D Wainwright v Department for Work and Pensions: 2403638/2022

EMPLOYMENT TRIBUNALS

Case No 2403638/2022

Between

D WainwrightClaimant

Department for Work and PensionsRespondent

Before

Employment Judge Batten

In person for claimant

J Hurd (instructed by Counsel) for respondent

Date 6 May 2025

JUDGMENT

The judgment of the Tribunal is that the claims of unfair dismissal and of disability discrimination are not well-founded and are dismissed. JUDGMENT having been sent to the parties on 9 June 2025 and written reasons having been requested in accordance with Rule 60(3) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:

REASONS

[1]By a claim form submitted on 24 May 2022 following early conciliation commencing on 16 March 2022, with a certificate issued on 25 April 2022. The claimant originally brought her claim against the respondent and also against 4 individual respondents, namely Christine Corcoran, Sharon Lindley, Paul Elder and Julie Whelan Cooper. However, the claims against the 4 individual respondents were dismissed upon withdrawal on 31 May 2023.

[2]The respondents presented a joint response on 28 June 2022. On 17 December 2022 an amended response was served, and a further amended response was served on 5 March 2024.

[3]There have been 6 case management preliminary hearings, the fifth of which, held on 6 February 2024, drew up an agreed list of issues for determination at the final hearing. The final hearing itself was first listed for 3 days, on 6 – 8 November 2023, and then re-listed for 10 days, from 25 April to 8 May 2025. The listing was subsequently reduced to 7 days, to deal with liability only, before a full Tribunal. However, in the week before the final hearing, one of the non-legal members was incapacitated. The Tribunal was unable to identify an alternative non-legal member from the relevant panel at short notice, for a 7-day case, and so the hearing was converted to be conducted by a Judge sitting alone. Further, due to the emergency closure of the Manchester Employment Tribunal in early April 2025, this hearing was relocated to and held at the Immigration and Asylum Tribunal centre, in Picadilly Gardens, Manchester. Reasonable adjustments

[4]On 20 April 2025, the claimant sent an email to the Tribunal about reasonable adjustments for the final hearing. The claimant’s requests were discussed and agreed at the beginning of this hearing and have been implemented as follows:a. frequent breaks were taken in the course of the hearing;

b. the claimant requested understanding throughout the hearing of the physical, neurological and cognitive toll of the proceedings on her and the unpredictability of her symptoms;

c. ergonomic or comfortable seating was supplied;

d. the claimant was afforded access to a quiet space, in a reserved and separate conference waiting room, before and after the hearing and in the adjournments;

e. a friend/supporter attended each day to accompany and assist the claimant;

f. flexibility with the start and finish times of the hearing each day was observed;

g. the claimant had access to toilet facilities nearby;

h. ambient lighting adjustments were made;

i. the claimant wore her own comfortable clothing and footwear; and

j. the claimant had her medication and electrolyte drink in the hearing .

Evidence

[5]The Tribunal was provided with an agreed bundle comprising 1,625 pages. The claimant brought 5 additional documents, of which 4 were found to be in the bundle already, whilst the fifth was added as pages 1,626 and 1,627.

[6]The Tribunal was given a witness statements from the claimant which was 64 pages long and very detailed.

[7]For the respondent, witness statements were tendered by: Christine Corcoran, Team Leader and the claimant’s Line Manager until Ms Corcoran’s retirement in June 2021; Julie Whelan Cooper, a Senior Executive Officer, who was in a Customer Services leadership Role from 22 July 2021 to 13 January 2022; and Paul Elder, Project Delivery Manager, who was also the Blackpool Job Centre Manager and the claimant’s line manager from the end of November 2021 until the claimant left in February 2022. Unfortunately, Mr Elder was unable to attend the hearing to give oral evidence due to being signed off work, on long term sickness. The Tribunal was provided with fit notes that confirm the position. In the absence of Mr Elder, Helen Spear, HR Business Partner attended to give evidence, in effect in place of Mr Elder as she had attended a number of the relevant meetings and could give evidence about them in Mr Elder’s absence.

[8]The respondent also produced a chronology which was agreed save that the claimant disputed the date she started working from home. The chronology had 19 November 2020, whilst the claimant said it was 23 November 2020

[9]In addition, the Tribunal was given a cast list and an organogram to show the reporting/supervision lines and where in the respondent’s hierarchy the individuals concerned were placed.

[10]After the conclusion of the oral evidence, Counsel for the respondent produced written closing submissions which he spoke to at length, following which the claimant summed up her case and also responded to a number of points made by the respondent’s Counsel.

The issues to be determined

[11]A list of issues had been agreed at the case management preliminary hearing on 6 February 2024. At the commencement of the final hearing, the Tribunal discussed the list of issues with the parties. After amendment, it was agreed that the complaints and issues to be determined by the Tribunal were as follows:1.1 Given the date the claim form was presented and the effect of early conciliation, any complaint about something that happened before 17 December 2021 may not have been brought in time.

1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the act to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within such further period as the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time? Constructive unfair dismissal (ERA section 98) Dismissal

2.1 Can the claimant prove that there was a dismissal?2.1.1 Did the respondent do the following things:2.1.1.1 Failing to investigate the claimant’s grievance.

2.1.1.2 Telling the claimant her salary will be reduced to half pay from 03.02.2022, even though the respondent had failed to put reasonable adjustments in place.

2.1.1.3 Continuing with the attendance management policy, keeping in touch and attendance management meetings, without the respondent making reasonable adjustments.

2.1.1.4 Continuing to put the claimant at risk from a Covid infection from 17.03.2020 contrary to the Health and Safety at Work Act etc, 1974.

2.1.1.5 Failing to make reasonable adjustments as particularised at paragraph 7 (below).

2.1.1.6 Subjecting the claimant to alleged discrimination arising from disability as particularised at paragraph 6 (below).

2.1.2 Did that breach the implied term of trust and confidence? Taking account of the actions or omissions alleged in the previous paragraph, individually and cumulatively, the Tribunal will need to decide:2.1.2.1 whether the respondent had reasonable and proper cause for those actions or omissions, and if not

2.1.2.2 whether the respondent behaved in a way that when viewed objectively was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent.

2.1.3 Was the fundamental breach of contract a reason for the claimant’s resignation.

2.1.4 Did the claimant affirm the contract before resigning, by delay or otherwise? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach. Reason for constructive dismissal

2.2 Has the respondent shown the reason or principal reason for the dismissal if the claimant has been constructively dismissed?

2.3 Was it a potentially fair reason under section 98 Employment Rights Act 1996? Fairness

2.4 If so, applying the test of fairness in section 98(4), did the respondent act reasonably in all the circumstances in treating that reason as sufficient reason to dismiss the claimant?

2.5 Did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? [Section 3 = Remedy for unfair dismissal] Disability 4.1 Did the respondent know that the claimant had a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The respondent has accepted (by letter dated 15 April 2023), that the claimant was disabled by reason of her asserted conditions, ME, fibromyalgia, IBS. However, the respondent disputes that it had knowledge that the claimant was disabled at the material time. Harassment related to disability (EqA section 26)

5.1 Did the respondent do the following things:5.1.1 On 24.08.2020, Christine Corcoran said to the claimant: “Did you only do one activation call last week?” and “Well the others have done around 20”.

5.1.2 On 25.08.2020, Christine Corcoran said to the claimant: “Donna, you are always tired, you’ve been tired for years”.

5.1.3 On 27.08.2020, Christine Corcoran said to the claimant: “You can’t be tired forever.”

5.1.4 On 31.08.2020, when the claimant called in sick, Christine Corcoran said to the claimant: “Is it that you physically can’t do anything, or you don’t want to do anything?” and “Sometimes you have to push yourself to do things.”

5.1.5 On 07.09.2020, Christine Corcoran called the claimant and read out the OHS report dated 02.09.2020. She laughed and said, “We all do”, whilst reading the part of the report regarding the claimant having to lie down when getting home from work? Additionally, did she say, “sometimes you need to push yourself” and “Is it because you can’t or don’t want to?”

5.1.6 On 29.01.2021, Christine Corcoran said to the claimant when she said she will be getting a further fit note from 31.01.2021, “Why? You don’t need one, as you changed your hours and are working from home.”

5.1.7 On 21.07.2021, Sharon Lindley said “It’s probably an age thing,” when the claimant was trying to explain temperature deregulation with M.E.

5.1.8 On 21.07.2021, Sharon Lindley said to the claimant, “That’s in the past and we need to move forward from here and you seem to be dwelling on what has happened and we need to look to the future,” when the claimant was trying to explain how what has happened has affected and deteriorated her physical and mental health?

5.2 If so, was that unwanted conduct?

5.3 Was it related to disability?

5.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

5.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Discrimination arising from disability (EqA section 15)

6.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?

6.2 If so, did the respondent treat the claimant unfavourably in any of the following alleged respects:6.2.1 On 24/08/2020, Christine Corcoran challenged the claimant’s activation calls target.

6.2.2 On 07/10/2020, Christine Corcoran issued a DETP (Disabled Employee Trigger Point), then immediately issued the claimant with a First Written Warning letter.

6.3 Did the following things arise in consequence of the claimant’s disability:6.3.1 Severe fatigue arising from ME and Fibromyalgia, (the claimant relates this to 6.2.1)?

6.3.2 The claimant had a greater number of sick days than comparable non- disabled employees arising from ME and Fibromyalgia, (the claimant relates this to 6.2.2)?

6.4 Has the claimant proven facts from which the Tribunal could conclude that the unfavourable treatment was because of any of those things?

6.5 If so, can the respondent show that there was no unfavourable treatment because of something arising in consequence of disability?

6.6 If not, was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were:6.6.1 Ensuring the needs of the Respondent’s business and customers were met;

6.6.2 Ensuring continuity of service to customers while staff were working remotely;

6.6.3 Ensuring staff were capable of demonstrating satisfactory attendance levels; and

6.6.4 Ensuring the Respondent’s attendance policy and procedure was applied fairly and consistently with an appropriate accommodation for the Claimant’s disability.

6.7 The Tribunal will decide in particular:6.7.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

6.7.2 could something less discriminatory have been done instead;

6.7.3 how should the needs of the claimant and the respondent be balanced? Reasonable Adjustments (EqA sections 20 & 21)

7.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date? The claimant says by 7 July 2020 to 18 February 2022

7.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs:7.2.1 Attendance Management Policy Trigger Points (PCP1)

7.2.2 The requirement that work coaches must physically attend a Job Centre Plus office (PCP2)

7.2.3 Work coaches must interview customers in an open plan office (PCP3)

7.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that:7.3.1 More sickness absences than other employees?

7.3.2 The claimant struggled to get showered, dressed and ready for work. Unable to blow dry hair and apply make-up arising from extreme exhaustion. This made it difficult for her to commute and used up limited energy reserves.

7.3.3 A flare up in her symptoms arising from noise and bright lights in the office could also occur affecting the claimant’s ability to concentrate, affecting her memory recall, speech, writing and phone conversations. This could cause ME crash with increased risk of sickness absence.

7.4 Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?

7.5 Did the respondent fail in its duty to take such steps as it would have been reasonable to have taken to avoid the disadvantage? The claimant says that the following adjustments to the PCP would have been reasonable:7.5.1 From 7 July 2020, the claimant should have been given special leave until such time as the reasonable adjustments relied upon were put in place.

7.5.2 Disability leave to enable the claimant to attend and receive 6 ME treatments in and around December 2020 via the ME clinic so that the claimant did not make her hours up at work when attending those appointments.

7.5.3 Working from home for the duration of the material period in this claim.

7.5.4 Accessible toilet facilities with a key to the office from 7 July 2020.

7.5.5 Adjusted duties which would allow the claimant to work from home from 7 July 2020.

7.6 By what date should the respondent reasonably have taken those steps? The claimant says by 7 July 2020 [Section 8 = Remedy for discrimination]

Findings of fact

[12]The Tribunal has made the following findings of fact which are relevant to the issues to be determined, on the basis of the evidence before it, taking into account contemporaneous documents where they exist and the conduct of those concerned at the time. Where a conflict of evidence arose, this was resolved on the balance of probabilities.

[13]Having made findings of primary fact, the Tribunal considered what inferences it should draw from them for the purpose of making further findings of fact. The Tribunal has not simply considered each particular allegation, but has also stood back to look at the totality of the circumstances to consider whether, taken together, they may represent an ongoing regime of discrimination.

[14]The findings of fact relevant to the issues to be determined are as follows.

[15]The claimant was employed by the respondent from 22 September 2003 as an Executive Officer Work Coach. She was based at Leyland Job Centre Plus, in Lancashire, working 30 hours per week at the date when her employment ended.

[16]An important and major element of the job of a Work Coach was conducting interviews with benefit claimants, face to face. The claimant’s contract of employment appears in the bundle at pages 322 to 330. Between starting work with the respondent and the events which form the basis of this claim, the claimant had held a number of positions and responsibilities including working on the introduction of Universal Credit and as a Fraud Officer. The claimant was seen by the respondent as a highly experienced and capable member of staff, and one they wished to retain. As the Tribunal found, the respondent went to considerable lengths to try to retain the claimant in their Disability

[17]By a letter dated 15 April 2023, the respondent accepted that the claimant was disabled by reason of M.E., Fibromyalgia and IBS. However, the respondent disputed that it had knowledge that the claimant was disabled at the material time. The claim includes a complaint under section 15 EqA, about discrimination because of something arising from disability. The claimant said the things arising from her disability were severe fatigue due to her M.E. and Fibromyalgia, and the fact that the claimant had a greater number of sick days than comparable non-disabled employees. Attendance management procedures

[18]The respondent has an attendance management policy and procedures which appear in the bundle at pages 1076-1107. The attendance management procedures are triggered after 8 days of sickness in a 12 months’ period. The trigger period can be extended by up to 8 days in certain circumstances; alternatively, a warning can be disregarded in certain circumstances, including where somebody is waiting for reasonable adjustments to be implemented. In addition, a disabled employee can have their trigger point increased, called a ‘disabled employee’s trigger point’, which is seen as a reasonable adjustment to extend trigger points for sickness absence and therefore attendance and review meetings in cases where a disability makes attendance and absence issues more likely.

[19]In the years from 2015 onwards, the claimant underwent major surgery and a number of significant and invasive treatments for her health. While she continued to work, her health declined, and she was subject to occasional attendance management. Grievance procedure

[20]The respondent has a policy on how to resolve grievances and other issues at work which appears in the bundle at pages 1108-1111. The employee guidance states that normally issues should be raised within 30 working days but that the respondent recognises that, in cases of bullying and harassment, employees may not feel able to come forward until some time after the event. COVID pandemic and lockdown

[21]On 23 March 2020, the first COVID lockdown was implemented by the UK Government in response to the pandemic and people were told to work at home wherever possible. However, working at home was not immediately possible for the respondent’s employees in Job Centres. The respondent considered how to address the threat of Covid through working from home, but it did not have the equipment readily available. Laptops and other kit required was ordered but it took until late 2020 to arrive. In the meantime, the respondent implemented social distancing in the office, hand sanitiser was introduced, employees were told to wash their hands, interviews were conducted by telephone, and screens were put up between staff and the public where they had to be seen face-to-face. Individuals with significant risk from Covid or who were considered to be clinically vulnerable, were sent a letter from the NHS and told to “shield”. The respondent sent home those employees who had received a shielding letter, and they then waited at home for the necessary kit to arrive so that they could work from home. The claimant did not receive a shielding letter, and she continued to attend the Job Centre to work. Indeed, the Tribunal considered, from the evidence before it, that the claimant wanted to come into work and chose to do so, at the time.

[22]On 6 July 2020, the claimant had a blood test, and her GP issued a fit note covering the period to 30 August 2020, which appears in the bundle at pages 332. The note states that the claimant “may be fit for work” taking account of the advice on the fit note. This confirmed that the claimant was suffering from tiredness and generalised pain, and it recommends that she rest as much as possible throughout the day and work from home whilst awaiting bowel investigations. The fit note ends by saying “Hope this can be facilitated.”

[23]The claimant was then off work, sick, from 7 to 15 July 2020 whereupon she was granted special leave because of her forthcoming Colonoscopy on 30 July 2020.

[24]Thereafter, the claimant worked adjusted hours, from 9am to 2 pm to aid her recovery. Despite that her fit note suggests working from home if that can be facilitated, the claimant did not want to work from home, and she did not request to work from home at that time. The claimant’s manager, Ms Corcoran, sought HR advice because the claimant appeared to be exhausted all of the time. Ms Corcoran was very concerned about the claimant; they had been friends. Ms Corcoran asked the claimant to think of anything that might assist her at work, in particular, reasonable adjustments to her working terms and conditions that might help her to feel less tired. An occupational health service referral was also made, albeit that this was initially delayed because the email did not go through when it was sent by Ms Lindley, whilst Mrs Corcoran was on holiday. When Ms Corcoran returned, she realised that the occupational health referral had not been processed, and so she resent the referral. The occupational health report was eventually produced on 7 September 2020.

[25]In the meantime, on 24 August 2020, Ms Corcoran asked the claimant about her work, in particular asking, “did you do only one activation call last week?” and remarked that other employees had done around 20 calls in the week. At this point in time, neither the claimant, nor the respondent knew that the claimant had M.E. or Fibromyalgia. The Tribunal found that the comment was made when Ms Corcoran was compiling and reviewing management statistics, and she was reasonably concerned about the recording of work done under the Covid arrangements being accurate or inaccurate. The fact that the claimant had completed only one call, when everyone else was averaging 20 calls stood out. However, the Tribunal considered that the comment was said in the context of Ms Corcoran being concerned about how the claimant was, health wise, as evidenced by the fact that the claimant appeared only to be able to manage one activation call in the period. The Tribunal accepted the evidence of Ms Corcoran, that her comment was not made in an attempt to question the claimant’s performance or productivity per se. Rather, it was in an effort to gauge the effect of the claimant’s health on her work and vice versa.

[26]On 25 August 2020, in the course of general conversation, Ms Corcoran said to the claimant “Donna you are always tired; you’ve been tired for years”. This was an observation by Mrs Corcoran but not a flippant remark. It was Mrs Corcoran checking on the claimant, in the context of thinking about how the respondent could support the claimant practically. The Tribunal accepted Ms Corcoran’s evidence that it was an expression of her realisation that the claimant’s tiredness had in fact been an underlying issue for a long time.

[27]On 27 August 2020, Ms Corcoran said to the claimant “You can’t be tired for ever”. The Tribunal found this comment was made out of concern for the claimant, and in the context of considering how to support the claimant and her health. Here, the Tribunal accepted Ms Corcoran’s evidence that she was worried about the claimant’s health. At the time, the claimant was attending the Job Centre and working hard, and the respondent had a duty to consider the health and well-being of its staff. Ms Corcoran was undertaking that duty, as the claimant’s manager, in a reasonable manner.

[28]On 31 August 2020, the claimant called in, sick. Mrs Corcoran asked the claimant about how she was feeling, asking, “Is it that you physically can’t do anything, or you don’t want to do anything?” Later in the conversation, Ms Corcoran remarked that, “Sometimes you have to push yourself to do things.” Ms Corcoran’s evidence was that, at the time, Mrs Corcoran had made an occupational health referral, and she had taken HR advice. She was trying to understand what it was that was making the claimant so tired and what was wrong. The questions were legitimate enquiries. Ms Corcoran explained to the Tribunal that she thought the claimant might be depressed; hence asking about whether it was the claimant not wanting to do anything as opposed to being physically unable to do anything. The enquiries were pertinent to the issue of how best the respondent might support the claimant and her state of mind. The Tribunal found that the “push yourself” comment was made in response to the claimant having said that she found it daunting to go on a forthcoming trip to Yorkshire with her partner. Ms Corcoran was encouraging the claimant to do so, because she thought it would be a good break for the claimant.

[29]On 2 September 2020 the first occupational health report was issued. It appears in the bundle at page 34. It does not mention disability, but it does suggest that the respondent try different work patterns to ease the claimant’s fatigue. Nothing could be done about that, initially, because the claimant was off work, sick, at the time.

[30]On 7 September 2020, when the claimant was still off work, sick, Ms Corcoran called the claimant about the occupational health report which had arrived, and she read it out to the claimant over the phone. In the course of reading out the report, Ms Corcoran laughed at the report’s comment about the fact that the claimant had to lie down when getting home from work, and Ms Corcoran had responded with a statement, “We all do”. The Tribunal considered that such a comment was not meant to be hurtful nor was it intended to diminish the claimant’s symptoms. Rather, it was said in an effort to emphasise that life was hectic for everybody, particularly given the additional pressure of the Covid pandemic, which was continuing with, seemingly, no end in sight at the time. The Tribunal accepted on the balance of probabilities that Ms Corcoran trying to use humour to make the claimant feel better, in the face of what was a difficult subject to approach.

[31]Additionally, Ms Corcoran said, “Sometimes you need to push yourself” and asked the claimant “Is it because you can’t or don’t want to?”. Ms Corcoran admitted in evidence that this, and the “push yourself” comment, were the sort of things she might well have said. The Tribunal found Mrs Corcoran was trying to encourage the claimant to get on with life as best she could, and Ms Corcoran was trying to understand how to motivate the claimant and how to support the claimant who was seen as a good employee but one who was clearly having difficulties with her life, and her health, both inside and outside of work. The Tribunal heard evidence that Ms Corcoran had been a friend to the claimant, and was trying to be so. The Tribunal also took note of the fact that, at the time, the claimant didn’t have any diagnoses of her conditions, albeit that her GP had begun to suggest that the claimant’s fatigue might be M.E. So, in a sense, everyone was working in the dark and doing their best.

[32]The claimant remained off work, sick and, on 7 October 2020, the respondent issued the claimant with a first written warning under its attendance management procedure. What happened was that Ms Corcoran, as the manager handling the process had decided to allot a “Disabled Employee Trigger Point”, or DETP, to assist the claimant with her absence levels. However, Ms Corcoran also issued the claimant with a first written warning because the claimant had exceeded the 8 days’ absence which was the usual trigger point in the respondent’s attendance management policy and procedure but, In fact, the claimant had by then had 16 days’ absence in the relevant 12 months, period, from 10 September 2019 and 11 September 2020.

[33]Ms Corcoran had sought HR advice which was that she should meet with the claimant and her trade union representative. It was the claimant’s trade union representative who first suggested applying a DETP. Under the attendance management procedure, the DETP was a way of extending the usual absence trigger and Ms Corcoran said she would look into it. HR advised Mrs Corcoran that extending the trigger by an addition 4 days might be appropriate, with an 8-day extension being the maximum extension allowed in a year.

[34]Ms Corcoran followed HR advice and wrote to the claimant to say she would allow an additional 4 days as a DETP, as HR had advised, making the claimant’s trigger point 12 days of absence. However, by then the claimant had already exceeded 12 days of sickness absence. In those circumstances, where the trigger has been exceeded, the respondent’s policy directs that a warning be given. In fact, in order to avoid issuing a warning, Ms Corcoran would have had to have given the claimant the maximum allowance of 8 days as a DETP, on the first warning. However, the Tribunal noted that, by the time of the warning being given, the claimant had already had a further sickness absence, so even the full extension of a DETP would not have helped her avoid a warning.

[35]Nevertheless, on 16 October 2020, the claimant appealed the first written warning.

[36]At the end of October 2020, surface pro laptops arrived but they needed to be configured for outgoing telephone calls, in order to allow those calls to be done by employees working from home. This meant a further delay in issuing the laptops to staff, but this was only a matter of a couple of weeks’ delay.

[37]On 6 November 2020, a meeting was held to consider the claimant’s appeal against the warning. It was conducted by Adele Whalley. The minutes appear in the bundle at page 370 onwards. The claimant attended with her trade union representative and the meeting concluded that the warning had been issued without reasonable adjustments being put in place first. The Tribunal considered, however, that this conclusion was reached erroneously because the situation, as then described to Mrs Whalley by the claimant and her trade union, was inaccurate and misleading. They had suggested that reasonable adjustments should have been put in place for the claimant and therefore a warning should not have been issued. In fact, reasonable adjustments had not been raised previously, let alone determined. This was at a time when the claimant had no diagnosis of her health condition, and nobody was talking of it in terms of a disability.

[38]However, because of the suggestion that reasonable adjustments was a live issue, on 18 November 2020, Ms Whalley overturned the first written warning on the basis of:(a) an element of procedures not being followed; and

(b) a delay in making reasonable adjustments. Neither of these matters have since been found to be accurate or true.

[39]On 7 November 2020, the day after the appeal meeting, the claimant received a formal diagnosis of M.E. and Fibromyalgia from a consultant, Dr Binymin. The diagnosis appears at pages 1,565 to 1,566 of the bundle. The medical diagnosis makes no mention of Irritable Bowel Syndrome (“IBS”).

[40]At the end of November 2020, the claimant was issued with a surface pro laptop and, on 23 November 2020, she commenced working from home with her laptop set up.

[41]On the same day, 23 November 2020, the claimant made an application to change her working hours to 30 hours per week. She proposed to work these hours over 3 days, Monday, Wednesday and Friday, 10 hours per day, so that she could rest on Tuesdays and Thursdays. Ms Corcoran was concerned at the prospect of the claimant working what was termed “compressed hours” because it meant that the claimant would be working 3 long days of 10 hours per day. Ms Corcoran thought that 30 hours worked over 4 days would be more suitable, and less tiring but she nevertheless approved the claimant’s application. However, one consequence of a 3-day working week was that the trigger point for sickness absence management would be pro-rata for a 3-day week which reduced the trigger point to 5 days. As a result, and in an effort to assist the claimant, Ms Corcoran also awarded the claimant a DETP of an additional 5 days, thereby doubling the claimant’s trigger point under the absence procedures.

[42]On 22 December 2020, a second occupational health report was issued – see bundle page 430. This refers to M.E. and Fibromyalgia and notes that the claimant had the benefit of a diagnosis, but the report does not mention IBS. The report advised that the claimant was fit to work from home “if it was operationally feasible” for her to do so, and opined that working from home would help the claimant to manage her energy levels. By this time, the claimant was in fact already working from home.

[43]On 29 January 2021, the claimant told Mrs Corcoran that she would be getting a fit note from 31 January 2021. In response, Ms Corcoran asked why and pointed out that the claimant did not need a fit note because she had changed her hours and was working from home. The claimant was not intending to go off sick. The Tribunal considered that the claimant was, for reasons which she could not explain, seeking to tender a fit note which repeated the suggestion that she was fit to work from home, even though this was not in dispute, and despite that she was indeed working from home. Ms Corcoran understandably did not see the need for fit notes when the claimant was working the hours which she chose, and from home at her request. The fit note was therefore unnecessary; hence Ms Corcoran reasonably questioned the need for it. The Tribunal did not consider that this action, by the claimant’s manager, amounted to harassment as claimed; in the circumstances, it was entirely reasonable and understandable for the manager to question the claimant about her intention to obtain a fit note.

[44]In February 2021, Mrs Corcoran asked the claimant to attend the office to work for 2 days on 22 and 24 February 2021, due to an anticipated shortage of staff in the building. This was a reasonable request for operational reasons. Contractually, the respondent was entitled to make such a request in the interests of business efficiency and to ensure sufficient staff were present to cover leave arrangements. The request was in line with the occupational health report of 22 December 2020, which had advised that the claimant be permitted to work from home if it was operationally feasible. The Tribunal accepted evidence that, on the 2 days in question, it was not operationally feasible for the claimant to work from home because of the lack of staff in the office. In any event, the claimant agreed to come into the office to work on the 2 days, but she was not happy. However, at the very end of the second day, 24 February 2021, the claimant produced a fit note, dated 22 February 2021, which appears in the bundle at page 441. The claimant had this fit note with her all day. In the comments section, the GP has written that the claimant would benefit from home working and that commuting into work in the office, on top of working 10 hours day would have a detrimental effect on her ME/Fibromyalgia. Ms Corcoran took note of the GP’s comments and did not thereafter ask the claimant to attend the office to work.

[45]In April 2021, the respondent started asking benefit claimants to come into its Jobcentres for face-to-face interviews. This change of practice necessitated those staff who had been working from home, to return to work in Jobcentres in order to facilitate face-to-face interviews. The Tribunal considered this to be a reasonable request, given that the threat of COVID had reduced and the UK Government was advocating a return to previous working arrangements. In addition, the respondent wanted to interview benefit claimants in person for a number of operational reasons. Going forward, it was decided that the majority of benefit claimant interviews would be conducted face-to-face and that only a very few telephone call interviews would be needed.

[46]On 7 April 2021, Ms Corcoran spoke to the claimant. She reminded the claimant that the Work Coach role was public facing, and required face to face interactions as the majority of the work, and that this meant that working from home could not be accommodated, in the Work Coach role, going forward. The respondent’s reasons for this direction, which the Tribunal accepted, were that, amongst other things, face to face interviews would facilitate more open conversations, allowing its staff to build a rapport with benefit claimants, assist the detection of fraud and also spot signs of mental health issues or domestic violence, which could then be referred to appropriate agencies to support benefit claimants in the long term. In response, the claimant told Ms Coircoran that she was concerned about the noise and light in the office environment. The respondent looked at ways to address these aspects, however the claimant was resistant and said that her preferred option was to work from home and also that, if she had to come into the office, she would need to work shorter days.

[47]Ms Corcoran took advice on hybrid working from HR, as a result of which, on 30 April 2021, Ms Corcoran sent a number of written questions to the claimant about how she thought it might work. The claimant never responded to Ms Corcoran’s questions and went off sick, from 12 May 2021 to 10 June 2021, when she returned to work on a phased return, working shorter hours and at home.

[48]In the meantime, on 6 May 2021, Ms Corcoran retired.

[49]On 28 June 2021, the claimant presented a number of grievances to the respondent, mainly about Ms Corcoran but also about Ms Lindley who had become the claimant’s new manager. The grievances are lengthy, and they appear in the bundles at pages 543 to 592. The claimant gave evidence that she had deliberately waited until Mrs Corcoran retired before presenting her grievances. The Tribunal considered that the allegations raised went back several years and that it was therefore very difficult for the respondent to address the historic allegations.

[50]On 9 July 2021, a third occupational health report was obtained. It appears in the bundle at page 595, and contains the first mention of IBS. This was the first time that the respondent was alerted to that aspect of the claimant’s disabilities.

[51]On 21 July 2021, during a conversation about how the claimant was feeling and how her health was, Ms Lindley remarked, “It’s probably an age thing” in response to the claimant trying to explain temperature regulation for her M.E. The claimant had questioned her tiredness and why she was feeling hot, and had suggested it might to do with her M.E. The Tribunal considered that Ms Lindley was merely raising an alternative explanation, that such matters might be signs of the menopause, and that Ms Lindley was trying to empathise with the claimant about that.

[52]On 21 July 2021, Ms Lindley had a meeting with the claimant to undertake a stress risk assessment which had been recommended by occupational health. The purpose of the meeting was to explore ways to manage the claimant’s stress in the future. In the course of the meeting, the claimant sought to explain how what had happened to her before had affected her physical and mental health, which had deteriorated. Ms Lindley said to the claimant, “That’s in the past but we need to move further from here and you seem to be dwelling on what’s happened and we need to look to the future”. The Tribunal considered this to be an entirely reasonable comment, designed to encourage the claimant to focus on what the meeting was for. There was no intention to cause offence.

[53]On 18 August 2021, the claimant abruptly ended a telephone conversation with her manager, Ms Lindley. As a result, Ms Lindley became concerned about the claimant’s mental health and wellbeing because of the way the claimant had acted. It led to the respondent’s managers trying to make contact with the claimant to check that she was alright. However, the claimant saw things differently and alleged that she was being ‘hounded’ to keep in touch (“KIT”) with work. The Tribunal has reviewed the respondent’s managers actions, both in response to the ending of that call and over the next few months and considered the managers to have taken reasonable and precautionary actions, in the circumstances, given the importance of keeping in touch with a remote working employee, who was subsequently off sick. In contrast, the claimant’s actions at the time amounted to pushing back on all and any efforts to get her to return to work in the office, or to find her something else that she could do whilst working from home.

[54]On 18 August 2021, after the call that was ended abruptly, the claimant was signed off work sick and she never returned to work.

[55]On 24 August 2021, the respondent decided that the claimant could continue to work from home for a further period of 3 months as a temporary measure. In order to facilitate this, the claimant was to be tasked to work on clearing the backlog of administrative work generated by the Covid pandemic arrangements and as a reasonable adjustment for the interim. A note to that effect appears within the KIT notes in the bundle at page 656.

[56]In the meantime, the respondent’s managers made extensive efforts to look at alternative roles for the claimant. For example, managers identified that the claimant could move to the Safeguarding Team, which would allow working from home, and which would require minimal training. However, the Safeguarding team’s work involved dealing with people with mental health issues and so this was considered not to be ideal for the claimant because aspects of the work could be quite distressing. The respondent was rightly concerned about the claimant’s resilience in the face of such, given that she was not well. In any event, the claimant declined to consider a role in the Safeguarding team.

[57]There was also the possibility of the claimant undertaking a ‘Decision Maker’ role, for ‘failed to attend’ cases. This would be for 3 to 6 months, working from home, with a requirement of 3 days’ training. The claimant declined this role due to the training requirement.

[58]There was also a ‘Kickstart Employment Adviser’ role which could have been done by working from home, with some training, and which would last at least until March 2022, but the claimant declined that as well.

[59]At one point, managers looked at “job carving” for the claimant. This means carving up aspects of the claimant’s Work Coach Role for the claimant, but this was found to be impossible to do without a significant adverse effect on other Work Coaches. In any event, whenever the issue of training for something new was raised, the claimant’s position was that she was scared to learn something new. This made it very difficult for the respondent to identify how to accommodate the claimant.

[60]A further option was suggested to the claimant, namely putting her on the respondent’s Equality Act register, in order to facilitate a permanent move. However, it was likely that any move or change of role would necessitate training for the new role that had been identified. Any such moves/roles which included training were all declined by the claimant, who told the Tribunal that she was scared to learn something new.

[61]The Tribunal noted that the claimant herself did not actively look for another role. In light of the above, the Tribunal concluded, and the claimant accepted as much in evidence, that the claimant wanted to stay as a Work Coach but work from home. This stance meant that the claimant resisted all attempts by the respondent to resolve her situation otherwise, including proposed alternative reasonable adjustments.

[62]On 1 September 2021, there was a meeting between Ms Whelan Cooper and the claimant (who was off sick) at which the claimant’s grievances were discussed. Ms Whelan Cooper had noticed that they had been overlooked and sought to explore them, out of concern that matters would be difficult to investigate in any event since Ms Corcoran had retired and left the respondent. In addition, the proposal that the claimant could work from home on the Covid administrative backlog was also discussed. However, nothing was resolved on either matter as the claimant wanted to take further advice from her GP – see bundle page 657.

[63]On 1 October 2021, the respondent held a 14-day absence meeting at which the claimant agreed that her grievances against Ms Corcoran could not be investigated now that Ms Corcoran had retired and also taking account of the length of time that had elapsed and the historic nature of many of the complaints. The claimant also agreed that the allegations against Ms Lindley should not be investigated. It was therefore agreed that the claimant’s grievances would not be handed over to an investigator. As a result, that was in effect the end of the matter. The claimant said then, and in evidence, that she wanted somebody to listen to her and fully understand the difficulties she was facing with her health. The claimant therefore asked for a further occupational health referral. The claimant also told Ms Whelan Cooper that the M.E. clinic had paused her treatment due to ongoing work issues and until reasonable adjustments were put in place. However, the Tribunal found that this was not an accurate account by the claimant. There is documentation in the bundle which confirms that it was in fact the claimant who had requested a pause in treatment at that time on the basis that she could not commit top the treatment sessions – see bundle page 1572 .

[64]On 20 October 2021, there was a KIT call between Ms Whelan-Cooper and the claimant. At this point, the respondent’s managers were beginning to feel that all options to facilitate the claimant’s return to work had been exhausted and that the claimant’s case should be referred to a Decision Maker for consideration of options including dismissal. However, Ms Whelan Cooper decided not to do so and instead decided to wait further, to see how the claimant went and whether she showed any signs of recovery or improvement.

[65]On 29 October 2021, a 28-day sickness absence review meeting took place between Ms Lindley and the claimant who was accompanied by her trade union representative. The meeting notes appear in the bundle at pages 724- 729. In the meeting, reasonable adjustments to the office environment were discussed and the claimant was again resistant. The Tribunal found that the notes record that the claimant’s trade union representative sought to remind the claimant that the respondent’s employees were contractually obliged to be in the office and that working from home had only ever been a temporary arrangement. Efforts were also made to look at alternative roles for the claimant if she couldn’t return to work in the office. The Tribunal considered this to be another example of the respondent going to lengths to a role and/or meaningful work for the claimant to do in some capacity taking account of her state of health and reasonable adjustments..

[66]Later on 29 October 2021, and after the review meeting, the fourth occupational health report was received. It appears in the bundle at pages 737-738. The report states that a return to work for the claimant, in the office environment, was unlikely in the foreseeable future and that working from home was helpful to manage her symptoms.

[67]On 2 November 2021, the claimant did attend the Jobcentre in Leyland to undergo a DSE assessment. The DSE risk assessment appears in the bundle at pages 739-743. It had been delayed by the claimant’s sickness, but the respondent hoped it would be a starting point to determine what physical changes could be made to the office environment so the claimant could return to work there. However, in the course of her visit to the office, the claimant disclosed that she anticipated a problem with her workstation due to reflections on her screen from the windows behind; there being no blinds where she sat. The claimant also said that the office lighting was a problem because it was too bright and would “… exacerbate [her] symptoms and cause pain and distress,” despite that the lighting immediately above her desk had been removed for her. In addition, the claimant raised a concern about the provision and accessibility of toilet facilities on the basis that she needed easy and quick access for her IBS.

[68]In November 2021, Paul Elder became the claimant’s line manager.

[69]On 22 December 2021, Mr Elder conducted a 3-months attendance review meeting, the notes of which appear in the bundle at page 800. Unfortunately, Mr Elder was too unwell to attend the Tribunal hearing to give oral evidence in respect of his statement. Ms Spear’s evidence was that Mr Elder had been positive in his view that the respondent was making progress towards resolving the claimant’s situation and getting her back to work from long-term sickness absence.

[70]On 2 January 2022, the respondent sent the claimant a letter to inform her that her full sick pay was due to expire and that she would go on to half pay from 1 February 2022. The letter appears in the bundle at page 860. In evidence, the claimant suggested that the respondent’s letter about going onto half pay was a factor in her decision to resign.

[71]On 18 January 2022, the respondent invited the claimant to a 4-months absence review meeting.

[72]On 21 January 2022, the claimant resigned, giving a month’s notice, to 18 February 2022. Her resignation letter appears in the bundle at page 828. The claimant wrote that she was resigning in response to a repudiatory breach of trust and confidence and that the claimant considered herself to have been constructively dismissed. In particular, the claimant alleged: a failure to support her regarding her disabilities since 6 July 2020; a failure to investigate her 2 grievances; the language and behaviours and harassment to which she had been subjected by her line managers; subjecting her to stress from 7 July 2020; and lack of support in a timely manner to allow her to remain in

[73]Friday 18 February 2022 was the claimant’s last day of work, being the end of her notice period.

[74]On Tuesday 22 February 2022, the claimant started an entirely new job at Sainsburys, picking orders for online shoppers, albeit working less hours, for less money.

The applicable law

[75]A concise statement of the applicable law is as follows. Disability discrimination

[76]The complaint of disability discrimination was brought under the Equality Act 2010 (“EqA”). Disability is a relevant protected characteristic as set out in section 6 and schedule 1 EqA.

[77]Section 39(2) EqA prohibits discrimination by an employer against an employee by subjecting her to a detriment. By section 109(1) EqA an employer is liable for the actions of its employees in the course of

[78]The EqA provides for a shifting burden of proof. Section 136(2) and (3) so far as is material provides as follows: (2) If there are facts from which the Court could decide in the absence of any other explanation that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[79]Consequently, it is for a claimant to establish facts from which the Tribunal can reasonably conclude that there has been a contravention of the EqA. If the claimant establishes those facts, the burden shifts to the respondent to show that there has been no contravention by, for example, identifying a different reason for the treatment.

[80]In Hewage v Grampian Health Board

[2012] IRLR 870

the Supreme Court approved guidance previously given by the Court of Appeal on how the burden of proof provision should apply. That guidance appears in Igen Limited v Wong

[2005] ICR 931

and was supplemented in Madarassy v Nomura International plc

[2007] ICR 867

. Although the concept of the shifting burden of proof involves a two-stage process, that analysis should only be conducted once the Tribunal has heard all the evidence, including any explanation offered by the employer for the treatment in question. However, if in practice the Tribunal is able to make a firm finding as to the reason why a decision or action was taken, the burden of proof provision is unlikely to be material. Harassment

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

[82]The concept of harassment under the previous equality legislation was the subject of judicial interpretation and guidance by Mr. Justice Underhill in Richmond Pharmacology and Dhaliwal

[2009] IRLR 336

. The Tribunal has applied that guidance, namely: “There are three elements of liability(i) whether the employer engaged in unwanted conduct;

(ii) whether the conduct either had (a) the purpose or (b) the effect of either violating the claimant's dignity or creating an adverse environment for her; and

(iii) whether the conduct was on the grounds of the claimant's [protected characteristic].” Discrimination arising from disability

[83]The prohibition of discrimination arising from disability is found in section 15 EqA. Section 15(1) provides: (1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B's disability and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

[84]The proper approach to causation under section 15 was explained by the Employment Appeal Tribunal in paragraph 31 of Pnaiser v NHS England and Coventry City Council EAT /0137/15 as follows:(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.

(b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a section 15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.

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

(d) The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B’s disability”. That expression ‘arising in consequence of’ could describe a range of causal links …[and] may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.

(e) ….. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.

(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.

(g) …..

(h) Moreover, the statutory language of section 15(2) makes clear …. that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so.

[85]In City of York Council v Grosset [2018] WLR(D) 296 the Court of Appeal confirmed the point made in paragraph (h) in the above extract from Pnaiser: there is no requirement in section 15(1)(a) that the alleged discriminator be aware that the “something” arises in consequence of the disability. That is an objective test. Reasonable adjustments

[86]The duty to make reasonable adjustments, in section 20 EqA, arises where:(a) the employer applies a provision criterion or practice which places a disabled employee at a substantial disadvantage in comparison with persons who are not disabled; and

(b) the employer knows or could reasonably be expected to know of the disabled person’s disability and that it has the effect in question.

[87]As to whether a “provision, criterion or practice” (“PCP”) can be identified, the Equality and Human Rights Commission Code of Practice in Employment (“the EHRC Code”) paragraph 6.10 says the phrase is not defined by EqA but “should be construed widely so as to include for example any formal or informal policy, rules, practices, arrangements or qualifications including oneoff decisions and actions”.

[88]As to whether a disadvantage resulting from a provision, criterion or practice is substantial, section 212(1) EqA defines substantial as being “more than minor or trivial”. In the case of Griffiths v DWP

[2015] EWCA Civ 1265

it was held that if a PCP bites harder on the disabled employee than it does on the able-bodied employee, then the substantial disadvantage test is met for the purposes of a reasonable adjustments claim.

[89]The duty is to take such steps as it is reasonable, in all the circumstances, to take to avoid the provision criterion or practice having that effect. The duty is considered in the EHRC Code. A list of factors which might be taken into account appears at paragraph 6.28, but (as paragraph 6.29 makes clear) ultimately the test of reasonableness of any step is an objective one depending on the circumstances of the case. An adjustment cannot be a reasonable adjustment unless it alleviates the substantial disadvantage resulting from the PCP – there must be the prospect of the adjustment making a difference.

[90]Under section 136 EqA, it is for an employer to show that it was not reasonable for them to implement a potential reasonable adjustment.

[91]The time limit for complaints of unlawful discrimination is found in section 123 EqA, which provides that such complaints may not be brought after the end of: -(a) the period of three 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.

[92]Conduct extending over a period of time is to be treated as done at the end of that period and a failure to do something is to be treated as occurring when the person in question decided on it, or does an act inconsistent with doing it, or on the expiry of the period in which that person might reasonably have been expected to do it. A continuing course of conduct might amount to an act extending over a period, in which case time runs from the last act in question.

[93]In Robertson –v- Bexley Community Centre (T/A Leisure Link)

[2003] IRLR 434

the Court of Appeal considered the application of the “just and equitable” extension and the extent of the discretion and concluded that the Employment Tribunal has a “wide ambit”. Constructive unfair dismissal

[94]Section 95(1)(c) ERA provides that an employee is dismissed if the employee terminates their contract of employment, with or without notice, in circumstances such that the employee is entitled to terminate their contract without notice by reason of the employer’s conduct.

[95]The case of Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

provides that the employer’s conduct that gives rise to constructive dismissal must involve a repudiatory breach of contract, or a significant breach going to the root of the contract of employment, showing that the employer no longer intends to be bound by one or more of the essential terms of the contract of employment. In the face of such a breach by the employer, an employee is entitled to treat herself as discharged from any further performance under the contract, and if the employee does treat herself as discharged, for example by resigning, then she is constructively dismissed.

[96]If, however, the employee delays in resigning after the employer’s breach, the employee may be taken to have affirmed the contract and, if so, may lose the right to claim that she has been constructively dismissed.

[97]If an employee is found to have been constructively dismissed, section 98 ERA sets out a 2-stage test to determine whether the employee has been unfairly dismissed. First, the employer must show the reason for the (constructive) dismissal, or the principal reason and that reason must be a potentially fair reason for dismissal in law.

[98]If the employer shows a potentially fair reason in law, the Tribunal must then consider the test under section 98(4) ERA, namely whether, in the circumstances of the case, including the size and administrative resources of the respondent’s undertaking, the respondent acted reasonably or unreasonably in treating that reason, as a sufficient reason for (constructively) dismissing the claimant and the question of whether the dismissal is fair or unfair shall be determined in accordance with equity and the substantial merits of the case.

[99]In the course of submissions, the Tribunal was referred to a number of cases by Counsel for the respondent, as follows: Project Management Institute v Latif

[2007] IRLR 579

McDougall v Richmond Adult Community College

[2008] EWCA Civ 4

Eastern and Coastal Kent Primary Care Trust v Grey

[2009] IRLR 429

Land Registry v Grant

[2011] EWCA Civ 769

Weeks v Newham College

UKEAT/0630/11

Griffiths v DWP

[2015] EWCA Civ 1265

GMB v Henderson

[2016] EWCA Civ 1049

Reverend Canon J C Pemberton v The Right Reverend Richard Inwood, former Acting Bishop of Southwell and Nottingham

[2018] EWCA Civ 564

Tees, Esk and Wear Valleys NHS Foundation Trust v Aslam

UKEAT/0039/19

The Tribunal took these cases as guidance but not in substitution for the statutory provisions. Conclusions (including where appropriate any additional findings of fact)

[100]The Tribunal has applied its relevant findings of fact and the applicable law to determine the issues in the following way.

[101]The respondent contends that anything that happened before 17 December 2021 may not have been brought in time, calculating 3 months back from the start of ACAS early conciliation on 16 March 2022. If that is the case, then all of the discrimination complaints are out of time, because the allegations of harassment and the unfavourable treatment relied upon occurred long before 17 December 2021. The claimant has not explained the delay. From the evidence, the Tribunal concluded that, as with the grievances presented to the respondent in June 2021, it appears that the claimant simply waited until she resigned before bringing any complaint to the Tribunal.

[102]The matters complained of go back almost 5 years, to 2020. The claimant resigned 3 years ago, and the respondent has struggled to defend the complaints largely due to a number of key employees moving on, retiring or being off sick in the interim. The Tribunal found from the oral evidence that memories may well have faded but that the respondent’s witnesses were open and honest about their recollections and inability to remember events in detail.

[103]The claimant has pursued serious allegations of harassment and discriminatory treatment but there has been no haste in bringing such complaints whether internally or at an appropriate time, before presenting her claim to the Tribunal. The claimant was advised and supported by her trade union throughout and, in those circumstances, the Tribunal considered that the claimant must have had the benefit of advice on time limits. Further, there was no medical evidence or reason to explain such inordinate delay. In light of these considerations, and the surrounding circumstances, the Tribunal considered that the discrimination complaints were plainly out of time, notwithstanding the fact that the Tribunal also considered them to be unmeritorious, and that it would not be just and equitable to grant an extension of time.

[104]The discrimination complaints therefore fail for being presented out of time. Nevertheless, the Tribunal also made findings as to their lack of merit notwithstanding the fact that the discrimination complaints were presented out of time. Constructive dismissal

[105]In all the circumstances of the case, the Tribunal did not consider that the claimant was constructively dismissed. She resigned on 21 January 2022, citing a number of unspecified reasons for her departure when she had been off work, sick, for a long period of time.

[106]Ther claimant relied upon a number of allegations of breach of trust and confidence which the Tribunal considered in turn.a. The first allegation was that the respondent failed to investigate the claimant’s grievances. The Tribunal found that this was simply not the case. The grievances were brought outside of the respondent’s provisional 30-day time limit and the respondent nevertheless decided to address them anyway but then found that it was not practical to investigate, in light of the retirement of Ms Corcoran. In any event, the Tribunal found, as a fact, that the claimant agreed with the respondent that the grievances could not be investigated; she accepted it was not possible to do so as Mrs Corcoran had retired. That agreement is clearly recorded in the meeting notes of 1 October 2021- see paragraph 63 above. The claimant said she just wanted somebody to listen to her and that she fully understood the difficulties created. In those circumstances, the Tribunal considered that it was disingenuous of the claimant to later suggest that there was a failure to investigate on the respondent’s part.

b. The second allegation is that telling the claimant her salary would reduce to half pay, even though the respondent had failed to put reasonable adjustments in place, was a breach of trust and confidence. It is true to say that, in January 2022, the respondent informed the claimant that her full sick pay would be reduced to half pay. The Tribunal took the view that it is reasonable and, indeed, important for an employer to inform any employee who is absent on sick leave, of when their pay is going to be reduced to half. This allegation, however, is made in the context of a failure to make reasonable adjustments, whereas the Tribunal did not find that such context existed. In any event, there was no contractual right for the claimant to keep being paid full pay in circumstances where reasonable adjustments were pending. The respondent had gone to what the Tribunal considered to be inordinate lengths to accommodate the claimant, to find her work to do whilst working from home and also to consider a variety of other roles and/or reasonable adjustments for her. Importantly, however, no reasonable adjustments had been arrived at because the respondent been unable to secure the claimant’s agreement. She showed no willingness to contemplate any of its suggestions and was obstructive. Whatever reasonable adjustments the respondent proposed and/or sought to explore, including alternative roles, alternative ways of working, and job carving, they were all rejected by the claimant. In essence, the Tribunal found that the only reasonable adjustment which the claimant was prepared to entertain, was to work from home in the Work Coach role. That was no longer practically possible nor operationally feasible. In those circumstances, the Tribunal considered that the claimant was not looking for reasonable adjustments for her disability per se; rather she was pursuing the objective of being allowed to work at home on a permanent basis. Whilst this allegation is phrased in terms of the respondent failing to put reasonable adjustments in place, the Tribunal considered that what the claimant actually meant was that the respondent had failed to allow her to do her Work Coach role while working at home and that was part of why she was off work, sick.

c. Thirdly, the claimant alleged that continuing the attendance management policy, keeping in touch, and holding attendance meetings without making reasonable adjustments amounted to actions in breach of trust and confidence. As explained above, the Tribunal found that this was not an allegation about reasonable adjustments; rather it is again about the respondent not doing what the claimant wanted by not allowing her to work from home in the Work Coach role. The claimant was signed off work on long term sickness. The respondent’s attendance management procedures are triggered after 8 days of sickness in a 12 months’ period. The respondent was following its established attendance management procedures, which was reasonable in the circumstances. It had nothing to do with not making reasonable adjustments. It is correct to say that the trigger periods can be extended in certain circumstances; alternatively, a warning can be disregarded in certain circumstances, which include where somebody is “waiting for reasonable adjustments to be implemented”. The problem for the claimant is that no adjustments had been agreed, and so none were in fact awaited, largely due to the claimant’s obstruction of the respondent’s efforts to address reasonable adjustments. Therefore, the Tribunal considered that the claimant could not be said to be waiting for their implementation. The Tribunal has found that the respondent went to considerable lengths to accommodate the claimant, whilst the claimant also went to considerable lengths to avoid any solution to her situation except to work from home as a Work Coach. In light of these matters, the Tribunal concluded that the claimant’s allegation is misconceived.

d. The fourth allegation was that the respondent, by its actions, was continuing to put the claimant at risk from a Covid infection from 17 March 2020. The Tribunal found no evidence that the claimant was at risk of the Covid infection at the material time or at all, beyond what could be said to be the risk of Covid to which everybody was exposed in the pandemic. There was no evidence of any, or any specific circumstances whereby the respondent be said to have put the claimant at risk from Covid infection, nor did it continue to do so. It took all the precautions expected of an employer at the material time. Indeed, the claimant had, at first, attended and worked in the office of her own volition and she did not catch Covid. The evidence was that, during the first lockdown, the claimant wanted to work in the office. The office itself was Covid secure, and the claimant understood that to be the case - she then attended for 2 days in February 2021 and never raised any objection nor concern about Covid security or the risk of infection.

e. The fifth allegation was of failing to make reasonable adjustments. The Tribunal found that there was no such failure by the respondent to make reasonable adjustments – see also the Tribunal’s conclusions on the reasonable adjustments complaint below. After the DSE assessment on 2 November 2021 (see paragraph 67 above) the claimant never returned to work to allow any adjustments to be put into effect. She had declined all that was offered to her and placed a number of obstacles in the respondent’s way, frustrating its efforts to facilitate her return to work.

f. Lastly, the claimant alleged that the respondent subjected her to discrimination arising from disability as particularised in the section 15 EqA complaint and under harassment. For the reasons set out below, under these particular complaints, the Tribunal found there was no unfavourable treatment because of disability nor disability-related harassment.

[107]The Tribunal has found that none of the 6 allegations/circumstances contended for by the claimant are made out. The claimant has not shown that the circumstances of her case amounted to a constructive dismissal situation. Instead, the Tribunal considered the claimant to be saying that it was intolerable to have to work for the respondent because she was not allowed to do the Work Coach role working from home as she wanted to do. In those circumstances, the constructive unfair dismissal claim is not well-founded and is dismissed. Disability and knowledge of disability

[108]The respondent has accepted that the claimant was disabled by reason of her three conditions, M.E., Fibromyalgia and IBS. The issue here was of the respondent’s knowledge at the material time.

[109]It is apparent that IBS was not known of, by anybody, until 21 May 2021 at the earliest – see also paragraph 50 above. The claimant, in her evidence, accepted that this was the case.

[110]The respondent did not have knowledge of the claimant’s M.E. and Fibromyalgia until the diagnosis was received on 7 November 2020. Before then, the claimant was reporting that she was tired and exhausted. She was, at that time, undergoing investigations for potential bowel cancer, which the respondent’s managers reasonably considered might explain the claimant’s lethargy. Prior to her diagnosis, the claimant had made no mention of ME and/or Fibromyalgia as possible disabilities. The claimant herself had initially taken the view that her tiredness and exhaustion could mean a number of things. Even the claimant’s GP wasn’t saying M.E. at first, although the GP thought about it later on. In those circumstances, the Tribunal did not find that the respondent knew, nor could it reasonably be expected to know that the claimant was disabled by reason of ME or Fibromyalgia prior to 7 November 2020. The Tribunal accepted that, at best, the respondent had developed what Counsel for the respondent submitted was a growing appreciation of the claimant’s ill health. The respondent could not have known, for example, how long the claimant’s tiredness and/or exhaustion might last nor that it might be 12 months. In light of the evidence on disability, therefore, the Tribunal found that, prior to November 2020, the respondent did not have the requisite knowledge of disability for the disability discrimination complaints to succeed. This conclusion is relevant for the time point issues and also because, in light of a lack of knowledge of disability, those factual allegations of disability discrimination prior to November 2020 must fail. That leaves only 3 allegations which are dated in 2021, at a time when the respondent had knowledge of disability. However, these allegations fail as they are out of time and also on their merits as explained below. Harassment

[111]The claimant pursued 8 factual allegations of harassment related to disability, which are set out in the list of issues at section 5.1. The Tribunal has made relevant findings of fact in respect of each allegation, at paragraphs 25-28, 30, 31, 43, 51 and 52 above. In essence, the Tribunal found that words, or the gist of the words alleged, were probably said, on a balance of probabilities, taking account of the honesty and credibility of the respondent’s witnesses. However, the Tribunal also took account of the context of the conversations concerned and found no evidence that any of the substantive allegations related to disability. Harassment is a serious allegation to make. A claimant must show that the actions complained of violated the claimant’s dignity or created an intimidating, hostile, degrading, humiliating or offensive environment in which to work. The Tribunal concluded, from the evidence and witness testimony of those involved, that each of the allegations arose from comments which have been taken out of context. They do not constitute discriminatory harassment, whether taken individually or cumulatively and this would not be so even if the respondent knew that the claimant was disabled at the material time, which it did not – see the conclusions above on disability and knowledge. In light of the Tribunal’s findings of fact, the harassment claim must fail. Discrimination because of something arising from disability

[112]This complaint relies on 2 allegations of unfavourable treatment, set out in section 6 of the list of issues above.

[113]The first allegation under this complaint arose on 24 August 2020 and is therefore out of time. In the Tribunal’s findings of fact, it found that Ms Corcoran did not, as alleged, “challenge” the claimant’s activation calls as such. Rather, the Tribunal found that Ms Corcoran queried the calls recorded with the claimant because the records showed that the claimant had done only one such call in a period where her colleagues had done around 20. In those circumstances, the record stuck out and it was reasonable for Ms Corcoran, as the claimant’s line manager, to be concerned. However, the Tribunal accepted Ms Corcoran’s evidence that her comment was made in the context of being concerned about the claimant’s health and any effect that it might be having upon her work. As such, the Tribunal considered that it did not amount to unfavourable treatment – see also paragraph 25 above.

[114]The second allegation concerns Ms Corcoran instituting the disabled employee trigger point and then immediately issuing the claimant with a first written warning – see paragraphs 32-34 above. The Tribunal accepted that a written warning was unfavourable treatment. However, the decision to issue a warning is explained by the fact that the claimant’s sickness record was such that she had significantly exceeded the trigger points under the procedure, even when the extension was applied for disability.

[115]The respondent contended that it was justified in its actions under this complaint in that it had legitimate aims for any unfavourable treatment – see the list of issues section 6.6. The Tribunal considered that the application of the attendance management procedure was a proportionate means of achieving the legitimate aims of ensuring that staff were capable of demonstrating satisfactory attendance levels and also of ensuring the respondent’s attendance policy was applied fairly and consistently, with an appropriate accommodation for the Claimant’s disability. Mrs Corcoran took HR advice, which she followed and did what she felt was reasonable. She did not act because of the claimant’s severe fatigue. Ms Corcoran, as line manager, sought to apply the respondent’s attendance procedure to the claimant in a fair manner within the confines of the procedure, in light of the amount of sickness occasioned and by applying the trigger extensions for a disabled employee.

[116]There was no evidence of any attempt to discriminate against the claimant – the warning arose prior to the claimant’s diagnosis and at a time when the Tribunal considered that the respondent could not reasonably be expected to know that the claimant was disabled. In addition, although Ms Corcoran’s decision to give the claimant a warning was, in fact, overturned on appeal, the Tribunal found that this decision was in fact erroneous, having resulted from a misleading statement being made at the appeal meeting – see paragraph 37 above.

[117]In light of these conclusions, this complaint also fails. Failure to make reasonable adjustments

[118]In respect of the elements of the reasonable adjustments claim, the respondent accepted the PCPs set out in section 7.2 of the list of issues, namely: its attendance management policy; the requirement that work coaches must physically attend a Jobcentre Plus office to work; and the requirement to interview claimants in an open plan office.

[119]The Tribunal accepted that the substantial disadvantages contended for were made out as follows: The claimant, by virtue of her disabilities, was always likely to experience more sickness absence than other employees. Given her ME and Fibromyalgia, the claimant was also likely to struggle to get dressed, get ready to work and commute. ME and Fibromyalgia are particularly debilitating conditions.

[120]The claimant also contended that she experienced a flare up of her symptoms arising from noise and bright lights. The Tribunal had no medical or other evidence to support the claimant’s assertions about the effects of the working environment upon her, or indeed any other environment. However, the respondent, in submissions accepted that the claimant was put at a substantial disadvantage by such factors and the Tribunal accepted on a balance of probabilities that the claimant was likely to have experienced those particular difficulties as she described them and from early 2021, when the claimant first raised them.

[121]In respect of the reasonable adjustments contended for, the Tribunal dealt with these in turn, as follows.

[122]The first was the suggestion that the claimant should have been granted “special leave” until reasonable adjustments were put in place. The basis of the claimant’s case on “special leave” as an adjustment appeared confused – she argued that the respondent’s failure to implement other reasonable adjustments meant that she was off sick and that, because her sickness arose from such a failure, she should have been placed on “special leave”. The Tribunal found that, at no stage did the claimant request special leave nor did she seek it, for example at the beginning of lockdown in March 2020. The claimant’s evidence was that, at that time, she preferred to come to work in the office. Nevertheless, the claimant was granted special leave in July 2020 when she was preparing for and undergoing a colonoscopy, so she was aware of it. In any event, the Tribunal considered that a grant of “special leave” could not be a reasonable adjustment designed to facilitate the claimant’s return to work or to assist her to do her job. The provision of “special leave” is designed to remove the disabled employee from the job/workplace for a short period and thereby runs contrary to the principle behind reasonable adjustments.

[123]Likewise, in respect of disability leave, there was no evidence that the claimant had sought this during her employment, nor that any treatment attended in work hours would have led to a requirement for the claimant to make up those hours used for the treatment. The claimant herself did not mention disability leave in her witness statement nor under cross examination. The Tribunal, in any event, considered that the concept of leave away from the job ran contrary to the principles of reasonable adjustments. The Tribunal also noted that this adjustment is framed in terms of assisting the claimant to attend treatment for ME at a time when the claimant had herself cancelled such treatment.

[124]The main thrust of the claimant’s case on reasonable adjustments was about working from home which she sought on a permanent basis. The Tribunal found that, due to a lack of the necessary IT equipment, working from home was not an option until November 2020. Prior to then, the claimant not raised working from home and had been given special leave from 7 July 2020. The claimant was allowed to work from home once the IT equipment was available, on 23 November 2020 at the latest and thereafter, despite Jobcentres reopening, the claimant was not required to attend the office on a rota basis. As a result, the claimant remained working from home until she went off sick in August 2021, apart from the 2 days in February 2021 where she attended the office as requested due to staffing issues. Throughout this period, the respondent was seeking to identify a role which the claimant could undertake from home, and that process was ongoing at the time of the claimant’s resignation. The situation was made more difficult by the fact that the Work Coach role could not be undertaken from home - it was not practical nor operationally feasible. However, the claimant had said that she could not entertain any other role for a variety of reasons including where an alternative role would involve retraining. The Tribunal heard evidence of the lengths to which the respondent went and the objections the claimant raised.

[125]In fact, the claimant worked from home from 23 November 2020. Mr Elder made exemplary efforts in December 2021, to introduce adaptations to the office environment as part of working towards the claimant’s return to work. The issue was that returning to work in the office was not the adjustment which the claimant sought nor one which would be effective in immeleriating the substantial disadvantages she faced. The claimant’s position was she could not return to the office due to the issues she faced with getting up, getting ready for work and/or commuting to the office.

[126]In respect of the environmental facts in the office, the Tribunal found that any duty to implement such as reasonable adjustments would not have arisen until 21 July 2021 at the earliest, albeit that the matter of accessing toilet facilities, was not mentioned by the claimant until the DSE assessment on 2 November 2021. Thereafter, the respondent did not have an opportunity to address that matter because the claimant never returned to work.

[127]The Tribunal considered that adjusted duties would have allowed, and did allow the claimant to work from home at a time after 7 July 2020. The claimant was provided with adjusted duties, in that she agreed that working from home was an option and occupational health recommended a trial of altered hours, which was implemented when IT equipment was available in November 2020. It could not have been done before then because it required IT equipment which arrived in November 2020. Thereafter, the Tribunal considered that the claimant was provided with adjusted duties until she went off sick in August 2021. The claimant was offered a three-months’ temporary role, working from home, to address the backlog of administrative tasks from the pandemic but she declined that, along with a number of alternative roles which required training. The respondent’s search for an amended duties or alternative roles for the claimant was ongoing at the point of the claimant’s resignation, but the respondent was unable to make progress whilst the claimant remained off work, sick.

[128]In all the circumstances, the Tribunal concluded that the respondent had identified reasonable adjustments for the claimant, but these were not implemented whilst the claimant remained off sick, albeit that the respondent continued its dialogue with the claimant on the matter, so far as it was able. In fact, the claimant herself had not identified any reasonable adjustment save for working from home in the Work Coach role which the Tribunal found did not amount to a reasonable adjustment in any event.

[129]The claimant pinned her case on the contention that working from home in the Work Coach role was a reasonable adjustment which was denied to her. For all the reasons above, the Tribunal concluded that this could not be a reasonable adjustment in the long term. It only arose for a short period because of the situation forced upon the respondent by the exceptional circumstances of the Covid pandemic. Thereafter, in order to continue in the Work Coach role, the claimant was obliged to be in the office simply because the vast majority of the role could not be performed remotely or from home. Therefore, the complaint of reasonable adjustments is not well-founded and fails.