). There is no record, really, of good or bad performance by the claimant leading up to this point in time.

[14]There does not seem to be a suggestion in this document of longstanding performance problems in the claimant's case. There is nothing to indicate, for example, a failure to meet objectives or underperformance in the preceding months and years. The Tribunal noted (at page 74) that there is a record that the claimant was seeking career progression and a note that she would be ready for this in the next 12 months. Again, this does not suggest a background of underperformance at this point in time. The document does refer to challenges within the department in the next 6-12 months and that this was an opportunity for the claimant to develop and evidence her leadership skills.

[15]On a reasonable reading of this document, the claimant certainly would not have interpreted it as a bad appraisal. We conclude that it would not have foreshadowed or forewarned the claimant of any intention on the respondent’s part to look at performance management for her. Case No. 2403401/2023 4

[16]We also noted that in the list of tasks to be completed, many of them referred to the claimant supporting Karen Southern in Karen Southern’s role. The claimant was required to support and assist other people with their tasks as well as having her own specific individual responsibilities.

[17]On about 8 July 2021, without any prior discussion, the claimant had a meeting put into her diary. She was not informed in advance what the meeting was about. When she attended the meeting, she says that she was met by Karen Southern telling her that her performance was not up to scratch and that she was to be put on an informal performance management process and given a six-week action plan. We accept that this came as something of a shock to the claimant.

[18]There was a follow-up letter within the bundle (at pages 82-83) which was produced some time after the meeting. There were no minutes kept of the meeting itself, no record in writing of what was said or what was discussed. The letter itself is dated 14 July 2021, so some days later.

[19]The Tribunal notes that the claimant had previously had an arrangement of being able to work from 8.00am until 4.00pm and then finish work earlier, at 2.00pm, on a Friday. The letter following the meeting suggests that this was changed. Certainly, the earlier finish time on a Friday was removed and it was made clear that the claimant needed to be available until 5.00pm every day, certainly on the phone, if not in person.

[20]The claimant was given six weeks to perform against the targets as part of the informal performance management process.

[21]The Tribunal notes that the parties did not actually refer us to the respondent’s written performance procedure/capability process, and we could not find it within the bundle. That means that the Tribunal is not able to assess the way that the respondent conducted itself as measured against the respondent’s own internal procedures in order to see whether the respondent actually followed its own procedures. The Tribunal had to look at matters objectively and consider whether this was an appropriately handled informal stage to a capability management process. In doing that we thought that the matters set out below were of relevance.

[22]There was no background context to the events of 8 July to be gleaned from the April appraisal, which was only a few months earlier. There was nothing to forewarn or alert the claimant to the fact that she was seen as having a history of failing to perform adequately. The claimant was not on notice that there was likely to be these sorts of consequence after the April appraisal if she failed to improve or perform adequately by the summer of 2021.

[23]Likewise, the meeting itself was held without warning. The claimant was not told what the subject matter of the meeting was. There was no letter of invitation indicating what the subject matter of the conversation was going to be (even in broad terms). There was no reference to the claimant having any companion at the meeting. When the claimant got to the meeting, we have heard no evidence from either party to suggest that she was provided with any documents. There Case No. 2403401/2023 5 is nothing to demonstrate that she was talked through any documents during the meeting to exemplify and explain what the respondent thought the problems actually were. It appears that this was an entirely verbal exchange. We would, perhaps, have expected the specific problems to have been addressed by reference to the available evidence, so that the claimant knew what the issues were and what she had to address. It appears that the claimant was led to address concerns that were raised with her verbally; her response had to be verbal, and she did not have any real time to think about it or prepare her response to the issues raised. There was also no reference to any opportunity for the claimant to go away and find her own documents to rebut any of the concerns that were raised with her. The only document produced is the follow-up letter already referred to.

[24]It is fair to say that the capability meeting will have come as something of a shock to the claimant. The claimant, to some extent, will have felt ambushed by the concerns raised. That said, the claimant did accept that the respondent was entitled to initiate some form of capability process. This does not mean, however, that it was done in an appropriate manner. In the course of her evidence to us the claimant indicated that she had no issue with the subsequent management of the process – the way that the informal process went forward from there. She was, in fact, able to meet her objectives and the process was closed off and concluded. However, the way that the process started remained relevant, we find, to the working relationship between the parties going forward. The initiation of the process was poorly handled. We can accept that the respondent may have had reasonable grounds to put the claimant on performance management but they did not do it in the most appropriate way. This may well have sown the seeds for a subsequent relationship breakdown between the parties. That said, we heard from the claimant that she put it behind her once she had ‘passed’ the informal process. Whilst it may have remained at the ‘back of her mind’ she got on with the job.

[25]The informal process therefore was completed and signed off by the end of September and a letter was sent accordingly. It appears that a meeting took place on 15 September 2021 about this but we have no notes from that and no evidence from either side as to what that meeting consisted of. Therefore, the follow-up letter (dated 29 October 2021) is the only written record of the conversation. I do note that there are positive comments in that letter (at page 92) about the way that the claimant had responded to the process and demonstrated her abilities.

[26]At around this time the claimant informed Karen Southern of her diagnosis of hypoparathyroidism. At this stage the main symptom was noted to be excessive fatigue. As a result, there was a referral to Occupational Health on 24 July, which we can see in the bundle at page 85.

[27]The other issue to touch on in the chronology is that during the six weeks covered by the informal performance procedure, a post was due to be advertised for a Senior Operational Manager which would be at Band 8A. That person would be responsible for the overall management of the Booking Department. The claimant felt that the role had been created specifically for Case No. 2403401/2023 6 Jared and that, given that she was on an informal performance management plan, she was unable to apply for that role.

[28]We also note that Karen Southern was off work on sick leave for two weeks in the middle of the six-week performance management process and that was the reason why it took slightly longer to complete and sign off on that process. The Tribunal also notes that the letter (page 92) says: “You have shown in a short period of time that you can lead the team and have taken on board feedback and constructive criticism. Please continue the hard work.”

[29]At the end of the letter following the meeting there is also a suggestion that Karen Southern will keep in touch with the claimant monthly, on an ongoing basis, although there is no written record to indicate whether this in fact happened.

[30]The claimant was referred to Occupational Health and the report arising from the referral was produced, dated 21 September 2021 (page 89 of the bundle). It recorded a number of things about the claimant's situation. It recorded that the claimant worked full-time and that (at that point in time) she was working three days a week from home but that in the New Year she would be required to travel to the linked site at Rochdale. In terms of her disabilities, the claimant was described as experiencing a constant level of background pain, particularly affecting her lower back and also joints in her arms and legs. Her symptoms were exacerbated by mobilising, by prolonged sustained postures and by the repetitive use of the affected joints. Her exercise tolerance was limited to less than 20 metres and she was limited in her tolerance of carrying out activities from a standing position. She required assistance with some aspects of everyday living at home but was largely able to carry out all aspects of her role and duties with some adjustments made to minimise the impact of the symptoms. The chronic nature of the joint pain was associated with varying degrees of fatigue which she had recently felt was exacerbated by the impact of the hypoparathyroidism. The prescribed treatment had been partially helpful in improving her energy levels and the Occupational Health report did record that the claimant was fit to carry out her full contracted role. However, the report made recommendations to minimise the impact of her conditions. Those recommendations were seven in number and I will set them out here.

[31]The first recommendation was that there was to be a programme of management carrying out supportive periodic ‘check-ins’ with the claimant. These were intended to facilitate an open platform for the claimant to raise any concerns that she may have. The Tribunal did not really hear any substantive evidence to show that such meetings actually took place or that they were carried out in a systematic fashion. There is certainly no record of monthly one-to-ones with Karen Southern, for example. There is nothing documented.

[32]The second recommendation was that management should update the claimant's workstation and DSE assessment in order to ensure that the claimant’s equipment was ergonomically optimised to her needs. By the time Case No. 2403401/2023 7 the parties got to the Tribunal hearing, the respondent seems to have accepted that this was never done. Indeed, we looked in vain for an earlier or previous assessment that could have been updated in this way. There was no record of such an assessment. There is no suggestion that there was a previous or a subsequent proper assessment. We also heard some evidence from Ms Southern which indicated that she had made unwarranted assumptions about the claimant's workstation and her equipment. She assumed, for example, that the equipment that she observed in the claimant's room had been provided as part of a previous assessment and that a particular chair and ergonomic keyboard were there specifically for the claimant to use and to assist her. It appears that she never thought to check this with the claimant or to ask where these pieces of equipment had come from or to check whether her assumption was correct. When the chair actually disappeared from the location Ms Southern assumed (rather than checked) that the claimant had taken it home with her. The evidence presented to the Tribunal suggested that the claimant had effectively inherited the chair from a colleague who had left it behind. It subsequently broke hence it was removed from her workstation. There was a lack of management curiosity about the claimant's requirements and the equipment that had been provided for her. Likewise, there was an assumption that the ergonomic keyboard was there for the claimant’s benefit but we heard from the claimant that, in fact, this was not something that was of assistance to her and was not being used by her. It was not part of a package of reasonable adjustments.

[33]The Tribunal also notes that an assumption was made that the claimant would be able to procure whatever she needed. However, we had no evidence in front of us of purchase orders, assessments or procurement procedures. Taken at its highest, the respondent’s case appeared to be that the claimant should decide what she needed, order it, and they would sign it off to authorise it. The Tribunal is not sure that the claimant would necessarily know where to start in order to make an appropriate order for the relevant equipment.

[34]Moving on to the third Occupational Health recommendation, this was to consider the feasibility of accessing speech recognition software in order to help the claimant in minimising the time that she spent typing, as this could act as a potential trigger for pain. The evidence seems to be that this was never explored by the respondent at all, at any stage. The most we heard about this was that at some point Jared said to the claimant that she should have been using the inbuilt dictation feature within the Microsoft Word software. However, it is important to note that nobody had ever told her that this existed. She was unaware of it and Jared’s comments did come across as rather dismissive of the claimant. So, it appears that the respondent never acted on that third Occupational Health recommendation.

[35]Recommendation four was that suitable seating be made available for the claimant when she was away from her desk, such as when attending meetings. The tribunal heard no evidence about that. There was nothing to suggest that this was ever looked into as an adjustment. Case No. 2403401/2023 8

[36]Recommendation five was with regard to flexible working. The recommendation was that the claimant be able to take self-directed breaks and work around some of her symptoms to some degree. The only flexibility we heard about was the working from home and the early finish on a Friday but, as stated, that had been removed to a large extent. There was no evidence provided to the Tribunal about a discussion taking place concerning regular breaks or how this would/could work in practice. In fact, flexibility seems to have been diminished rather than increased in the months which followed.

[37]The sixth recommendation in the report was in relation to car parking and the difficulties that the claimant faced in terms of distance travelled between parking and workplace. It was suggested the respondent look into that and look at logistical options and additional support. It does appear that this was the one aspect of the recommendations which was acted upon. The trail of correspondence seems to indicate that this was in place by around November 2021.

[38]The seventh (and final) recommendation was actually something more for the claimant to look into. It was said that the claimant may benefit from an updated assessment by her GP with consideration of an onwards referral to a specialist to optimise the management of joint pain. The claimant says that she did this. As stated, it was not really something for the respondent to act upon in all the circumstances.

[39]We also noted that the Occupational Health report noted that the claimant was likely to be covered by the disability provisions of the Equality Act 2010. Importantly there was no meeting between the claimant and any of her managers to discuss the contents of the Occupational Health report and how it could or should be implemented. At best, taken at its highest, Ms Southern’s evidence to the Tribunal was that there would have been conversations about this during their regular interactions. However, there is nothing recorded or documented and certainly nothing specific to the Occupational Health process. It appears that the respondent adopted a reactive approach and waited to see if the claimant raised any issues rather than being proactive to devise a plan of action arising from the Occupational Health report.

[40]It is also notable that we were not taken to any written procedure within the respondent’s evidence about how to deal with Occupational Health reports and recommendations, aside from the Personalised Workplace Adjustments Policy (“PWAP”). However, that deals with something slightly different, so we were left somewhat unsure what the approved process was supposed to be within the respondent organisation. What does routinely happen to Occupational Health reports obtained by the respondent? How are they reacted to by the respondent’s managers? The Tribunal would have thought that it would be reasonable and appropriate, in a working relationship, to sit down with the claimant, discuss the report, check which parts of it are agreed/disagreed with by the claimant and then make a proposed plan of action to implement the recommendations with at least an indication of an intended timeframe. That did not transpire in this case. Case No. 2403401/2023 9

[41]The Tribunal did see the “PWAP” procedure (page 386), the Personalised Workplace Adjustments Policy. The start of the document reads as follows: “The Personalised Workplace Adjustments Policy describes how to use the Personalised Workplace Adjustments Passport (PWAP) in order to guide decisions around reasonable adjustments that staff members may require under the Equality Act 2010. The PWAP can be used for the benefit of individuals, line managers, HR and the Occupational Health Team. The PWAP consists of a form which is completed with a line manager. It usually details reasonable adjustments that have been agreed and implemented as part of the Equality Act 2010. This information is then available in advance should the member of staff change role, location or manager. The aim is to speed up the process and remove the need for further explanation or re-negotiation about reasonable adjustments each time there is a change to a staff member’s location, role or line manager. Managers (current and future) will be able to arrange and plan for the adjustments to move as smoothly as possible with a member of staff to any new role or location as appropriate. The PWAP will guarantee continuity of any arrangements that are required for the member of staff in the workplace. The PWAP should be regularly reviewed particularly if a person’s requirements change i.e. more needed or adjustments no longer required.… The PWAP describes, amongst other things: the nature of the condition and effects/symptoms; any reasonable adjustments that the individual might need; action to take if the individual becomes unwell at work.”

[42]Essentially the PWAP provides a process designed to allow adjustments to be made and for something which might be seen as a form of disability passport to be produced. One of the purposes of this is that what an employee needs is put ‘on the record’ and that goes with them wherever they go within the organisation. It means that the adjustments are, to some extent, protected and the parties are not left continually having to recollect what has been agreed or to argue to maintain what has previously been agreed.

[43]At paragraph 6.1 on page 392 of the document bundle there is a section on the manager’s responsibilities under the PWAP. It lists the manager’s responsibilities as follows:• Take a leading role in supporting all their staff members.

• Notice of any of their staff have, or are developing, disability issues in their day-to-day work.

• Co-ordinate the provision of any reasonable adjustments required.

• Consider whether adjustments may be necessary if aware that the person has a disability (even if the person has not disclosed the disability.) This should be done in consultation with the individual. o Example: when a member of staff is away on sick absence, the manager needs to consider if there could be an underlying Case No. 2403401/2023 10 disability issue (information should be provided via keeping in touch meetings/home visits.)

• Ensure matters are treated sensitively and confidentially.

• Ensure that all Health and Safety requirements are in place and used.

• Involve Occupational Health if needed.

[44]It appears that the policy was not fully complied with in the circumstances of this case. The parties are agreed that there was no PWAP, no passport for the claimant. So, for example, the early finish on Friday afternoon which had been previously agreed was removed from the claimant in one way or another. If it had been recorded in a passport it may well have been harder for this to happen. Everyone in the employment relationship would know what was required (and why) and it would not have been an ongoing process of justifying the adjustments that were already in place.

[45]In the course of the evidence the Tribunal was told that one-to-ones between the claimant and Karen Southern were in a log. Ms Southern said that she usually recorded what actions she had agreed to take, however we were unable to locate such a log in the bundle and none of the parties in the Tribunal hearing were able to direct us to the log in question. So, as previously noted, we do not really know what these ongoing discussions comprised of.

[46]As previously stated, Ms Southern told the claimant to order whichever chair she thought she needed. The Tribunal is uncertain how (without an assessment) the claimant was to know what was needed or appropriate, what was available, and how to go about ordering it. There was a lack of support and respect towards the claimant in this approach.

[47]The Tribunal also finds that the claimant did not receive a reply when she mentioned the speech recognition software.

[48]Once the Occupational Health report was produced it really is unclear what became of it. Apart from the changes to parking, the report seems have languished somewhere on the system rather than being actively considered and implemented. The approach seems to have been that it was for the claimant to chase compliance with recommendations and that if she did not do so it was not the respondent’s responsibility to do this for her.

[49]Moving back to the chronology, shortly after the informal performance management plan, the claimant was told that the department would undergo a consultation to change the way that the staff worked for the respondent. Roles were to be made more generic and would follow the same structure as at the Rochdale site. There would be a change so that staff would work in divisions. We heard unchallenged evidence that Karen Southern had overall responsibility for consultation with the staff and informed them of the change, and that staff visited Rochdale, but nothing was done to address their concerns about the changes. Case No. 2403401/2023 11

[50]We also heard that part of the changes required staff to move to a different office space at the hospital. We heard that the claimant led the move of all of the booking staff to their new office on the third floor on 4 or 5 December 2021. We note that there was no personal evacuation plan for the site for the claimant and we do rather wonder (as was later commented) how she would handle evacuation from that office in the event of a fire (when using a lift would have been inappropriate.) We note that during the grievance hearing it appears that Jared indicated that the claimant could (and should) use the lift, apparently in contravention of health and safety precautions in a fire situation. The claimant's evidence in relation to this was not challenged in cross examination.

[51]Many of the staff in the department sought employment elsewhere and started to leave the department because of their unhappiness with the changes and the consultation. Those left in the department were short-staffed and under increased pressure. We heard that many of the staff who were still in post were nevertheless off work on long-term sickness leave. Again, this was not challenged in evidence. It meant that the department was operating without adequate staff. This was not something which the claimant had direct control over but which would impact upon her ability to do her own job as a manager at Band 7.

[52]There was an allegation by Karen and Jared that the claimant should have informed the HR representative of this issue of understaffing. The claimant says, however, that the usual process would be for the HR representative to provide monthly staffing figures to the lead manager to act on and that this never happened in relation to her department with the HR representative that her department had.

[53]The claimant was also accused of being on annual leave at the time when there was a change to the phone management process, and she challenges this as incorrect. The claimant says, “I wasn’t off work, I was working from home, but I was available”, and this is another example of an assertion being made about the claimant by the respondent which was not properly tested and appears to have been incorrect.

[54]In around January/February 2022 one of the respondent’s managers did a mystery shopper exercise. Part of the feedback resulting from that was that the email address of the department on the answerphone message was wrong. The claimant says that she had been misinformed about this but was criticised for making a mistake. She maintains that the issue here was that a project manager had not fed back to her that the originally agreed email address was wrong and needed to be changed. Hence, she did not change it. The claimant was not cross examined on that and her evidence was unchallenged. Again, the claimant appears to have been blamed for something which may not have been her fault.

[55]On 6 February 2022 the claimant had an accident. She hurt her foot. The claimant, therefore, worked for five days a week from home for a few weeks until she had recovered. The claimant claims that, at this point Karen and Jared started to try to micromanage her work. She says that she was being penalised Case No. 2403401/2023 12 for things that were either not her fault or not part of her responsibilities. The claimant gave some examples of this in her witness statement, which were not challenged in cross examination and are therefore accepted. Some of these examples included that she was informed on a number of occasions that she did not know how the ‘pivots’ worked and that, due to this, she needed to complete a new report daily called “the sit rep” (which we presume is an abbreviation for ‘Situation Report.’) The claimant expressed concerns about being able to do this alongside her other duties and managing an increasingly unhappy and struggling workforce. The claimant was told that she was the only person who could do the report. She started to complete it but ended up having to do it in her own time given the other difficulties in the department. When the claimant raised this with Karen Southern at the end of a catch-up and indicated that she was doing 3-4 hours every evening to make sure that it was done, the claimant alleges that no compassion was extended to her, particularly in relation to her health. Indeed, she was told that this was part and parcel of working at this level and this ‘went with the territory,’ so to speak.

[56]The claimant was also accused of not having kept a record of what needed to be done in the department and of not providing Key Performance Indicators. The claimant says that she informed the respondent that she had only ever been asked for the registration figures and ‘calls handled’ and that, once this was raised with her, she sent over the database and the registrations. The claimant further says that at this point the criticism morphed/changed to allege that she had not done anything since the change of working. The claimant maintains that she had proved that she had done what was required of her within her daily record of emails.

[57]The claimant also alleges that, at one of the catch-ups with Jared, she told him that she had been concentrating on clearing the DrDr queue. This was the mechanism where patients sent messages to change or cancel appointments. The claimant told Jared that this needed to be dealt with and explained the reasons why. However, she was told that this was not important and that, in fact, she should concentrate on the Sit Rep report. The claimant felt that the DrDr issue was an extremely important part of her role as patients’ records were filled out as though they had not attended appointments when, in fact, they had cancelled the appointments. Some patients could (and were) discharged inappropriately as a result of these incorrect records.

[58]Jared told the claimant that she did not understand the SitRep report in an email which had various questions in it regarding the figures. The claimant says that this was never discussed in detail in order for her to show that, in fact, she did understand and had answered his questions (particularly as she was the person who had been completing it daily.) When the claimant told Jared that she did understand the SitRep he then asked why she had not escalated it. She told him that she had replied to his email with the answers and was going to pick it up with each team as she sat with the staff. However, she was not allowed to come back into the office to do this exercise before she caught Covid-19.

[59]What the Tribunal observes is a pattern of accusations being made against the claimant, which are not pursued and which are ‘left hanging’. The claimant Case No. 2403401/2023 13 maintains that if they had been properly addressed with her, she would have been able to rebut the allegations.

[60]On 16 February 2022 the claimant walked into the office for a meeting with Karen Southern to find that Jared was also present. The claimant was told during this meeting (without warning) that Karen Southern had little confidence that she could manage the department and that it was her fault that the department was in ‘such a state.’ The claimant says that she got upset and told Karen that she disagreed with her. At one point Karen Southern felt the need to refer to the fact that she (Karen Southern) did ‘have a heart’ and the claimant suggests that this indicates that Ms Southern was in fact throwing accusations around at the meeting. We note that the claimant had walked into the meeting without any warning of the subject matter or how the meeting would be conducted, and there was a lack of consideration as to how this would be received by the claimant and how it would impact upon her.

[61]The claimant says that, for her part, during this meeting she informed Karen and Jared that the department was becoming unable to function effectively due to staffing levels. She indicated that they had not acted upon this issue when she had previously escalated it to them.

[62]This is a key meeting in this case and, again, there are no minutes of the meeting. The Tribunal cannot see a contemporaneous record of what was said and by whom. The Tribunal has to rely on witness recollection. At paragraph 5 of her statement Karen Southern noted that there were issues with the claimant's management of the team, but we are unclear exactly what they were and on what basis it was a problem which was attributed to the claimant. The respondent gave no detail of this. The respondent did not explain which problems were the claimant's responsibility and what related to the chronic understaffing. We were left wondering whether the claimant had been blamed for some issues which were actually outside of her control. The Tribunal can see that there were many negative comments and a lot of blame. There was certainly no forewarning, however, of any formal performance management procedures. As far as the claimant was concerned at this point in the chronology, she had completed and passed the only informal performance procedure six months beforehand.

[63]After this meeting, nothing was put in writing by the respondent. The Tribunal had initially been referred to a letter (page 170) but, in fact, that letter was never sent. Indeed, contrary to Ms Southern’s initial evidence in her signed witness statement, it was not sent and cannot have been the trigger for the claimant's subsequent absence on sick leave (as Ms Southern suggested in her statement.) Indeed, contrary to Ms Southern’s witness statement, it was not drafted by Jared but was in fact written by Ms Southern herself. We remained uncertain why or how Ms Southern got that particular aspect of her witness statement wrong.

[64]In the following weeks there seems to have been a pattern of some critical ‘off the cuff’ comments from Jared and Karen to the claimant but there was no formal or informal meeting to address them. The comments seem to have been Case No. 2403401/2023 14 made ‘in passing’ in the course of normal day-to-day activities. These are criticisms that were being raised with the claimant before her March sick leave. There was no formal right of reply, no evidence provided for her to respond to. These are matters where the claimant says that she was being blamed for matters which were either not part of her role, or attributable to the inaction of others. The reality is that the Tribunal will never know if this was ‘fair comment’ or not. The claimant's reputation was being tarnished without a right of reply or an opportunity for her to defend or vindicate herself.

[65]At around this time the claimant was told that she had not told line managers that they had dealt with any pre-op bookings when they had looked at staffing numbers. Consequently, the claimant had in to go and look for the document that she had produced in relation to this and forward it her managers in order to demonstrate that, in fact, this had been dealt with. The claimant was also accused of not having the right levels of staff in each directorate but, again, she says that she had the documents to defend herself against this allegation.

[66]The claimant also tells us that there was a meeting on 17 February at which managers gave instructions as to how the situation should be addressed. The claimant was instructed that she had to be on site five days per week, something that the managers knew she was struggling to do. She had been working three days of the work from home following on from her Occupational Health referral.

[67]Following on from this, the claimant started to struggle with chest pain. The claimant was told to work five days a week at home and not to contact the team. Jared indicated that he would give the claimant her weekly and daily tasks and that she should concentrate on those. The claimant did this for a week until the pain subsided and then she asked to come back into the office. The claimant was told, “no, stay at home and do the Sit Rep,” as Jared would do the claimant's job and would run the office. Jared told the claimant that she would not be managing the staff, he would do this. There was no consultation regarding Occupational Health to see if, in fact, the claimant was fit to return to work. The claimant was understandably concerned that she was being excluded from the team at this point.

[68]The claimant then contracted Covid-19 and from 24 March was off work as a result. There is some indication that during her sick leave she did do some working from home in the form of email correspondence. There was also an implied criticism by Jared that the claimant had already been off work for ten days, the suggestion being that she should be back at work. The claimant maintains that she was still testing positive for Covid-19 at this stage.

[69]The claimant tagged some annual leave onto her sick leave from 6-8 April (as agreed with Jared). This was done in order to help her recuperate and to make up for annual leave that she had lost during her sick leave. Jared put a return-to-work meeting in the diary for 11 April. There was no indication that it was anything other than a standard return to work meeting after a period of sick leave. Case No. 2403401/2023 15

[70]The one-to-one meeting took place. The claimant had no inkling that there was going to be any discussion of performance management. There was no warning of this. The parties (the claimant and Jared) got through the return-to-work portion of the meeting with no difficulty.

[71]The claimant then gave essentially unchallenged evidence about the remainder of the meeting. The claimant says: “Jared said that he had been having a think whilst I had been off, and he was going to put me on a 6-month formal performance plan for me to train on how the department was run and how to retrain some of the things he thought I could not do in my current role. When challenged on what this would be, he told me that he could not disclose that until we had a meeting. I was also informed I would be removed from my current role and that someone on secondment would replace me and manage the department whilst I was on performance for 6 months. I then questioned what I was to do until the meeting, and I was informed to just concentrate on catching up with my emails… The person taken on to replace me for the 6 months was a Band 5 elsewhere in the Trust and a close personal friend of Jared’s which, given the issues within the department, did not feel like an appropriate fit especially as Karen and Jared were saying that myself with over 19 years’ experience at Band 7 and above could not manage the department effectively. At this point I was extremely upset and felt that I was being constructively pushed out of my job, even though I had felt that since the beginning of February when I escalated that the department was struggling. This was a drastic change from the quarterly CF2 in September 2021 where no worries had been highlighted.”

[72]The only other participant at that meeting was Jared. He did not provide witness evidence to the Tribunal. He did do some written documentation in relation to it in his summary for the grievance (pages 252-254) It does not really contradict much of what the claimant says about the contents of the actual meeting itself. Most of his written document focuses on what happened before and after and what was going on behind the scenes within management, which was not necessarily communicated to the claimant and which she would not know about. Jared writes: “I am not able to respond to the points raised in relation to June 2021 and prior as these are before I was in post. However, it is here Julie references her feeling as though she is being set up to fail. Julie goes on to say that over the following months she was continually subjected to accusations of not having completed tasks or having a handle on things. Because Julie has not provided any specifics, I am unable to respond as I am unclear if Julie is referring to me or not. Julie in her grievance provides an example of a situation which occurred on 18 March when Julie reported she was feeling the pressure of the service and was having chest pains. Julie states in her grievance I did not refer her to occupational health however my recollection is that Julie did not at this stage want an OH referral made and instead to best support her and reduce the stress I asked her to work from home five days a week and focus on the key challenges only Case No. 2403401/2023 16 including the sitRep, prioritisation of the team’s work and her inbox… Julie and I kept in regular contact and discussed how things were going and how she was getting on. She reported feeling more settled at home with no more chest pains which I was pleased to hear. She also noted that she was enjoying getting a deeper understanding of the service and was happy working with me on the operational measures including the sitRep. Julie did say she wanted to resume some on-site working however I was concerned that given the ongoing and increasing pressures within the service this would likely have a further negative impact on Julie’s health and well-being. Alongside this there was an increasing concern regarding the performance of the team which included Julie’s performance. I fed this back to Julie stating that I felt she was too reliant on Gaynor to get answers to questions I would expect her to know, so I wanted her to spend focused time getting into the detail of the service from home without the added distraction and stressors of the office. Julie was eventually content with this arrangement. During this period Julie maintained frequent contact with her colleagues. This amendment to Julie’s working pattern I felt did not need a further OH referral as we were managing her stressors together and this was only a temporary arrangement. Julie in her grievance provides one further example dated 11 April 2022 in which she sets out several bullet points and her recollection of the discussed. I have addressed the bullets below and where our versions of events differ provided my own recollection of the discussion. No prior warning of issues There had been a number of issues raised with Julie prior to this point. Some of which are set out already above. My stated reason Julie states that the reasons we discussed were due to staff leaving and fitness. However, the reasons which I discussed with Julie on 11 April were;• knowledge of how her own service ran was not where it needed to be

• there were a growing number of errors both with her team and herself

• the staff did not feel well led through the mobilisation of the new model that has in part led to the staffing issues (was at this point around 45% sickness/absence rate)

• there were a number of further serious issues identified that would have been outlined in the formal performance meeting however I did not get the opportunity to discuss these with Julie, due to her sickness absence. There was a serious clinical risk identified relating to delayed patient care due to the poor management of appointment bookings and/or the lack of management of staff whose role is to book appointments. There was a risk logged of 12 in DATIX outlining the nature of the risk. Examples of this included staff who were being asked to do tasks they were not fully trained on, people could not log into the phone system, there was no rota in place to match the Rochdale model and people were becoming unwell and leaving in high numbers. When Julie was working from home there were more issues identified. It was identified that the band 5 staff member in Julie’s team has not been trained on absence management and there were several staff on both short and long term sickness with no clear management plans in place because of this. For example, in March, a member of staff returned to work after six weeks off for work-related stress, but no one had briefed her or done her return to work. The return to work interview Case No. 2403401/2023 17 … The meeting on 11 April was in two parts-the first part was the return to work interview in which we discussed her recent sickness and any ongoing support which Julie felt there was none needed as she was fit to work with no ongoing treatment. We agreed to undertake a CF2 & Wellbeing Conversation. The second part of the meeting which did take place immediately after was where I brought up the intention to formalise performance action plan. Julie states I was aggressive and had a bullying manner in that meeting. I refute this claim completely. I was clear this was to be a supportive process for Julie.… Julie states she has been humiliated in front of her own team and placed in a position where it is impossible for her to return to her post. I am not clear on what Julie means by this as all conversations between us have been strictly confidential and therefore the team are not privy to any details, except that Julie is absent from work due to sickness. Therefore, I foresee no issue with Julie returning to her post and for us to commence the planned performance action plan. Finally, Julie in her grievance talks about the backfill arrangements currently in place and I thought it helpful if I provided some background on this. Following Julie’s further sickness absence, I immediately sought advice from Karen Southern due to the operational impact this would likely continue to have on the service. Karen & I met with Keith Meldrum, Director of HR to seek some advice on how we might be able to fill this crucial gap in the service. Keith advised he was supportive of us putting in an interim pending Julie’s return but also to support the increasing pressures within the Salford team. I therefore advertised in line with the trust’s recruitment policy a secondment opportunity for 12 months which went out to internal advert, 3 candidates were interviewed by myself & Karen Southern and 2 were successful (we also had a slightly different project role vacant). Both successful candidates were on the trust talent management programme. Regarding Julie’s comment that Urszula is a personal friend and inference that this has in some way influenced the interview process I would like the opportunity to assure the panel that this has no bearing on our decision-making. Urszula and I were colleagues until 2016 when I left Salford Royal. We have not worked together again since this time. Conclusion In conclusion I refute the allegations Julie Perkins has set out in her grievance documentation. Julie refers to supporting evidence however I have not had sight of this and as there are very limited examples provided it is difficult for me to respond any further than I already have.”

Conclusion

[73]On balance, the Tribunal preferred the claimant's evidence about what happened at the meeting on 11 April and in the run-up to it. Our focus has to be on what the respondent’s managers said to the claimant and how it was said, how it would come across to her, and the impact it would have on her working relationship with her employer. If things are going on in the background and the claimant is not told about them then she cannot factor them into her reaction to the respondent’s actions.

[74]From the claimant's point of view, a pattern was developing whereby she would have a meeting with her manager (or previous line manager), and it would turn into an ambush. The claimant did not know what to expect when she had meetings with the respondent’s managers. The claimant's account of what was said and how it was said was not really contradicted. The fact that there are no notes of the meeting to confirm that the respondent’s account is correct or that the claimant's version of events in her witness statement is incorrect is also worthy of note. Case No. 2403401/2023 18

[75]There was no further letter after this meeting to set out what was discussed or to correct the claimant's interpretation of what had been said to her. There was no attempt made by Mr Szpakowski to try and put the claimant's mind at rest or to put this in some form of context. The claimant went home and, in effect, stewed on it. There was also no letter detailing what the respondent’s concerns were, in terms of specifics.

[76]At this point the claimant started her period of sick leave. This was due to stress at work and ultimately the claimant never returned to work.

[77]The Tribunal notes that there were some management discussions in 2022 about staffing across the department. We asked Ms Southern about this and heard conflicting/confusing evidence about how many Band 7s there were going to be in the department and why. There was a discussion (apparently) about having two Band 7s as this was needed due to the problems within the department as a whole. What is not clear is whether the recruitment of a second Band 7 was timed or designed to cover the claimant's sickness leave. We heard conflicting evidence about whether the Band 7 was going to brought in alongside the claimant (as an extra pair of hands) or as an interim/permanent replacement for her. There was some indication that the new Band 7 came in once the claimant had been on sick leave for four weeks and had been categorised as being on long-term sick. The question is what the claimant was told about this. It is not clear that the respondent told her anything about the new Band 7s, about why they were there and what this meant for her continued employment with the respondent. The last thing that the claimant was told was what was said at the meeting on 11 April, which would have undermined her confidence about her continued position within the department. Instead, there was an indication that someone else was going to come in at her level without any explanation or reassurance being given to the claimant that her position was safe and that they were not replacing her. This was particularly significant given what Jared had said to her on 11 April and the fact that her security in her employment was being challenged and undermined.

[78]The Tribunal also notes that during the long-term sickness discussion the claimant said to Jared that the performance policy had not been followed and she did not understand why it went straight to the full performance process. Jared informed the claimant that it was because the department was at risk. The claimant did not feel that this was her responsibility as she had not initiated the changes, as she explains at paragraph 27 of her statement.

[79]The claimant left work at this stage and did not go back.

[80]The claimant raised a grievance. The grievance was sent on 24 June (page 183) although it is dated 2 June. The claimant had had no formal communication from the respondent (that we have been directed to) up to this point. The claimant was on sick leave and the respondent was not progressing with either the performance management or an Occupational Health referral. The Tribunal sees that there was an Occupational Health referral on 19 April (page 175) but by June there was still no Occupational Health report. The Tribunal heard oral evidence that there was a catalogue of problems in getting Case No. 2403401/2023 19 the Occupational Health appointment because of some mismanagement on the respondent’s side. The Occupational Health Department kept trying to contact the claimant using her work phone number and consequently she did not receive their messages. It was effectively six months before she got to Occupational Health and her mental health was left to deteriorate in the meantime.

[81]We referred to page 202 in the bundle which indicated that the issue of the work mobile phone number being given to Occupational Health was raised with the respondent by the claimant. The claimant maintained that she had been waiting on a call, to no avail. There are relevant sections within that document (at page 202) that indicate the claimant's state of mind and her concern and dissatisfaction at the way this whole process was being handled. There was a further follow-up email (page 212) in similar vein. She refers to the fact that she was disappointed not to have received the courtesy of a response or an acknowledgement. She continued, “I lodged a grievance with you in line with the NCA policy and have fully adhered to everything asked of me. It is now almost 6 months since I made the organisation aware of my experience; I did so in the genuine belief that the organisation actually respected its workforce. I have regrettably learnt that this is absolutely not the case. Please note the following:• I submitted my grievance four months ago but the matter is yet to progress to a meeting.

• It took 5 months for me to be seen by Occupational Health (and even when this did happen it was because I contacted them directly (they had been given incorrect contact details by the manager requesting the OH assessment)

• The NCA sickness management process has not been followed.

• There has been zero concern for my welfare throughout this process which has led to a deterioration in my health, significant increase in medications and a concerning loss in confidence in myself.

• The organisation will reduce my pay to 50% with effect from next week (11th October) which I feel in all of the circumstances is grossly unfair as it is the organisation’s failure to manage the grievance and my sickness which has left me in a situation where I have been unable to return to work

• The organisation has failed in its duty of care in its failure to meet my needs as a registered disabled person.

• I have made clear that I would welcome the opportunity to return to work, albeit not to my current role for obvious reasons, but I have not heard from anyone in this matter I feel completely isolated by the actions, or inactions of the organisation and ask that someone gets back to me with the following information:

• The date on which I will be invited to discuss my grievance and when the organisation anticipates the process will be completed.

• Confirmation that my salary will not be reduced on the basis that the extended sickness of June entirely to the poor management of my grievance and my sickness. I would respectfully ask that someone does contact me as a matter of urgency as this whole situation is causing my mental and physical health to further deteriorate and I Case No. 2403401/2023 20 am feeling unable to cope in the face of the situation that has left me feeling worthless and was disrespected by an organisation which publicly paints a picture of care and concern but which in reality treats its staff appallingly.”

[82]The claimant’s complaint was effectively escalated to Mr Meldrum of HR, resulting in his email at page 209. The trigger email for this was the one at page 212. That email provided evidence of the claimant’s state of mind and the fact she was having to escalate matters through the respondent in order to try and get some progress. As a consequence, Keith Meldrum decided to extend the claimant’s full pay. His email also confirmed that he would set out a timeline for getting the claimant’s grievance progressed and would ensure that someone was allocated to support the claimant during her absence.

[83]The claimant sent an email on 10 October (page 208). In that email she refers to looking for redeployment within the respondent organisation. She was looking for opportunities. By this stage the claimant felt that she could not return to work until the grievance was resolved and she agreed with Keith Meldrum that she would not return to work in her previous role. The claimant felt that the relationship in that department was broken, however she had not decided at this point to leave the respondent’s employment entirely.

[84]The claimant finally received a draft Occupational Health report on 12 October (page 222). She emailed some corrections and proposed amendments to it. Over this period of time, in the absence of further support, the claimant was evidently getting increasingly concerned about returning to work with the respondent even in a different department. The claimant worried that this would not be feasible. She worried about bumping into Karen Southern and Jared and so she started to look into her options for work outside of the respondent. The claimant was worried about losing her house as a result of financial difficulties.

[85]The claimant looked for a new job and sought a reference for the new job on 2 November (page 233). The more she was left alone to worry about things, the more difficult her return to the respondent’s employment became. The only positive steps taken during this period was that the respondent decided to extend her full pay, initially for a month but subsequently this continued until the end of her employment.

[86]The length of time that the grievance procedure took added to the claimant’s stress and anxiety. The claimant gave evidence that she was prescribed antidepressants, and the contemporaneous documents refer to this. The dosage needed to be increased as the proceedings took longer and longer. During this time the claimant decided that, although the Trust had told her that she could return to work in a different department, she felt that she needed a fresh start. She started to look for a job at another Trust.

[87]The claimant also referred to the stigma which she felt attaches to somebody who is put under threat of performance management and then moves department- the stigma follows them into the new department. Indeed, the respondent had never formally said that it would ‘drop the charges’ or drop the formal capability process. This was something that the claimant still had hanging over her. By November, therefore, the die was cast. The claimant had Case No. 2403401/2023 21 effectively decided that, if she could get a new job, she would not return to work for the respondent.

[88]The Tribunal found that the claimant must have had a new job offer by early November. In doing so, we reasoned backwards from the starting point of notice pay. The claimant gave clear evidence to the Tribunal that what she wanted was to receive her eight weeks’ notice pay as some form of recompense for the way that she had been treated. However, she also wanted to be able to leave immediately to take up her new job. The claimant gave evidence that she asked for this but that Keith Meldrum would not allow it. Thus, the claimant effectively stayed in the job and ‘worked’ out her notice for eight weeks whilst remaining on sick leave. The eight weeks’ notice elapsed whilst the claimant was on sick leave. The claimant then started her new job on 3 January. So, working back eight weeks, the claimant must have indicated an intention to resign near the beginning of November. Notably, neither party showed the Tribunal a written notice of resignation.

[89]Following on from that there was a grievance meeting on 23 November. Once again there are no notes of the grievance meeting. We do not know what was said and by whom, what questions were asked or what answers were given. We were told that the claimant attended with her trade union representative. The meeting was held by Ms Iqbal with HR support from Tina Lonergan. Both Jared and Ms Southern attended as the respondent side’s witnesses. We were not provided with a copy of the grievance procedure so we do not know what the respondent’s normal practice is, but it is not satisfactory that we were not able to refer to contemporaneous documentation to see what went on during the grievance. We also note that the claimant was not sent an invitation letter indicating the time and place for the meeting, indicating who would be present, or what documents would be considered. The indication given to the Tribunal was that some of the attendees from the management side made their own notes at the meeting but none of these were used to create an official note of the meeting which the claimant could review and approve. The claimant just received the summary of events outlined in the grievance outcome letter.

[90]At this point Ms Iqbal was aware that the claimant had obtained another job. She told the Tribunal that during her evidence. Indeed, the dates set out above indicate that the claimant must have communicated her resignation intentions to the respondent by this stage.

[91]The chronology of events means that the claimant her decision to resign before the grievance hearing and before the grievance outcome. This means that the grievance hearing and the grievance outcome cannot have caused the claimant’s resignation because they post-date it.

[92]There was then a further delay in getting an outcome to the grievance. Emails in the bundle indicate that the claimant was supposed to get the outcome letter before Christmas. There was expected to be a delay before a meeting could be held. The claimant was asked if she preferred to wait for a meeting in order to get the outcome, or whether she preferred not to wait and to get the outcome in writing before any meeting. The claimant asked for the outcome as soon as Case No. 2403401/2023 22 possible in writing but, in the event, although she was told she would have a written outcome first, the respondent did not manage to do that until 3 January.

[93]The outcome letter was at page 281 of the bundle. The majority of the claimant's allegations were upheld but very general recommendations were made which were not specifically tailored to the claimant's circumstances. Much of the outcome related to ‘learning points’ for the department. It was noted that the car park issue had been dealt with and it was noted that there was no PWAP done for the claimant (that part of the grievance allegation was upheld). It was concluded that neither Karen nor Jared had undertaken the personalised work or home assessment as per DSE guidance and none of this was considered when the office move took place- there was no personalised evacuation plan. Occupational Health recommendations were considered and it was observed that there was limited evidence of periodic check-ins taking place with the manager. The letter noted that there was evidence of a breakdown in the management relationship. It also noted that there was no workstation assessment and no evidence that speech recognition software had been explored or an assessment of seating when the claimant was away from her own desk. The letter noted that, rather than flexibility regarding working hours, there was evidence of managers being directive about it and making stipulations about the claimant's availability beyond her core hours. (It was noted that arranging a GP consultation was, of course, a matter for the claimant.) It was noted there was no meeting to review Occupational Health recommendations and how they would be implemented. Notwithstanding this, this part of the claimant’s grievance was recorded as part upheld rather than fully upheld, presumably because the parking issue had been dealt with.

[94]The respondent did not uphold the grievance allegations regarding the claimant being forced to travel to Rochdale. The Tribunal had heard evidence that the claimant had no difficulties with going to Rochdale in principle but wanted to do so on a Monday for car share purposes but that this was flatly refused by Jared without any justification or reason being given and without him consulting HR about it.

[95]The letter indicated the allegation around non-compliance with the capability policy was also partly upheld. Karen Southern had complied with the informal part of the policy but Jared did not. He had gone straight to a formal stage without consulting HR. Also, once the claimant went on sick leave there was very little management contact with her and the respondent fell short of expected standards in those circumstances.

[96]The outcome made recommendations about the lack of management engagement with HR, particularly when planning organisation change; about training needs for the management team; and about further work needed regarding managing stress within the department.

[97]Most of the grievance recommendations were directed at the respondent’s organisation as a whole rather than to the claimant's own specific circumstances. The claimant started her new employment elsewhere on 3 January. Case No. 2403401/2023 23 The Applicable Law Unfair dismissal98. Employees with qualifying service have a right not to be unfairly dismissed. Section 95 Employment Rights Act 1996 addresses the concept of dismissal. A dismissal includes where (section 95(1)(c): “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

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

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

[1997] ICR 606

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

The Applicable Law

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

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

[103]A dismissal may nevertheless be found to be a fair dismissal if the respondent can show that the reason for dismissal was one of the potentially fair reasons permitted by the statute. In the context of a constructive dismissal, the Tribunal will be concerned with the reason, or principal reason, for the fundamental breach of contract. If a potentially fair reason for dismissal is established, then Case No. 2403401/2023 24 the Tribunal will go on to consider whether the dismissal was fair, applying the range of reasonable responses test to both the substance of the dismissal and the procedure adopted by the respondent. The Tribunal will consider whether, applying the test of fairness in section 98(4), the respondent acted reasonably in all the circumstances in treating that reason as sufficient reason to dismiss the claimant. The respondent in this case did not seek to argue that there was a fair reason for any dismissal, rather that there was no constructive dismissal in the first place. Section 20/21: reasonable adjustments.

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

(2) The duty comprises the following three requirements.

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

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

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

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

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

(3) …

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

2008 ICR 218

and is as follows: Case No. 2403401/2023 25(a) Identify the PCP applied by or on behalf of the employer,

(b) Identify comparators (if necessary),

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

[108]In Ishola v Transport for London

[2020] EWCA Civ 112

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

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

[110]Only once the Employment Tribunal has gone through the steps in Rowan will it be in a position to assess whether any adjustment is reasonable in the circumstances of the case, applying the criteria in the EHRC Code of Practice. The test of reasonableness is an objective one. The effectiveness of the proposed adjustments is of crucial importance. Reasonable adjustments are limited to those that prevent the PCP from placing a disabled person at a Case No. 2403401/2023 26 substantial disadvantage in comparison with persons who are not disabled. Thus, if the adjustment does not alleviate the disabled person’s substantial disadvantage, it is not a reasonable adjustment. (Salford NHS Primary Care Trust v Smith [2011] EqLR 1119) However, the threshold that is required is that the adjustment has ‘a prospect’ of alleviating the substantial disadvantage. There is no higher requirement. The adjustment does not have to be a complete solution to the disadvantage. There does not have to be a certainty or even a ‘good’ or ‘real’ prospect of an adjustment removing a disadvantage in order for that adjustment to be regarded as a reasonable one. Rather it is sufficient that a tribunal concludes on the evidence that there would have been a prospect of the disadvantage being alleviated. (Leeds Teaching Hospital NHS Trust v Foster [2011] EqLR 1075.

[111]Where the disability in question means that an employee is unable to work as productively as other colleagues, adjustments to enable her to be more efficient would indeed relate to the substantial disadvantage she would otherwise suffer (Rakova v London Northwest healthcare NHS trust

[2020] IRLR 503

. It cannot be assumed that a desire to achieve greater efficiency does not reflect the suffering of a substantial disadvantage. The fundamental question is what steps it was reasonable for the respondent to have to take in order to avoid the particular disadvantage not what ought ‘reasonably have been offered.’

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

[113]An employer can satisfy the duty to make reasonable adjustments even if the adjustments adopted are not the adjustments preferred by the employee (Garrett v Lidl Ltd UKEAT/0541/0). Burden of Proof

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

[115]The wording of section 136 of the Act should remain the touchstone.

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

2005 ICR 931

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

2007 ICR 867

; and Hewage v Grampian Health Board

2012 ICR 1054

. Case No. 2403401/2023 27

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

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

[2003] ICR 1205

(as adjusted) can be summarised as: a) It is for the claimant to prove, on the balance of probabilities, facts from which the Employment Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. If the claimant does not prove such facts, the claim will fail. b) In deciding whether there are such facts it is important to bear in mind that it is unusual to find direct evidence of discrimination. In many cases the discrimination will not be intentional. c) The outcome at this stage will usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. The Tribunal does not have to reach a definitive determination that such facts would lead it to conclude that there was discrimination, it merely has to decide what inferences could be drawn. d) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. These inferences could include any that it is just and equitable to draw from an evasive or equivocal reply to a request for information. Inferences may also be drawn from any failure to comply with the relevant Code of Practice. e) When there are facts from which inferences could be drawn that the respondent has treated the claimant less favourably on a protected ground, the burden of proof moves to the respondent. It is then for the respondent to prove that it did not commit or, as the case may be, is not to be treated as having committed that act. To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that its treatment of the claimant was in no sense whatsoever on the protected ground. f) Not only must the respondent provide an explanation for the facts proved by the claimant, from which the inferences could be drawn, but that explanation must be adequate to prove, on the balance of probabilities, that the protected characteristic was no part of the reason for the treatment. Since the respondent would generally be in possession of the facts necessary to provide an explanation, the tribunal would normally expect cogent evidence to discharge that burden. Case No. 2403401/2023 28

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

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

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

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

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

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

[2003] ICR 337

.) The Employment Tribunal Case No. 2403401/2023 29 should examine whether or not the issue of less favourable treatment is inextricably linked with the reason why such treatment has been meted out to the claimant. If such a link is apparent, the Tribunal might first consider whether or not it can make a positive finding as to the reason, in which case it will not need to apply the shifting burden of proof rule. If the Tribunal is unable to make a positive finding and finds itself in the situation of being unable to decide the issue of less favourable treatment without examining the reason, it must examine the reason (i.e. conduct the two stage inquiry) and it should be for the employer to prove that the reason is not discriminatory, failing which the claimant must succeed in the claim.

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

[2007] IRLR 579

. Time limits

[126]In a discrimination claim the Tribunal must apply the test in section 123 Equality Act and consider whether the claim was made within the time limit. The Tribunal will decide whether the claim was made to the Tribunal within three months (allowing for any early conciliation extension) of the act to which the complaint relates. If not, was there conduct extending over a period? If so, was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the end of that period? If not, were the claims made within such further period as the Tribunal thinks is just and equitable?

[127]The relevant portions of section 123 Equality Act 2010 state:(1) Subject to …… a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable. Case No. 2403401/2023 30

(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[128]Where the act of discrimination consists of a failure to do something (e.g. a failure to make reasonable adjustments under section 20), the failure is treated as occurring when the person in question 'decided on it' (section 123(3)(b)). For limitation purposes, the date of such a 'decision' is, in the absence of evidence to the contrary, treated as either the date when the respondent does an act inconsistent with doing the omitted act, or (if there is no such inconsistent act) the expiry of the period in which he might reasonably have been expected to do it (section 123(4)).

[129]In the case of a disability discrimination claim, where the act complained of consists of a failure to make reasonable adjustments under section 20, and the start of the limitation period falls to be determined in accordance with section 123(4)(b), the calculation of this date involves carrying out an investigation into the period during which the respondent might reasonably have been expected to make the adjustments in question and deciding on the date when that period ended, as that will be the date which will be treated as the beginning of the limitation period. However, that date is not to be equated with the date when the respondent's breach of duty began, for not only is that not the date to which s 123(4)(b) refers but it could well be unfairly prejudicial to the claimant (see Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

[2018] IRLR 1050

[130]In Matuszowicz v Kingston upon Hull City Council

[2009] IRLR 288

the Court of Appeal held that a failure to make reasonable adjustments is an omission, not an act, and that omission may be either deliberate or inadvertent, (i.e. it may be due to lack of diligence, competence or any reason other than conscious refusal.) In either case, para (4) applied. So, if an employer has not done an act inconsistent with making a reasonable adjustment (which would set time running under para (4)(a)), there must be an enquiry by the tribunal under para (4)(b) as to when he might reasonably have been expected to make the necessary reasonable adjustments. That date will be treated as the start date for the bringing of the claim.

[131]Under section 123, a tribunal is empowered to grant an extension of time if it considers that it is 'just and equitable' to do so. The Tribunal will consider why the complaints were not made to the Tribunal in time and, in any event, whether Case No. 2403401/2023 31 it is just and equitable in all the circumstances to extend time. The onus is on the claimant to show why the Tribunal should extend time to allow her claims to proceed. It is not a ‘given’. There is no presumption in favour of granting an extension of time. The exercise of the discretion is the exception rather than the rule. The time limits are there for a reason and the starting point is that they should be complied with (see Robertson v Bexley Community Care

[2003] IRLR 434

[132]The ‘just and equitable’ extension is a broader and more flexible test than the ‘reasonable practicability’ test. The factors set out in in section 33(3) of the Limitation Act 1980 may be of assistance (British Coal v Keeble and ors

[1997] IRLR 336

). That provides some guidance, albeit it is not to be used as a mechanistic ‘checklist’. The Tribunal is not required to adhere to it rigidly or slavishly (Southwark London Borough Council v Afolabi [2003] 800). Section 33(3) of the Limitation Act sets out the following factors: “(a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11[, by section 11A][, by section 11B] or (as the case may be) by section 12; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

[133]It is particularly relevant to consider the length of and reasons for the delay and the balance of prejudice to each respective party caused by granting or refusing the extension of time. Whilst the absence of an explanation for the delay is not determinative, it is a factor with significant weight. The Tribunal would usually expect to see an explanation as to why the claimant did not present the claim within the relevant time limit.

[134]Prejudice is an important but not determinative factor (Miller v Ministry of Justice

UKEAT/0003/15

). In Miller two types of prejudice which a respondent may suffer if the limitation period is extended were identified. The first is the obvious prejudice (including the cost and trouble) of having to meet a claim which would Case No. 2403401/2023 32 otherwise have been defeated by a limitation defence, and the second is the 'forensic prejudice' which may be suffered if the limitation period is extended by many months or years, caused by such things as fading memories, loss of documents and losing touch with witnesses. The former type of prejudice will arise in every case. Extending time will always oblige a respondent to go to the time and expense of defending a case on its merits and the respondent is exposed to the risk of losing. Not extending time will always deprive a claimant of having their complaint adjudicated on its merits and the chance of being awarded compensation or another available remedy if successful. As to the latter, forensic prejudice, it was said in Miller that where it exists this will be 'crucially relevant' in the exercise of the discretion, telling against an extension of time, and it may well be decisive. However, the converse does not follow: if there is no forensic prejudice to the respondent, that is not decisive in favour of an extension and depending on the tribunal's assessment of the facts, may well not be relevant at all; it will depend on the way the tribunal sees the facts. In Adedeji v University Hospitals Birmingham NHS Foundation

[2021] EWCA Civ 23

, the Court of Appeal considered that a respondent would suffer prejudice if the evidence might be less cogent because of a late claim but also, even where there was no effect on the cogency of evidence, if allowing the claim in by extending time would 'have the effect of requiring investigation of events which took place a long time previously' this too would be relevant to whether time should be extended or not.

Conclusions

[135]The Tribunal took its findings of fact and applied the relevant legal principles to them in order to come to its conclusions in the case. The Tribunal worked through the agreed List of Issues and the conclusions are set out below referring to that List of Issues and the paragraph numbering from that document. Unfair Dismissal

[136]In the claimant’s unfair dismissal claim there are five alleged breaches that are said to amount collectively to a breach of the implied term of mutual trust and confidence in the claimant's case. That is how she puts her case.

[137]Paragraph 2.1.1 of the List of Issues refers to the respondent making accusations that the claimant was failing to properly manage various elements of her role (of which examples are given). Some of this refers to poor management by the claimant, which is alleged to have led to staff leaving.

[138]The Tribunal’s findings indicate that the respondent did apparently make those accusations. We do not know, based on the available evidence, whether they were well-founded or not. There is some evidence before us to suggest that the claimant would have been able to rebut the specific allegations if she had been given an opportunity to do so. This is particularly so in relation to the Case No. 2403401/2023 33 allegation which sought to hold the claimant responsible for staff leaving. This seems to have been a bigger problem for the respondent across the board rather than just being attributable to the claimant's individual management style or way of performing her role. Recruitment and retention of staff was a problem which was not confined to the workforce managed by the claimant.

[139]However, the Tribunal cannot say, based on the evidence we have heard, that these were not concerns which were legitimately and genuinely held by the respondent. We cannot say that the respondent did not have reasonable and proper cause to raise the issues with the claimant. That is relevant to whether this can form part of a breach of the implied term of mutual trust and confidence. In order for it to be a breach of the implied term of mutual trust and confidence, the respondent has to act ‘without proper cause’ and in such a manner as is calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence.

[140]What we conclude about the allegation at paragraph 2.1.1 is that the way that the concerns were raised was not particularly appropriate but if they were potentially legitimate concerns for the respondent to raise, they cannot be a breach of the implied term of mutual trust and confidence. We cannot say that the respondent acted without proper cause. It was legitimate for the respondent to raise performance concerns with the claimant if it had them. So, that aspect of the claim falls away.

[141]Paragraph 2.1.2 refers to the claimant being put on informal performance management. The Tribunal has found that the way this was handled by the respondent initially was poor. However, eventually it was dealt with appropriately and successfully signed off. The claimant passed the informal performance management process. The Tribunal’s conclusion is that the initiation of the process (and the way that this was handled) would not amount to a fundamental breach of contract in itself. It was not a breach of the implied term of mutual trust and confidence but it was the start of a pattern of behaviour (in terms of the respondent’s communications with the claimant) and it perhaps sowed the seeds for the subsequent relationship difficulties between the parties. The claimant (although she moved on from it) was still able to recall the way that the meeting was handled. This would still be relevant to her in her future dealings with her employer and would colour the way she viewed her employer and the way it dealt with her. So, the issue at paragraph 2.1.2 was relevant but was not sufficient to form the basis for a breach of the implied term itself.

[142]The same cannot be said for the issue at paragraph 2.1.3. At paragraph 2.1.3 it was alleged that the incorrect process was used to inform the claimant about being put on to the formal performance management procedure, with interim removal from her post. The evidence suggests that this was handled inappropriately by Jared. The claimant was effectively ambushed when she thought that she was returning to work after sick leave. Indeed, the tone and content of the 11 April meeting bore greater similarities to a disciplinary suspension than to a performance management process, which is usually supposed to be a supportive measure which is at least supportive in tone. Case No. 2403401/2023 34

[143]As the grievance outcome noted, Jared totally ignored the informal stage of the procedure. He ignored the fact that the last time that concerns had been raised, the claimant had been able to successfully complete the informal counselling/informal stage of the procedure. Given this, the Tribunal cannot see that there was reasonable justification for ignoring informal performance management and going straight to the formal procedure. Instead, Jared ‘leapfrogged’ straight to the formal stage of the process. He did not appear to consider whether an informal procedure was sufficient to meet the concerns or whether it was the appropriate way to deal with the claimant in all the circumstances. Even if the respondent was justified in going straight to the formal stage of the process, this should have been handled in a different way that gave the claimant fair warning and a fair procedure. Instead, the way it was dealt with set the claimant up to ‘stew on it’ and to worry about it. This did a significant amount to damage the relationship between the parties. Trust was damaged. The Tribunal finds that, taken on its own, this could be considered to be a fundamental breach of the contract. Even if the respondent had legitimate performance concerns, the way that this was handled was inappropriate. Indeed, the Tribunal was left unconvinced as to the force in the performance concerns given the lack of evidence of underperformance which was collated and presented by the respondent to the Tribunal during the hearing.

[144]The Tribunal moved on to consider paragraph 2.1.4. This refers to the delay and mishandling of the grievance. The Tribunal refers back to the chronology of inaction and mishandling which is set out in the findings of fact. The delay was significant and unjustified. The claimant was left at home unsupported. The correspondence indicates that she had to take the initiative. She had to keep pushing the respondent to sort things out and to find out what had gone wrong (for example, in relation to the Occupational Health referral.) In fact, the claimant had to write to the Chief Executive to try and get some progress. The longer that the claimant had to sit and wait for the respondent to make good on its commitment to go through a process, the more her trust and confidence in the respondent was undermined. This is set against the backdrop of the way the respondent had previously handled her before her sickness absence and the way that the meeting on 11 April was conducted. The way that the grievance was handled and the associated delay was a fundamental breach of contract. It was a breach of the implied term of mutual trust and confidence and it entitled the claimant to resign. The relationship of mutual trust and confidence was seriously damaged/destroyed.

[145]In relation to paragraph 2.1.5, that refers to the respondent’s failure to fully uphold the claimant's grievance. It is referred to as a last straw. The Tribunal can make some criticisms of the actual grievance outcome but, given the number of parts of the grievance which were upheld, we cannot consider it to be a breach of contract in itself. However, the problem here is that the damage had already been done to the relationship. The Tribunal also noted that this was also irrelevant in terms of the issue of causation. The outcome of the grievance was only produced after the claimant had already decided to resign. It is, therefore, not causally relevant to the constructive dismissal. Case No. 2403401/2023 35

[146]Proceeding through the List of Issues at paragraph 2.2, the Tribunal has found that there was a repudiatory breach of contract. Some damage was done by the respondent’s conduct in relation to paragraph 2.1.2 but its actions, as found at paragraphs 2.1.3 and 2.1.4, were fundamental breaches, either individually or cumulatively. The respondent had breached the implied term of mutual trust and confidence. The respondent’s conduct was ‘calculated or likely to evince an intention on the part of the respondent not to be bound by the implied term of mutual trust and confidence’ (as it was phrased in the parties’ list of issues.)

[147]The Tribunal then considered the question posed at paragraph 2.3. Did the claimant resign in response to that breach or for some other reason (such as the obtaining of a new role)? As a matter of law, the repudiatory breach of contract need only be ‘an effective cause’ of the resignation. It does not have to be the sole cause. The Tribunal finds, on the basis of the evidence before us, that the breach of contract was an effective cause of the claimant’s resignation. It passes the relevant threshold. In reality, we find that the claimant would not have looked to leave her employment with the respondent but for the way that her formal capability procedure was announced and the way that the grievance was mishandled and delayed. The fact that she had another job to go to is more relevant to the timing of the effective date of termination (i.e. she dovetailed the end of one job with the beginning of another). It does not mean that the breach of contract did not cause the resignation itself. Therefore, the necessary causation link is established.

[148]The Tribunal then moved on to paragraph 2.4. Did the claimant wait too long to resign and thereby affirm the contract? Passage of time on its own does not automatically mean affirmation. We have to look at both the length of time and what was actually going on during that period of time. The effective resignation decision was made in November with an effective date of termination after the period of notice in January. Given the relevant chronology of events, taking until November to make a formal decision is not too long in all the circumstances. The claimant is not affirming the contract just by staying a little while and waiting to see what (if anything) will happen in relation to the outstanding procedures. The claimant was, to all intents and purposes, continuing under protest. She was off work on sick leave, she was waiting for Occupational Health, and she was waiting for a grievance procedure that (it became increasingly clear) was not going to be resolved quickly. The claimant chased the respondent during the summer and the autumn to try to get some movement and resolution without any substantive success. The claimant had not affirmed the contract by giving the respondent the chance to try and sort out the Occupational Health report and the grievance properly. The claimant waited for the respondent to sort this out and when she realised that this was not going happen, she went elsewhere for employment, for the good of her own health.

[149]In light of the above we find that the claimant was constructively dismissed. The respondent does not argue that it was a fair dismissal and therefore the unfair dismissal claim succeeds and is upheld. Case No. 2403401/2023 36 Reasonable Adjustments

[150]The Tribunal then moved on to consider the reasonable adjustments claim. Again, we referred to the List of Issues. Paragraph 5 dealt with the provisions, criteria or practices (“PCPs”) relied upon.

[151]Paragraph 5.1.1 referred to a requirement to work long and/or extra hours. We have set out (in our findings above) the requirements which were placed on the claimant and which included working into the evening, working to 5.00pm on a Friday, extending beyond her core hours (until 4.00pm) to be available up until 5.00pm, and being told that she was expected to work longer hours when she was employed at a Band 7 Level of seniority. In the circumstances the Tribunal accepts that that this PCP has been proved. We further accept that it could or would be applied to someone other than the claimant in similar circumstances so as to amount to a PCP. It was not a ‘one off’ or applicable solely to the claimant so as to be incapable of amounting to a PCP within the meaning of the Act.

[152]Likewise, at 5.1.2 the claimant was being held accountable for issues that the claimant says were not her responsibility. What we mean by that is that allegations were being made about the claimant's performance whereas there was at least some evidence that the department was understaffed. The respondent evinced an intention to go through performance management with the claimant and effectively laid charges against her in this respect. The claimant says she had a full defence to the allegations, either on the basis that the factual allegations could not be proven or on the basis that they were matters that were outside of her responsibility. The claimant never got a chance to prove her defence one way or the other but the charges were never dropped either. So, in those terms the PCP, as drafted, was proven. The claimant was being held accountable as alleged at 5.1.2. The respondent’s approach seems to have been that the claimant was a manager, things happened in her department ‘on her watch,’ and she was responsible for them, whereas the claimant says that she was not responsible for them. The practice appears to have been to hold the manager responsible for underperformance within the department and to expect them to take responsibility for all such matters within the department, irrespective of any blame which could be safely attributed to them individually or personally. This could or would happen to another Band 7 in a failing department. It has the necessary element of potential repetition. Consequently, we accept that this was a PCP and that has been established in this case.

[153]Paragraph 6 (the issue of substantial disadvantage) caused some difficulties because of the way it is drafted. It refers to ‘diminished working life as opposed to a non-disabled person who may not be adversely affected by any delay in implementing recommendations from Occupational Health.’

[154]We are not sure, having heard the evidence, that the reference to a delay in Occupational Health is really to be considered as part of the substantial disadvantage rather than as something which should be referred to at a later Case No. 2403401/2023 37 stage of the legal test. In our view paragraph 6(a) can be interpreted in two different ways.

[155]Firstly, option 1, is to delete the section after “disabled person” so that the substantial disadvantage is that the claimant had a ‘diminished working life’ as opposed to a non-disabled person.

[156]If that is the correct interpretation then the Tribunal accepts that the two PCPs increased the claimant's symptoms, made it harder for her to do her job and made it more fatiguing for her as compared to the situation that a non-disabled person would find themselves in. In those circumstances both PCP1 and PCP2 put the claimant at that substantial disadvantage. She had a diminished working life as compared to a non-disabled person.

[157]The second option would be to retain the reference to Occupational Health and use it as a way to elaborate upon the comparator’s identity. For example, the claimant in this case is disabled and has an Occupational Health report which has been delayed in its implementation. She stands to be compared with a non-disabled person who also has an Occupational Health report which has been delayed in its implementation. Because of the claimant's condition the PCPs would still increase her symptoms, her fatigue, her stress and her difficulty in complying with the requirements of her job role as compared to the non-disabled comparator. Thus, even framed in this way the substantial disadvantage is established and the next stage of the test falls to be considered (i.e. paragraph 7 in the List of Issues.)

[158]Did the respondent know, or could it reasonably have been expected to know, that the claimant was likely to be placed at the disadvantage by the PCPs? Given all the evidence that we have heard, we have to conclude it should have been apparent to them that this would be the case, and that aspect of the claim is established.

[159]The Tribunal then considered the proposed reasonable adjustments. There are two things for the Tribunal to consider here. Firstly, whether the adjustments contended for are adjustments that could and should have been made and, secondly, when they could and should have been made.

[160]Dealing with the substance of the adjustments, paragraph 8.1.1 is phrased as “not actioning the recommendations from Occupational Health”. What it actually means in substance is that the claimant is saying that the respondent should have implemented the Occupational Health recommendations. The Tribunal is satisfied that speech recognition software would have reduced the claimant’s pain/fatigue and would have speeded up her work. Workstation assessments would similarly have assisted. Assessing and providing suitable seating for the claimant to use when away from her desk would, again, have assisted. (The car park issue was dealt with.) Flexibility in working practices could also have assisted with symptoms and performance. Each of these recommendations had a reasonable prospect of helping to alleviate the claimant’s substantial disadvantage. In the circumstances, the Tribunal Case No. 2403401/2023 38 considered that the adjustment contended for at paragraph 8.1.1 would be a reasonable one for the respondent to make.

[161]Likewise, the personal workplace assessment (paragraph 8.1.2). No such assessment was carried out. The purpose of the PWAP is set out in the policy. If it had been provided it would have flagged up what the claimant needed and was entitled to without the claimant having to argue and justify this. In the circumstances of this case, we would have considered that a reasonable adjustment to make to alleviate the disadvantage.

[162]Paragraph 8.1.3 refers to ‘failing to understand or deal with compassion with regards to disability restrictions.’ On the facts of this case, an example would be the respondent being very dogmatic about when the claimant had to go to Rochdale for work. As set out above, she was not allowed to go on a Monday (when she was able to make travel arrangements). Further, the respondent removed the claimant’s early finish on a Friday. The respondent failed to ask the claimant about the adjustments at her workplace and did not check what equipment she had, whether she had what she needed etc. The respondent failed to discuss the Occupational Health report or tell the claimant what was going to happen next regarding the implementation of its recommendations. The respondent did not really take the claimant seriously about that and it displayed a lack of respect towards the claimant in that regard. Likewise, the respondent did not do risk assessments when the department moved to an office on the third floor. These are all aspects or facets of a failure to understand or deal with compassion with regards to disability restrictions and make reasonable adjustments in line with paragraph 8.1.3.

[163]The difficulty we have with this part of the case (and why this discrimination claim does not succeed) is the time limit issue. This is a jurisdictional matter. The Tribunal cannot ignore it. A claimant must bring a claim to the Tribunal within three months of the relevant incident of discrimination (taking due account of the early conciliation process.) The reasonable adjustments that the claimant refers to in this case relate to omissions or failures to act. The law gives us principles that we have to implement in order to determine when the duty arises and when the time limit starts to run. The relevant section is section 123 of the Equality Act 2010. At section 123(3)(b) we are told that for time limit purposes: “Failure to do something is to be treated as occurring when the person in question decided on it.”

[164]First of all, we looked to see if there was actually a conscious decision made by one of the people within the respondent organisation to not do what we think they should have done, particularly in relation to Occupational Health or the PWAP. The difficulty is that the evidence in the case does not suggest that anyone did make a conscious decision not to comply. There was inactivity; there was disregard, lack of consideration, putting matters on the backburner- all things that are less than deliberate, less than conscious. So, we considered that section 123(3)(b) did not assist us. Case No. 2403401/2023 39

[165]The law then asks us to consider another part of the Equality Act 2010. Section 123(4) states: “In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something –(a) when P does an act inconsistent with doing it; or

(b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”

[166]The Tribunal took that in stages. First of all, could we find evidence of the respondent doing an act which was clearly inconsistent with an intention to comply with a duty to make reasonable adjustments? We did take a considerable amount of time to look for this to see if we could find it, and unfortunately, we struggled and were ultimately unsuccessful. We could not pin down a point in time where the respondent behaved in a way that gave a clear message that they were not going to comply and do as they should. We could not identify a stage where the respondent was doing something opposite or inconsistent with complying with the duty to make adjustments. As much as anything, it was a lack of action and a lack of consideration.

[167]Then section 123(4) asks us to consider when the respondent might reasonably have been expected to make the reasonable adjustments, what is the last date on which they might reasonably have been expected to implement the adjustments?

[168]All of the adjustments that we were considering related to the period of time when the claimant was still at work, before she went off on sick leave. They are tied-in to the Occupational Health report which was received in September 2021. There was a change of line manager in November 2021, so it might be expected that there would be a delay whilst that person settled into the role and got to grips with what Occupational Health adjustments or other adjustments were required. There was also a change of office location in December 2021. This meant that there might be some leeway to be given to the respondent at that point. Taking everything in the round, we found that it was really in the early part of 2022 that the respondent’s managers might reasonably have been expected to do something to comply with their duty to make reasonable adjustments. Certainly, the clearest date that we could identify was the meeting on 16 February. By that point it had come to the respondent’s managers’ attention that there were performance issues but they were also aware of the claimant's disability and of the recommendations that had previously been made. At this point (if not before) they ought to have acted on their duty to make reasonable adjustments. The claimant then stopped work in the March and did not return to work.

[169]The Tribunal then looked to see if there were any later breaches of the duty to make reasonable adjustments which could form part of a continuing act which would continue beyond February and which would stop the statutory time limit Case No. 2403401/2023 40 from running. We struggled to find something. The reality was that, after the claimant left work in March, the problems she faced were just the ongoing effects of the respondent’s earlier breaches of the duty to make reasonable adjustments. They were not fresh or additional breaches of that legal duty. They did not reset the position so as to prevent the time limit from running out. The Tribunal could not locate an ‘act extending over a period’ which ended within the time limit. Unfortunately, the claim was not presented to the Tribunal within the time limit.

[170]The claim form was presented to the Tribunal on 12 March 2023. Using our findings in this case the limitation ‘clock’ started running on 16 February. Three months on from 16 February ends on 15 May 2022. The claimant did not enter into early conciliation until 2023. Early Conciliation therefore did not operate to extend the time limit. This means that the claim was presented nearly ten months late/out of time.

[171]The Tribunal then considered whether it would be just and equitable to extend the time limit in order to consider the case in any event. The Tribunal has to apply established principles to decide that point.

[172]We considered that we needed to be shown that there was a good reason for us to extend time on a just and equitable basis. There needed to be a proper basis for the Tribunal to do this. The Tribunal could not just start from the position that it was just and equitable. We needed to be provided with some basis on which to be persuaded that we should exercise our discretion in favour of the claimant. We looked at the available evidence that we had heard about what was going on during the relevant period, what the claimant's circumstances were and what explanation there was for the delay.

[173]There was no real or clear explanation as to why the claim form was not presented to the Tribunal earlier. The likelihood is that the claimant was waiting whilst she was still employed by the respondent and then decided to present her discrimination claim at the same time as the claim in relation to constructive unfair dismissal. That was the only potential explanation we could potentially identify.

[174]The Tribunal considered the Keeble factors. The delay in this case was of a significant length. In the context of a three-month time limit it was more than three times the statutory time limit. There was no clear reason for the delay. We know that the claimant was off work on sick leave and is disabled but she was well enough during that sickness absence to raise a grievance and to chase it up. Her health did not explain the delay. We also noted that the claimant was represented by a trade union throughout the period. They could have provided her with any necessary legal advice about time limits so that she could make a fully informed decision about when to present her claim.

[175]On the other hand, we have to look at the cogency of the evidence in the case and consider what impact the delay in presenting the claim has had on the evidence available on both sides (from the claimant and the respondent). The difficulty with this case is that much of the evidence was based on the Case No. 2403401/2023 41 recollections of the witnesses. It was not a case where everything was documented contemporaneously. The longer the delay in presentation of the claim, the more that a witness’s recollection is likely to fade and the cogency of the evidence that they can give is likely to diminish. That had an adverse effect on the claimant's ability to bring the claim but also, particularly, on the respondent’s ability to defend itself against the claim. Indeed, one of the respondent’s significant witnesses (Jared) had left employment since the events that were under consideration.

[176]We also consider whether the respondent did anything to hamper the claimant from bringing the claim within the time limit. The respondent did nothing to prevent the claimant complying with the time limit. The Tribunal also noted that the claimant had access to trade union representation and that such representatives could have provided advice in relation to such matters as time limits and the potential to bring a discrimination claim.

[177]The Tribunal had to weigh up the balance of prejudice in deciding whether it would be just and equitable to extend the time limit for the reasonable adjustments claim. We regret to conclude that the balance of prejudice on this occasion favours the respondent such that we decline to extend the time limit for the discrimination claim. Unfortunately, the claimant waited too long before presenting the discrimination claim to the Tribunal and the Tribunal felt unable to extend the time limit and uphold the claim. The reasonable adjustments claim therefore fails and is dismissed.