Mrs D Gallagher v Marks & Spencer plc: 2406039/2020

EMPLOYMENT TRIBUNALS

Case No 2406039/2020

Between

Mrs D GallagherClaimant

Marks & Spencer plcRespondent

Before

Employment Judge Shotter

Mr Hayes (instructed by solicitor) for claimant

Ms Firth (instructed by counsel) for respondent

Date 9 December 2021

JUDGMENT

[1]The claimant was disabled in accordance with section 6 of the Equality Act 2010 with a mental impairment of depression, anxiety and low self-esteem in the relevant period 18 July 2019 to 27 January 2020.

[2]The claim of indirect associated disability discrimination brought under section 19 of the Equality Act 2010 is dismissed on withdrawal by the claimant.

[3]The claim of indirect sex discrimination brought under section 19 of the Equality Act 2010 is dismissed on withdrawal by the claimant.

REASONS

The claims

[1]This has been a remote preliminary hearing by video which has been consented to by the parties. The form of remote hearing was Code V: Kinley CVP video fully remote. A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing. The documents that the Tribunal was referred to are in a bundle of 364 pages, the contents of which I have recorded where relevant below, in addition to the claimant’s unsigned and dated impact statement and the Skeleton Argument of the respondent setting out the undisputed legal principles, for which I am grateful.

[2]A discussion took place concerning the listed 3-day estimated length of hearing and the likelihood that it will go part-heard, especially if it takes place via CVP which is probable and to which the parties have agreed. With the agreement of the parties I have extended the length of hearing to 4-days, and the 4th day will take place on Monday 12 July 2021 immediately following the three days already listed, with assurances that the hearing will not go part-heard. Both parties will confirm one month before the first day of the liability hearing that the case is ready for trial, and if not, the steps which need to be taken, to the Tribunal in writing. A short telephone preliminary hearing may be convened as a matter of urgency at that stage.

[3]We also discussed the issues which have been left until 7-days before the liability hearing, and it was agreed (a) an agreed list of issued reflecting the specific issues in this case and not generic issues, would be prepared by no later than 1 February 2021 and lodged with the Tribunal on before this date. The issues will form the basis of all witness statements and witness statements will not regurgitate documents from the bundle but refer to them by their page number where relevant. The parties will also have prepared an agreed chronology/facts and cast list, which together with the list of issues will be provided to the Tribunal in Word format. Preliminary hearing

[4]Today’s preliminary hearing is to consider whether the claimant is disabled for the purpose of section 6 on the Equality Act 2010 (“the EqA”) and striking out the indirect sex discrimination claim.

Background

[5]Mr Hayes indicated that the claim of indirect associated disability discrimination brought under section 19 of the EqA was withdrawal earlier, and the claimant also withdrew the claim of indirect sex discrimination brought under section 19 of the EqA. Both of these claims are therefore dismissed on withdrawal by the claimant as recorded in the judgment above.

[6]The remaining claims for the Tribunal to decide at the liability hearing are ordinary unfair dismissal under section 94 and 98 of the Employment Rights Act 1996 as amended, direct associated discrimination under section 13 EqA, section 15 discrimination arising as a consequence of disability and section 27 victimisation. Claimant’s disability issue

[7]In order for the complaints of disability discrimination to succeed, the claimant will need to establish that she had a disability within the meaning of section 6 of EqA, and this is the issue before me today.

[8]Oral evidence has been heard on oath from the claimant who confirmed the contents of her impact statement was true, together with oral submissions from Mr Hayes and Ms Firth which I do not intend to repeat in their entirety having incorporated a number of the points made in my findings set out below.

[9]The claimant’s case is that she was disabled by the effects of the mental impairment of low self-esteem, anxiety and depression. The claimant will need to show that she had that disability during the relevant period of time. In this case the parties agree the “the relevant period” is either the 18 July 2019, according to Mr Hayes or 12 August 2019 according to the Skeleton Argument submitted on behalf of the respondent, and ends with the termination of the claimant’s employment on 27 January 2020.

[10]At present, there is a potential dispute about whether or not the claimant had that disability for the whole of the relevant period, the claimant maintaining that she had been suffering from depression for many years since 2010 which the respondent disputed. In the Skeleton Argument and closing submissions Ms Firth concedes that the long-term requirement is proven from the date of the second Occupational Health report dated 3 January 2020 but requires the other elements of the definition to be proven, primarily that the claimant’s mental impairment had a substantial and longterm adverse effect on her ability to carry out normal day-to-day activities on 18 July 2020.

[11]Both parties agreed that the two issues to be resolved were:a. Was the claimant suffering from a mental impairment which had a substantial (more than trivial) adverse effect on her ability to carry out normal day-to-day activities?

b. Was that effect long-term? If an impairment has not lasted for 12 months already at the material time, it must be likely to last for at least 12 months. Likely means could well happen. The facts relating to the claimant’s mental health.

[12]In her impact statement the claimant asserted she had suffered from depression “for many years” from October 2010 and has been “under the care of my GP since that time and have been medicated regularly throughout that time.

[13]In oral evidence under cross-examination the claimant described how she had “consistently suffered from depression since 2010 and had been on medication. The claimant included in her definition of medication the herbal remedies and CBD cannabis oil provided to her by a relative as an alternative to anti- depressant medication which she explained, prevented her from functioning. She described how in the period from June/July 2019 her conditioned worsened and she came to rely upon the support of her family; her daughter-in law who regularly helped her get out of bed and dressed, her husband who took time off work to support her and her sons who helped care for the claimant’s Mother, a task the claimant had carried out before the “relapse “in May/June 2019. The claimant’s recollection is that she had been in a depressive state for years and the mental health problems amounted to depression, or at the very least as conceded under cross-examination, she confirmed it was stress related when there was no diagnosis of depression in the early years and explained the severe difficulties facing her family and sister over a substantial period of time.

[14]The claimant described how she had felt when taking anti-depressant medication. It made her feel drowsy with no energy and she did not want to get dressed, and as a result she self-medicated through a relative who provided the across the counter medication, and I found there was no reason to disbelieve the claimant that this was the case, her priority being to look after four children, her own and her sisters.

[15]The claimant explained she had suffered from post-natal depression after the birth of her second child and this continued with the claimant feeling “low” with poor self-esteem”. This is not reflected in the GP records, however, taking the records as a whole there is no good reason why the claimant’s evidence cannot be relied upon as a reflection of what she felt at the time.

[16]I accepted on the balance of probabilities that the claimant had a history of mental health issues, whilst the GP records do not confirm she suffered from this continuously since 2010 or the birth of her second child, it from the records the claimant was on the occasions set out below, being treated by her GP for mental health issues.

[17]Turning to the more recent events the claimant gave oral evidence on crossexamination that she was depressed with suicidal thoughts leading to her attendance at the GP surgery in February 2019 when Fluoxetine was prescribed. The GP record recorded below confirmed the claimant had “no suicidal thoughts, no self-harm” in direct contrast to the claimant’s oral evidence. The claimant’s position is that she did not tell the GP the truth because she was frightened of being taken away from her family, and only recently disclosed she had suicidal thoughts. I considered whether the conflict in the evidence undermined the claimant’s credibility and on balance concluded it had not, given the fact that the GP record reflect the claimant had mental health issues and it is conceivable she was worried about bringing up suicidal tendencies when she had a family and disabled Mother who relied upon her.

[18]On the balance of probabilities, in contrast to the submissions made by Ms Firth, I accepted the claimant’s evidence that her mental health deteriorated in 2019 and the fact it may initially have been linked to menopausal symptoms found to be present by her GP in February 2019 were one and the same thing when it came to the effect of her depression on her day-to-day activities. I accepted on the balance of probabilities the claimant’s oral evidence that she experienced no difference between the depression she felt and menopausal mood swings the effects of which intermingled.

[19]By the 18 July 2019 the claimant was very unwell, and I took the view her deteriorating mental health had taken place over a period of time, accepting the claimant’s evidence on this which appeared to be logical and supported by the contemporaneous documentation. The 11.7 18 July 2019 GP entry recorded “feeling low mood for mths no suicidal intent or plans feels negative low esteem and low selfworth poor concentration and sleep disturbed concerns about mental health struggling at work dealing with customers”. Fluoxetine was prescribed 40mg daily – 56 capsules under repeat medication and the claimant has been taking anti-depressant medication since through to her dismissal and beyond. I have no reason to doubt the claimant’s evidence that the repeat prescription enabled her better “to cope” and without it she could not cope with the result that the effect of depression on day-to-day activities would have had an even greater substantial adverse effect.

[20]The claimant was diagnosed with reactive depression on 29 July 2019. Before and after this diagnosis the claimant, who believed she” suffering from a “relapse” in May/June 2019 was substantially prevented from carrying out he ordinary day-to-day activities. She had and continued to experience “regular sleepless nights” feeling in a “zombie like world” when feeling particularly low, poor concentration, becoming upset and emotional, struggling to care for her disabled Mother, not going out much after May/June 2019, struggling to get out of bed and neglecting personal hygiene, being unable to cook or clean and carry out other daily chores. The position deteriorated to such an extent that the claimant needed the support of her daughter-in-law to help her get out of bed, washed and dressed and the family took over the claimant’s other responsibilities, like looking after her Mother, which the claimant, who cried a lot, felt guilty about. The situation with the claimant’s family and the assistance the claimant required to function continued throughout the relevant period, beyond the effective date of termination to date. The medical records

[21]There are a number of medical records and reports in the bundle which reflect the claimant’s attendance at her GP surgery increased in 2019. I have not set out all of the relevant medical records read by me, having chosen those that best set out the medical background. The medical records, of which there were a considerable number as evidenced by the size of the bundle, to which I was taken to in the bundle included the following: 21,1 30 July 2020-reactive depression; duration 27 July 2020 – 26 October 2020. 21,2 21 July 2020 – “said feeling TATT which is not herself requesting blood tests. Said no energy to do anything, gets tired easily and early in the day. Said she does have trouble sleeping which is ongoing but no issues carrying out ADL in the past. She is taking Zopiclone. Denies any physical symptoms – has lost weight but she has cut some food from her diet…” 21.3 15 October 2019 – “feeling low in mood has had appear [appeal] in work rejected…no suicidal intent, tearful and crying feels low, let down…sleep disturbed. 21.4 7 October 2019 Fit note…reactive depression NOS, duration 07-Oct-2019 – 21Oct-2019…recent issues with work…still depressive features and loss of confidence anxiety.” 21.5 9 September 2019 – reactive depression “on Fluoxetine, states helping with low mood…not able to sleep as worried about the appeal process.” 21.6 29 July 2019 – reactive depression “continuing issues with depression low mood negative thoughts no suicidal intent…poor concentration/and struggling to cope with day to day tasks. 21.7 18 July 2019 “feeling low mood for mths no suicidal intent or plans feels negative low esteem and low self-worth poor concentration and sleep disturbed concerns about mental health struggling at work dealing with customers”. Fluoxetine was prescribed 40mg daily – 56 capsules under repeat medications. 21.8 15 February 2019 “Fluoxetine…30 capsules…menopause symptoms present…months of hot flushes, mood swings, irritable, occasionally tearful, no suicidal thoughts, no self-harm…in view of predominant mood sx…commence ssri and review 3 weeks but sooner if crisis, adv re: initiation side effects.” The claimant relies on this GP entry for her explanation that she did not inform her GP of suicidal thoughts because it was at this meeting the GP explained she may have to go into the crisis centre at Fazakerley Hospital, an explanation unsupported by the evidence given the reference to no suicidal thoughts and a common sense interpretation of the entry which clearly refers to the claimant coming back to her GP if there is a crisis with any side effects of the anti-depressant medication prescribed. The Tribunal on the balance of probabilities did however accept the claimant’s oral evidence that she experienced no difference between the depression she felt and Menopausal mood swings which to her the effects of which intermingled. 21.9 15 March 2018 “going through Menopause so has night sweats…no sleep disturbance…Postmenopausal bleeding…doesn’t normally have problems with mood.” 21.10 10 November 2010 stress related problem – depressed offered counselling, keen for anti-depressants, started Fluoxetine.” 28 capsules were prescribed. 21.11 29 October 2010 stress related problem 11.12 “stress related problem…has had some time off requested Med3 for short period – agreed…family stress – week.” 11.13 28 February 2003 – anxiety state Medical reports and occupational health reports

[22]In a report dated 27 August 2019 Dr Anten, the claimant’s General Practitioner confirmed he had made a diagnosis of reactive depression on the 18 July 2019 “this was secondary to a number of contributory factors, mainly domestic relating to her mounting responsibilities as main carer…She reported low self-worth and low selfesteem and deterioration in concentration and marked sleep disturbance. She admitted that these changes were impacting upon her ability to execute her job. She is on the front line working with customers…I agreed that the best approach would be to start taking the anti-depressant therapy and hypnotic-Zopiclone…she was temporarily unfit to perform her job on clinical grounds…”

[23]It is accepted the claimant was issued with a number of Statements of Fitness for Work citing reactive depression and it is notable that reasonable adjustments were not suggested by the claimant’s GP.

[24]The respondent obtained two occupational health reports; the first dated 2 December 2019 the second 3 January 2020.

[25]In the first occupational health report Ian Wharmby, RGN, noted he had been informed by the claimant that “she has been suffering from generalised depression for a number of years and is under the care of her GP and treatment that has been put in place generally helped her manage these symptoms on a day-to-day basis…a change in Mrs Gallagher’s working hours…compounded the difficult symptoms she was already experiencing and she became absent from work.” He found the claimant was not fit for any form of work “for at least another six to eight weeks…was suffering from reactive depression due to difficult circumstances that occurred in the workplace…this…caused a downturn in her moods…has had recent medication changes that is beginning to have some therapeutic benefit.”

[26]Mr Wharmby’s opinion was that “for many individuals who suffer some significant depressive relapse absences can go on for many months…therefore at this time a likely return to work cannot be predicted.”

[27]The second occupational health report is dated 3 January 2020 provided by RGN Ginnene Algar who confirmed “Donna explained she has experienced some depression in the past about 3.5 years ago where she recalled having some tablets. She thinks this is recurrence is due to how she perceived she has been treated at work. She described a very low mood with high anxiety…In my clinical opinion…Donna remains unfit for work. Donna remains unsure of things at times and got mixed up with the mental health questionnaire in that she reported suicidal ideation neatly every day in the last 2 weeks. She was reporting this from when she was first absent back in July and not in the last 2 weeks of her life.... showed severe depression and anxiety…I think her clinical care needs to be reviewed given her lack of progress…Depression and anxiety can return in people in 2 ways. The first is a relapse which usually happens within two months of stopping treatment from the initial episode…. People who suffer with depression or anxiety are more likely to be triggered by stressful life situation than someone who has never experienced mental health issues…” The claimant was found to suffer from a “severe level of anxiety and depression, which suggests her symptoms are interfering with her ability to carry out some normal daily activities…”

[28]Ms Firth correctly pointed out the contradictions in the two-occupational health report by the claimant’s reference to suffering from a generalised depression for “a number of years” and the reference to three and a half years in the second report. On the balance of probabilities, I took the view that the second occupational report confirmed the claimant was confused and got mixed up, and the phrase a number of years can amount to three and a half years with nothing hanging on the fact the claimant made no reference to ten years. It is clear from the medical evidence the claimant had a history of mental health issues and I have concentrated in any event on the position during the relevant period of her disability discrimination claims.

[29]I found the claimant’s oral evidence to be credible in the main, she was confusing the depression and anxiety suffered in the past which she genuinely believed continued from 2010 to date, despite the GP evidence which reflected the claimant did not seek treatment for years on end, and made no reference to reoccurring feeling of suicide and not wanting to “be here”. The claimant explained that she started taking anti-depressant for lengthy period of time in July 2019 and this was reflected in the medical notes and repeat prescription. The claimant clarified that before this date she had taken the decision not medicate as she found she could not function on anti-depressants and look after four children plus disabled Mother, instead a relative sent her over the counter herbal medication to which there was no reference in any of the GP records or the claimant’s impact statement. The claimant was not counselled and nor did she receive any other treatment from the medical professionals until after July 2019. On the balance of probabilities, I found that during the period in early 2019 leading up to and beyond July 2019 through to the effective date of termination, there was a substantial adverse effect on the claimant’s ordinary day-today activities, but this had not been the case in earlier years or “for many years” and/or since 2010 as the claimant now maintains relying on a muddled recollection of her mental health history. Nevertheless, the claimant was depressed at times prior to 2019, and I accept on balance the evidence that her mental health condition varied and fluctuated. Law: Disability status

[30]S.6(1) of the Equality Act 2010 (“EqA”) provides that a person, 'P', has a 'disability' if he or she 'has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.'

[31]Schedule 1 of the EqA 2010 sets out factors to be considered in determining whether a person has a disability. S.6(5) of the EqA 2010 provides for the issuing of guidance about matters to be taken into account in deciding any question for the purposes of determining who has a disability. When considering whether a person is disabled for the purposes of the EqA regard should be had to Schedule 1 ('Disability: supplementary provisions') and to the Equality Act (Disability) Regulations 2010, and the 'Guidance on matters to be taken into account in determining questions relating to the definition of disability' under 6(5) of the Equality Act 2010 should be taken into account.

[32]The relevant time to consider whether a person was disabled is the date of the alleged discrimination; see the well-known case of McDougall v Richmond Adult Community College

[2008] IRLR 227

[2008] ICR 431

[33]On behalf of the respondent the Tribunal as referred to Latchman v Reed Business Information

[2002] ICR 1453

stated: "the likelihood falls to be judged as it currently was, or would have seemed to have been, at the point when the discriminatory behaviour occurred… it is not what has actually later occurred but what could earlier have been expected to occur which is to be judged."

[34]Ms Firth submitted that it is particularly important with mental impairments that the claimant adduces evidence to prove that the same will be likely to last for at least 12 months. See, for example Royal Bank of Scotland v Morris

UKEAT/0436/10/MAA

: “The Claimant could in principle still argue that the (serious) impairment from which he did unquestionably suffer in October 2006 was – judged at that date (as required by the Richmond Adult College case (above)) – likely to last for at least twelve months, so as to fall under head (b). But again the evidence did not in our view justify such a conclusion. Dr O'Donovan's contemporary note simply diagnoses a “severe depressive episode”, with no prognosis of any kind: see paragraph 56 (3) above. The Tribunal could not without expert evidence form any view on the likelihood of that impairment (at the necessary level of seriousness) continuing for at least a year.

[35]Paragraph 5(1) of Schedule 1 to the EqA provides that an impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if measures are being taken to treat or correct it and, but for that, it would be likely to have that effect. In this regard, likely means ‘could well happen’ — the well-known case of Boyle v SCA Packaging Ltd (Equality and Human Rights Commission intervening)

[2009] ICR 1056

, HL In assessing whether there is a substantial adverse effect on the person’s ability to carry out normal day-to-day activities, any medical treatment which reduces or extinguishes the effects of the impairment should be ignored.

[36]For any claim to succeed, the burden is on the claimant to show, on the balance of probabilities, something an 'impairment' whether it is a mental or physical condition and the Tribunal was referred to the court of appeal decision in Kapadia v London Borough of Lambeth

[2000] IRLR 699

(CA)). In the case of Millar v ICR

[2005] SLT 1074

[2006] IRLR 112

, the Court of Session held that a physical impairment can be established without establishing causation and, in particular, without being shown to have its origins in any particular illness. The focus should be on what the claimant cannot do, and this test is particularly relevant the claimant’s case, especially in relation to the February menopausal symptoms resulting in depression.

[37]It is not appropriate to have an examination for the purposes of discovering the causes of an alleged disability, since, whatever the cause, a disability which produces the effects specified in legislation will suffice. In considering what amounts to an 'impairment', its effect, not cause is what is of importance. This approach is set out in the Guidance issued under the EqA 2010, where (at para A8) it is stated that 'it is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded. Conclusion – applying the law to the facts The claimant’s disability issue

[38]The claimant’s case is that she was disabled by the effects of the mental impairment of low self-esteem, anxiety and depression, and on the balance of probabilities I find that the claimant has discharged the burden to show she has an impairment which falls under section 6 of the EqA during the relevant period 18 July 2019 to 27 January 2020.

[39]For the reasons set out above I found the adverse effect on ordinary day-to-day activities was substantial and the condition long term. I noted short-term conditions do not qualify under section 6 of the EqA even they are severe and very disabling while they last, for example, severe depression, but was satisfied on balance that by 18 July 2019 under para 2(1) of Schedule 1 to the EqA, the effect of an impairment was likely to last for at least 12 months and therefore long term taking into account the claimant’s mental health history, the fact she was prescribed in the short-term anti-depressant medication in February 2019 for depression and again from 18 July 2019 which continued throughout and beyond the relevant period.

[40]For impairments that have not lasted 12 months, the test is whether the substantial adverse effects of the condition are likely to last for at least 12 months i.e. that an event is likely to happen if it ‘could well happen’ as set out the well-known House of Lords’ decision in Boyle cited above.

[41]When evaluating the ‘long-term’ nature of a claimant’s incapacity, the Tribunal must base its decision on all the objective evidence before it including the medical evidence relating to her conditions of depression, anxiety and low self-worth. In the occupational health reports obtained on behalf of the respondent the occupational health advisor accepted the claimant was suffering from reactive depression and the history she gave of her mental health condition. Mr Wharmby’s opinion as at 2 December 2019 was that “for many individuals who suffer some significant depressive relapse absences can go on for many months…therefore at this time a likely return to work cannot be predicted.” Based on Mr Wharmby’s objective medical opinion, bearing in mind he was preparing a report for the respondent, I am satisfied that as at July 2019 the substantial adverse effect of the claimant’s mental health condition could well last 12-months taking into account that by the 2 December 2019 when the report was compiled the claimant had been taking anti-depressant medication since July, which Mr Wharmby recorded the “recent medication changes…is beginning to have some therapeutic benefit.”

[42]Mr Wharmby was of the view the claimant “due to the length of time Mrs Gallagher has had a diagnosis of depression and more recently reactive depression…it is likely she would be afforded protection under the Equality Act 2010…ultimately not a medical decision but a legal one.” I have disregarded Mr Wharmby’s view of the claimant being protected under the EqA. I accepted Ms Firth’s submission that Mr Wharmby’s conclusion cannot be accepted at face value as he depended upon the information provided to him by the claimant, and after a careful analysis of the GP records it is apparent that they did not fully reflect the claimant’s understanding of her medical history, which may have been confused over time and as her feeling of depression deteriorated in early/mid-2019 when informed about the change in her shift pattern that allegedly impacted upon the caring role she had for her Mother.

[43]In the second occupational health report dated 3 January 2020 prepared on behalf of the respondent, RGN Ginnene Algar’s opinion was “people who suffer with depression or anxiety are more likely to be triggered by stressful life situation than someone who has never experienced mental health issues…Some research shows people have a significantly higher chance of depression/anxiety recurring if they experience 2 or more episodes in the 1st few years.” The claimant was found to suffer from a “severe level of anxiety and depression, which suggests her symptoms are interfering with her ability to carry out some normal daily activities…”

[44]Based on the “management advice” set out in the uncontradicted 3 January 2020 report, the earlier report of 2 December 2019 together with the contemporaneous evidence before me including the claimant’s oral evidence, I am satisfied on the balance of probabilities the substantial adverse effects experienced by the claimant with and without anti-depressant medication was likely to last at least 12-months from the 18 July 2019 and beyond the effective date of termination. In arriving at this decision, I did not accept Ms Firth submission that it is particularly important with mental impairments the claimant adduces expert medical evidence to prove that the same will be likely to last for at least 12 months relying on the UKEAT decision in Royal Bank of Scotland v Morris cited above. In that case the EAT (the then President of the EAT, Mr Justice Underhill, presiding) held that there was simply insufficient evidence before the tribunal for it to draw any conclusions on essential elements of the definition of disability, including the duration or likely duration of M’s impairment. A psychiatric registrar’s report indicated that on 19 October 2006 M had a mental impairment that substantially affected his ability to carry out normal day-to-day activities. But this evidence did not justify any finding about how long this was the case. There was no evidence of serious continuing symptoms, and on 16 November 2006 the same doctor saw M again and reported that his condition was much improved. The EAT acknowledged that this improvement might only be as a result of the medication M was taking, so that he could rely on a ‘deduced effect.’ In the EAT’s view, this was ‘just the kind of question on which a tribunal is very unlikely to be able to make safe findings without the benefit of medical evidence’. Similarly, it would be difficult for the tribunal to assess the likelihood of the risk of recurrence, or the severity of any such recurrence, without expert evidence.” The claimant’s case can be differentiated in that I took the view there was sufficient evidence from the medical reports obtained by the respondent coupled with the GP records and the fact Mrs Gallagher’s mental impairment did not improve, unlike Mr Morris. Mr Hayes submitted that Mr Morris, unlike the claimant, was offered a specialist medical report to comment on the longterm issue, and he actively refused it in contrast to the claimant’s case where the Tribunal has been given all of the evidence.

[45]In conclusion, the claimant was disabled in accordance with section 6 of the Equality Act 2010 with a mental impairment of depression, anxiety and low self-esteem in the relevant period 18 July 2019 to 27 January 2020. 11.01.2021

[1]The claim of direct discrimination is not upheld and is dismissed

[2]The claim of victimisation is not upheld and is dismissed

[3]The claim of unfair dismissal is not well-founded and is dismissed

[4]The claim of discrimination arising from disability is upheld

[5]By an ET1 Claim Form presented on 29 May 2020, the claimant indicated that she was raising the following complaints: 5.1. Unfair dismissal 5.2. Direct discrimination (by reference to her mother's disability) 5.3. Discrimination arising as a consequence of her own disability 5.4. Indirect discrimination (by reference to her mother's disability) 5.5. Indirect discrimination (by reference to her sex) 5.6. Failure to make reasonable adjustments 5.7. Victimisation

[6]The matter came before the Employment Tribunal at a Preliminary Hearing ("the first PH") held on 7 October 2020 at which the complaints and issues arising were fully discussed, both parties being legally represented. The matter was listed for a three day Final Hearing to determine liability only and Case Management Orders made. The respondent did not concede that the claimant was at the relevant time a disabled person as defined and this issue was listed to be determined at a further Preliminary Hearing ("the second PH") on 11 January 2021

[7]At the first PH, the claim of failure to make reasonable adjustments was withdrawn and that claim was dismissed. Subsequent to the first PH, the claimant withdrew her two claims of indirect discrimination and these claims were dismissed at the second PH

[8]The judgment of the Tribunal at the second PH with regard to the disability issue was that: "The claimant was disabled in accordance with section 6 of the Equality Act 2010 with a mental impairment of depression, anxiety and low selfesteem in the relevant period 18 July 2018 to 27 January 2020"

[9]The respondent has conceded that the claimant's mother was at all relevant times a disabled person, as defined, by reason of physical impairment Issues

[10]The issues falling to be determined in this claim were discussed at the first PH but, as indicated, not all the original claims were pursued . A document setting out the remaining draft issues was agreed between the parties for the purposes of this hearing. This was discussed at the outset of this hearing and the following issues to be determined were identified (albeit re-ordered) between the Tribunal and the parties: Disability – section 6 Equality Act 2010 10.1. These elements of the issues are set out for completeness only 10.2. As indicated, it has been found that the claimant was at all relevant times (namely between 18 July 2018 and 27 January 2020) a disabled person, as defined, by reference to the conditions of depression, anxiety, and low selfesteem 10.3. As further indicated, it is conceded that the claimant's mother was at all relevant times a disabled person, as defined, by reason of physical impairment 10.4. It is further conceded by the respondent that it knew or ought to have known of the disabilities of both the claimant and her mother Time 10.5. In respect of the Equality Act claims, the respondent raises the following time issue: 10.5.1. any conduct relied on which took place prior to 15 January 2020 is, on its face, out of time 10.5.2. does any such conduct form part of a continuing act with conduct which, on its face, is in time? 10.5.3. if not, is it just and equitable to extend time so as to bring any out of time conduct within the Tribunal's jurisdiction? Direct discrimination – Section 13 Equality Act 2010 10.6. Did the respondent impose, on 4 June 2019, a shift pattern that required the claimant to work three out of four weekends and change her hours of work during the week? 10.7. Was that imposition because of her mother's disability? Victimisation 10.8. Did the claimant's grievance of 25 July 2019 amount to a protected act? 10.9. The claimant relies upon the following conduct of the respondent: 10.9.1. commencing an absence management procedure on 12 August 2019 10.9.2. failing to pay SSP in November 2019 10.9.3. dismissing the claimant on 27 January 2020 10.10. Did the above conduct or any of it amount to a detriment? 10.11. Was the reason for such conduct because of the claimant's grievance of 25 July 2019? Unfair dismissal 10.12. What was the reason or principal reason for dismissal and was it a potentially fair reason in accordance with sections 98(1) and (2) of the Employment Rights Act 1996 ("ERA")? The respondent asserts that it was a reason relating to the claimant's capability 10.13. Was the dismissal fair or unfair in accordance with the provisions of section 98 (4) of the ERA? Discrimination arising from disability – Section 15 Equality Act 2010 10.14. Was the claimant's long-term absence: 10.14.1. the reason for her dismissal on 27 January 2020? 10.14.2. something arising in consequence of her disability? 10.15. If yes, did the dismissal amount to unfavourable treatment? 10.16. If yes, was dismissal a proportionate means of achieving a legitimate aim? The respondent relies upon absence management as a legitimate aim 10.17. If the answer to issue 10.14.2 is yes, did the respondent's decision to invoke the absence management procedure on 12 August 2019 amount to unfavourable treatment? 10.18. If yes, was this decision a proportionate means of achieving a legitimate aim? Facts

[11]The Tribunal heard oral evidence from the claimant herself and also Ms Joan Dewsbury, a former work colleague and her Trade Union representative. The respondent called, to give oral evidence, a total of five witnesses: Ms Helen Yates, Section Manager; Ms Susan Waller, Section Manager; Ms Celia Roberts, Store Manager; Ms Carmen Tregartha, Deputy Store Manager; and Ms Amy Higham, Deputy Store Manager

[12]The parties had agreed a final hearing bundle and reference to numbered documentation within this Judgment is by way of reference to pages as numbered within such bundle

[13]The Tribunal came to its conclusions on the following facts - limited to matters relevant or material to the issues - on the balance of probabilities, having considered all of the evidence before it both oral and documentary

[14]The respondent is a very well-known large national retailer with which the claimant initially commenced employment as a Customer Assistant in 1997

[15]The respondent had an Attendance at Work Policy which was replaced, in or about December 2019, with a Sickness Absence Policy [see pages 72 - 85 and 86 -94]. There was no material or relevant change in terms of process

[16]In or about June 2016 the claimant transferred from the respondent's Bootle store to its Queen's Drive (Liverpool) store

[17]Subsequently, on 29 July 2016 the claimant agreed with the respondent a "Carer's Passport" [pages 114 - 115]. This arose from the claimant's caring responsibilities for her mother who was described as "wheelchair bound". The claimant had moved into her mother's house to support and care for her

[18]As part of the preamble to the document, it is stated that: "This conversation and document will remain confidential between you and your line manager unless you want to share this more widely. This is your document and it's yours to share with a new line manager if you move or if your line manager changes. For our records we will also keep a copy on your p-file for future reference. You should work with your line manager to keep your passport as up to date as possible; remember, recording the agreements doesn't mean that they will never need to change to either reflect your own circumstances and the changing operational needs at work". (Within the claimant's contract – see page 103 – the respondent "reserves the right" to change hours and/days or work if the trading pattern and/or operational requirements of the store change)

[19]The Passport confirmed that the claimant had agreed hours of working. Her contractual working hours included finishing at 9pm on a Wednesday evening and starting at 6am the following day, despite this appearing to be in breach of the Working Time Regulations

[20]By a letter (undated but sent in or around May 2019) from her Store Manager [page 116], the claimant was advised that her "current contract may be required to be changed in order to fit the store operation and our customer demands". Attached was a "weekend working proposal" [page 136] which, it was said, "hopefully will give some context around the changes". The claimant was invited to a one to one meeting on 4 June 2019 "to discuss with your line manager the proposed changes to your contract". What was being proposed was an across the board revision of the work pattern of all employees at the Queen's Drive store with contractual hours of 20 or less per week

[21]The claimant had worked varying hours and days during her employment with the respondent but at this point she was working 19.75 hours per week

[22]The meeting proceeded as arranged on 4 June 2019 with the claimant's line manager Ms Helen Yates. The claimant was accompanied by her Trade Union representative Ms Joan Dewsbury. There are handwritten notes of the meeting at pages 117 – 120. The discussion centred around the claimant's caring responsibilities for her mother and what this meant in terms of the shifts she was able to work

[23]By letter dated 29 June 2019 [page 121], the Store Manager wrote to the claimant confirming that the piece of work over the required level of staffing over the weekends had been completed "in line with our customer demand curve". A "new adjusted working pattern in line with our store's requirements" was enclosed [page 122] and it was stated that "the changes take effect from week commencing 4th August 2019 in line with Policy"

[24]The shift pattern for the four weeks from 4 August 2019 provided for the claimant to work 3 out of 4 Saturdays, 2 out of 4 Sundays and 2 out of 4 Fridays

[25]On 17 July 2019, the claimant had a follow up meeting with another line manager, Ms Susan Waller, in which she discussed the difficulties the proposed change gave rise to in light of her caring responsibilities for her mother. The claimant made it clear that she was unable to work the Friday shift due to her caring responsibilities and further discussion centred around moving this to a Thursday. However the system would not allow the claimant to be rota-ed for times that would put the respondent in breach of the Working Time Regulations and no final agreement was reached as to a position that satisfied both parties

[26]The claimant attended her GP on 18 July 2019 and was signed off sick with "reactive depression" for two weeks [page 125]. (She did in fact then remain off work by reason of ill-health throughout the remainder of her employment with the respondent)

[27]On 25 July 2019, the claimant lodged a "Formal Grievance Form" [pages 129 – 130], setting out in an accompanying letter the substance of her grievance [pages 131 – 132]. Her grievance concerned the change of hours proposed and the potential impact this would have upon her with particular regard to her caring responsibilities

[28]The covering letter includes the statement that: "I am sure I don't need to remind you that if you are looking after someone who is older or has a disability, you are protected against discrimination or harassment because of your caring responsibilities under the Equality Act 2010"

[29]The claimant was advised that her pay would be withheld during her absence and, in addition to raising this issue in her grievance letter, she further raised a separate specific complaint over the respondent's failure to pay Company Sick Pay ("CSP") by letter dated only July 2019 [page 128]

[30]By letter dated 26 July 2019, the Store Manager set out the reasons why CSP had been withheld [page 138]. This letter advised that the respondent retained the right not to pay CSP, for example, "if there is evidence to show that a colleague is absent as a result of a company decision or they are unhappy with the outcome of a grievance or appeal" and that, for various reasons set out, "we have evidence to believe that your absence is work-related"

[31]By letter dated 1 August 2019, the claimant was invited to attend a formal meeting to discuss her grievance. This meeting went ahead as scheduled on 6 August. Notes of the meeting are at pages 141 – 152. It was conducted by Ms Celia Roberts, a Store Manager, who sought further details from the claimant as to the content of her grievance

[32]The outcome of the grievance meeting was set out by Ms Roberts in a letter dated 9 August 2019 [pages 154 – 156]. The grievance was effectively rejected but Ms Roberts stated that: "Having reviewed the four weeks of the demand curve, I do believe that there could be a compromise to ensure that you can care for your Mother and that the store demand curve would be met." The stated understanding of Ms Roberts was that the claimant would be prepared to compromise with her hours

[33]On 9 August 2019, the claimant was issued with a further GP note signing her off sick for a period of one month [page 153]

[34]The claimant appealed against the grievance outcome by letter dated 12 August 2019 [page 157]. She was asked to expand upon the basis upon which she was appealing [page 158] which she did [pages 159 -160]

[35]By letter of the same date, 12 August 2019, the claimant was invited to attend a meeting with Ms Susan Waller to discuss her sickness absence [page 167] in accordance with the respondent's Attendance at Work Policy

[36]This meeting proceeded on 15 August 2019 and the handwritten notes are at pages 169 – 172. The content of the meeting was summarised by Ms Waller in her letter of the same date [page 173]

[37]Ms Waller confirmed that the respondent would endeavour to help the claimant back to work and consider any reasonable support but also that continued absence may ultimately lead to her dismissal

[38]On 18 August 2019 the claimant was issued with a further GP note for a period of two weeks [page 125]

[39]On 29 August 2019 Ms Waller held a telephone catch up with the claimant [notes at page 174]. The claimant indicated that she did not have a date to come back to work

[40]There was a further telephone catch up on 4 September 2019 but with no progress indicated [page 175]

[41]By letter dated 6 September 2019 [page 176], Ms Waller invited the claimant to a follow up meeting to discuss her sickness absence on 12 September but this did not proceed [page 178]

[42]Ms Waller rearranged the long term ill-health meeting for 17 September 2019 [pages 180 – 182]. She confirmed the outcome by letter dated the same day [page 183]. The outcome remained unchanged from the previous meeting

[43]On 26 September and 3 October 2019, there were further telephone catch ups with the claimant [pages 184 and 187]. The outcome was again summarised by Ms Waller by letter dated 3 October 2019 with again very similar wording as followed the earlier meetings [page 188]

[44]By letter dated 3 October 2019 [pages 164 – 166], Ms Tregartha set out the outcome of the grievance appeal which she had heard on 11 September 2019. The appeal was not upheld in respect of both of the issues raised namely, the refusal to pay CSP and the co-relation between the claimant's health and wellbeing and her caring commitments. In respect of the former, Ms Tregartha was satisfied that the claimant's ill-health absence was as a result of the "conversation" over her working hours. In respect of the latter, Ms Tregartha believed the claimant had been given support but that her working hours needed to be reviewed

[45]On 7 October 2019, the claimant was issued with a further GP note for a period of two weeks [page 189]

[46]On 9 October 2019, a third long term ill-health meeting was cancelled due to the claimant being unwell [page 190]

[47]On 18 October 2019, the claimant was issued with a further GP note for a period of two weeks [page 196]

[48]On 29 October 2019, the rearranged third ill-health meeting between the claimant and Ms Waller took place [pages 198 - 200]. It was agreed that an Occupational Health Report would be obtained

[49]On 1 November 2019, the claimant was issued with a further GP note for a period of one month [page 202]

[50]By email of 22 November 2019, the claimant's husband set out on her behalf a complaint that she had not been paid the Statutory Sick Pay ("SSP") to which she believed she was entitled [pages 203 - 204]

[51]On 26 November 2019, the respondent notified the claimant that her not receiving SSP had been an administrative error and, having apologised and summarised their discussion, confirmed that SSP would be paid and back dated [pages 207 - 208]

[52]On 29 November 2019, the claimant was issued with a further GP note for a period of two months [page 216]

[53]An Occupational Health Report concerning the claimant was sent, as agreed and requested, to the respondent by letter dated 2 December 2019 [pages 217 - 219]

[54]The Report summarised that the claimant "is suffering from reactive depression due to difficult circumstances that occurred in the workplace that impacted her domestic responsibilities"

[55]In terms of when the claimant may be able to return to work, the Report states that: "Due to the severity of the symptoms [the claimant] is experiencing and also her presentation to me at the time of the consultation, I would expect her absence to continue for at least another six to eight weeks possibly longer". The Report goes on to say that, in view of the nature of the illness, " at this time, a likely return to work date cannot be predicted"

[56]In terms of "adjustments or modifications that may assist", the Report advises that when the claimant is able to consider returning to the workplace, "I would recommend a management meeting to put in place a supportive package of working hours that takes into consideration her care duties. In my opinion, it is important that [the claimant] is fully aware of this before a return to work commences". A further recommendation is a phased return to work

[57]In terms of possible re-occurrence, the Report concludes that there is "no reason to assume that with adequate work supportive measures in place [the claimant] should not be able to continue" her good attendance record

[58]On 12 December 2019, Ms Waller held a further telephone catch up with the claimant [page 220]

[59]On 18 December 2019, Ms Waller conducted a fourth ill-health meeting with the claimant by telephone [pages 228 - 230]. They discussed the likelihood of the claimant returning to work in the context of the Occupational Health Report. It was agreed that a further Occupational Health Report would be obtained

[60]On 19 December 2019, the claimant raised a further Formal Grievance, this being in regard to the failure to pay SSP [pages 231 - 232]

[61]A response to that grievance was given on 23 December 2019 [page 233]. It confirmed that the issue had been resolved by the previous admission that there had been an administrative error and that payment of SSP would be made. It further confirmed that any internal disciplinary action arising would remain confidential and that a financial settlement would not be part of any grievance outcome. By further email dated 24 December 2019 [page 234], the claimant confirmed that, having taken legal advice, she nevertheless wished to pursue her grievance formally

[62]A second Occupational Health Report was issued on 3 January 2020 [pages 236 - 237]. This indicated that the claimant was fit for work undertaking her substantive role and contracted hours, but her "severe level of anxiety and depression" was preventing her return to work. She would require further treatment but "from today's appointment there is no foreseeable return to work date"

[63]On 14 January 2020, the respondent conducted a fifth long term ill-health meeting with the claimant [pages 239 - 244]. Ms Waller confirmed the outcome by letter dated the same day [page 245]. The prospect of the claimant's return remained open-ended but details of the availability of counselling were to be provided

[64]On 24 January 2020, the claimant was issued with a further GP note for a period of one month [page 249]

[65]On 24 January 2020, there was a sixth, and what turned out to be a final, long term ill-health meeting conducted by Ms Waller with the claimant [pages 250 - 260]. The claimant had been called to this meeting by letter dated 20 January 2019 [page 247]. This letter had indicated this was a "final ill-health meeting" and that a potential outcome was dismissal. The claimant's position was that her situation was essentially unchanged. When asked if she could see herself returning to work in the next 4 – 6 weeks, the claimant replied that she didn't know and can't answer that. She was asked: "If I do a well-being plan with you and look at hours around care for Mum, would you come back to work?" Her reply was: "Yes but the way feeling at the moment can't say when" [page 259]

[66]The meeting was adjourned for Ms Waller to take HR advice and reconvened on 27 January 2020 [pages 272 – 274] (confirmed by letter dated 24 January 2020 [pages 261 – 262]). In answer to the question "If I was to give you the hours you want would you return?", the claimant replied: "That's all I ever asked for. Can't say if I feel ok to come back". In answer to the follow up question "How soon could you come back?", the claimant replied: "Just been the GP and signed off for another month". At that point the meeting was adjourned for Ms Waller to speak to her HR department after which she advised the claimant: "I have considered all the points of the absence and looked at and offered the hours you want along with any other adjustments offered and the most recent OH referral and decided to ill-health dismiss you today as the level of your absence is no longer sustainable". The claimant was told she was being dismissed with pay in lieu of notice. When ultimately she was asked if there was anything she wanted to say, she replied: "Wouldn't be here if listened to in the first place" [page 272]

[67]The outcome was confirmed in writing by Ms Waller by letter dated 28 January 2020 [pages 275 - 276]. The claimant was confirmed as having been dismissed with pay in lieu of notice. The "considerations and reasons" for the decision were set out as follows:• During your final ill-health meeting we discussed moving your contracted hours to whatever hours you wanted to enable you to return to work while also caring for your mum. Also completing a well being adjustment plan together to support you to manage your depression while in work along with any other reasonable adjustments you felt would help you. You still could not see yourself returning to work in the foreseeable future

• All adjustments offered were declined by yourself, and you were unable to provide any further adjustments that you felt would support a return to work

• You have followed your GP's advice throughout this absence including taking the prescribed medication and following self help suggestions however you have advised your medical condition has not improved since the original date of your absence

• The impact your continued absence is having on the operational requirements of the store and your colleagues

• Your PAM occupational health report states that they are unable to predict how long it will take for you to have a level of wellbeing consistent with a return to work and therefore they cannot see a return to work in the foreseeable future

• Your length of service has been considered, but with no imminent return to work a decision needed to be made around your continued employment

[68]The claimant exercised her right of appeal by completing an Appeal Form dated 5 February 2020 [pages 277 - 278]

[69]The appeal hearing proceeded on 3 March 2020 conducted by Ms Amy Higham [pages 291 - 299]. There was discussion surrounding the basis upon which the claimant could return to work. She was asked: "Do you want to be reinstated on your original hours?" Her reply was: "I don't think I could return to work as I don't trust m and s anymore." [see page 294] She asked her husband to speak on her behalf as to the outcome she was seeking. He stated that: "[The claimant] believes that there is a breakdown of trust between herself and m and s due to the ignorance of m and s. … The only outcome [the claimant] is looking for is a settlement and to go separate ways." [see page 295] The claimant was asked if she was happy with what her husband had said and she confirmed that she was [see page 298]

[70]The outcome of the appeal was confirmed by letter (undated) [pages 300 – 303]. The appeal was rejected with specific reference to the fact that the claimant did not want to be reinstated and was looking for financial compensation Legal Framework

[71]Section 98(1) of the Employment Rights Act 1996 ("ERA") states: In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show:(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held

[72]Relating to the "capability of the employee" is one of the reasons set out in subsection (2)

[73]Section 98(4) of the ERA states: Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

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

[74]It is for the employer to prove the reason for dismissal. The application of section 98(4) has a neutral burden of proof

[75]The Tribunal must not substitute its own view for that of the employer unless the latter falls outside the band of reasonable responses (Iceland Frozen Foods v Jones

1983 ICR 17

). This applies to procedural as well as substantive matters (Sainsburys v Hitt

2003 ICR 111

[76]Section 13 of the Equality Act 2010 ("EqA") states that: (1) A person (A) discriminates against another (B) if, because of a protected characteristic [in this case, disability], A treats B less favourably than A treats or would treat others

[77]Section 15 of the EqA states that:(1) A person (A) discriminates against a disabled person (B) if - (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability

[78]Section 27 of the EqA states that:(1) A person (A) victimises another person (B) if A subjects B to a detriment because- (a) B does a protected Act, or (b) A believes that B has done, or may do, a protected act

(2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

[79]The burden of proof in discrimination claims rests initially with the claimant but section 136 EqA provides that if there are facts from which the Tribunal could decide, in the absence of any other explanation, that the respondent has acted in a way that is unlawful, the Tribunal must uphold the complaint unless the respondent shows that it did not so act

[80]This requires a two-stage process. First, the complainant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an unlawful act of discrimination against the complainant. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal ‘could conclude’ (namely, that a reasonable Tribunal could properly conclude from all the evidence before it) that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. The second stage, which only applies when the first is satisfied, requires the respondent to prove that it did not commit the unlawful act. However, it is not necessary for the burden of proof rules to be applied in an overly mechanistic or schematic way Submissions

[81]The representatives of both the respondent and the claimant prepared and spoke to written submissions, including reference to relevant case law, which, being on record, are not repeated in this Judgment but were fully considered by the Tribunal Conclusions Direct Discrimination

Conclusions

[82]Although there is a time issue regarding this claim, the Tribunal considered the substantive merits within its overall deliberations

[83]There is no question but that the respondent did or proposed to (in the sense that, as a consequence of her long-term sickness absence up to the date of her dismissal, the claimant did not actually return to work) impose a change in shift patterns for the claimant on 4 June 2019. That fact is not disputed by the respondent

[84]Although this was an across the board exercise involving all employees working 20 hours per week or less, no actual comparator was identified and the parties were essentially in agreement as to the identification of the appropriate (hypothetical) comparator. This would be an employee employed for 20 hours or less per week without caring responsibility for a disabled relative

[85]The question for the Tribunal to resolve is whether or not this action was less favourable treatment "because of" the disability of the claimant's mother, namely, by association

[86]The Tribunal noted, as indicated, that the exercise carried out by the respondent in this respect was not solely in respect of the claimant but for all members of staff with a contractual working week of 20 hours or less of whom the claimant was one

[87]There was no suggestion by the claimant in her evidence – and nothing in the evidence otherwise before the Tribunal – that the fact that the claimant had caring responsibilities for her mother caused any concern on the part of the respondent in regard to the claimant's ability to perform her work or otherwise. They had in fact previously accommodated this by agreement within the arrangements agreed within the claimant's Carer's Passport

[88]Reliance is placed by the claimant's representative upon the particular impact of this proposed change upon the claimant but it is upon the treatment and the reason for it that the Tribunal must focus

[89]In the Tribunal's view, the combination of the "across the board" nature of the proposal - with no evidence that any comparator was or would have been treated any differently - coupled with the absence of any indication of concern over the claimant's caring responsibilities, leads to a conclusion that the proposal was in no way motivated by the claimant's caring responsibilities with regard to her mother and there was accordingly no less favourable treatment

[90]As to the time point, the first consideration is whether or not this step on the part of the respondent amounts to a continuing act. In the Tribunal's view it is properly categorised as a one off decision that had continuing effect rather than a continuing act

[91]In such circumstances, the claim is clearly brought out of time and the Tribunal then has to consider whether or not it is just and equitable to extend time (see section 123(1)(b) of the ERA)

[92]The claimant was sufficiently concerned as to the proposed change to raise a formal grievance as early as July 2019. She subsequently advised the respondent in December 2019 [page 234] that she had sought "legal advice from an external source" with regard to the grievance process. Although the claimant has throughout the process been a disabled person by reference to mental impairment, there has been no suggestion by or on her behalf that this in any way baulked her from pursuing a claim should she have wished or chosen to do so

[93]The Tribunal's conclusion therefore is that this claim is out of time and it is not just and equitable to extend that time with the consequence that the Tribunal does not have jurisdiction to hear the claim

[94]Accordingly this claim fails by reason of lack of jurisdiction and would otherwise fail substantively Victimisation

[95]It is not conceded by the respondent that the grievance of 25 July 2019 amounts to a protected act as defined

[96]The Tribunal notes that, having set out the claimant's concerns as to the actions of the respondent in terms of the proposed change to her hours, the grievance specifically contains reference to the Equality Act 2010. The claimant makes it clear in her grievance that she feels she has been wrongly or badly treated with reference to her caring responsibilities

[97]Whilst accepting that the grievance does in essence set out an allegation that the Equality Act 2010 has been breached, it is argued on behalf of the respondent that this arises out of an erroneous interpretation of the provisions of the Act. The Tribunal does not accept the argument that this negates the fact that there is an allegation of a breach and (so far as it is relevant) that it is made in good faith. Without question, it appears to the Tribunal, it is clear – from the express reference itself - that the grievance is something done connected with the Equality Act

[98]On any proper analysis of the grievance, this leads in the view of the Tribunal to a clear conclusion that the grievance is something done in connection with the Equality Act and/or alleges that the respondent has contravened the Act

[99]The Tribunal is accordingly satisfied that the grievance does amount to a protected act as defined

[100]The Tribunal considered in turn each allegation said to amount to a detriment, namely: 100.1. commencing an absence management procedure on 12 August 2019 100.2. failing to pay SSP in November 2019 100.3. dismissing the claimant on 27 January 2020

[101]The failure to pay SSP is conceded as amounting to a detriment. The commencement of the absence management policy and the dismissal of the claimant are not conceded as amounting to detriments. The respondent's representative did not seek to pursue any argument beyond the bare failure to concede these latter points, other than what seemed to the Tribunal to be a somewhat novel point that, in the context of the facts of this claim, it would have been unfavourable treatment not to have dismissed the claimant

[102]The Tribunal is satisfied without question that all of the above steps taken by the respondent amount to detriments, namely that they put the claimant to a disadvantage. The commencement of the absence management policy had the potential to, and did in fact, culminate in the dismissal of the claimant

[103]Were all or any of the actions "because of " the protected act(s)?

[104]Beyond the basic chronology – that is to say that the detriments relied upon post-date the claimant's grievance – there has been no evidence produced to the Tribunal which would suggest the actions relied upon were taken because of the fact that the claimant had raised her grievance

[105]The commencement of the absence management procedure was in accordance with the claimant's written procedures both in terms of the steps taken and the timing, in the light of the claimant's sickness absence

[106]The failure to pay sick pay was explained as an administrative error which was quickly corrected by the respondent. Although it is surprising that a company of the size and with the resources of the respondent should make such a basic and fundamental error, no evidence was produced to the Tribunal to suggest in any way that this error was connected to the raising by the claimant of her grievance. The Tribunal accepts the respondent's evidence in this regard that this was an error that should not have occurred but the fact that it did was in no way connected with the fact that the claimant had raised her grievance. It was an error that was corrected as soon as it was brought to light by the claimant

[107]The dismissal of the claimant followed a prolonged exercise of the respondent's absence procedures which culminated a significant period of time after the grievance was raised. There is no evidence, in a general sense, that the respondent took exception to the fact of the claimant raising the grievance. It was a grievance raised formally in accordance with the respondent's procedures and dealt with accordingly. It must be assumed, given the size of the respondent, that it receives and deals with numerous formal grievances

[108]The Tribunal is accordingly satisfied that there is no connection between the protected act and any of the detriments relied upon and accordingly this claim also fails

[109]Again, there is also a jurisdictional point in this claim but relating solely to the failure to pay SSP. The commencement of the absence management procedures are regarded by the Tribunal (and conceded by the respondent) as clearly part of a continuing act up to and including the dismissal of the claimant and therefore the claim as based upon these detriments is in time

[110]The Tribunal's clear view is that the failure to pay SSP is a stand alone action and not part of a continuing act. The claim based upon that detriment is accordingly out of time and the Tribunal's analysis on the question of the potential for a just and equitable extension is as set out above

[111]The element of the claim arising from the failure to pay SSP therefore would fail by reason of lack of jurisdiction. In terms of substantive issues, however, all elements of the claim fall Unfair dismissal

[112]The Tribunal reminded itself throughout its deliberations that it is not to substitute its own view for that of the respondent but rather to apply the test of reasonableness to the entirety of the process

[113]There is no dispute between the parties that the reason for dismissal is capability, namely the long-term sickness absence of the claimant. It is further not in dispute between the parties that the respondent followed its internal procedures in terms of meeting with the claimant and including the obtaining of Occupational Health Reports. There is accordingly no allegation of procedural unfairness

[114]The essential issue between the parties is whether or not, given the overall circumstances, it was fair or unfair on the part of the respondent to dismiss the claimant when it did in the circumstances pertaining at the time. This would include whether or not the respondent could reasonably be expected to wait any longer, the claimant's views and her medical condition. The Tribunal, in answering this question, is to take into account the size and administrative resources of the respondent's undertaking

[115]The respondent chose to separate out the "ill health" issue from the "shift pattern" issue when it would be apparent to any employer acting reasonably that the two issues were inextricably linked. Even if it could be said that the interlinking of the two matters was not reasonably apparent, the correlation was emphasised by the Occupational Health Report obtained by the respondent in December 2019

[116]Although therefore the respondent on the face of matters followed its long-term ill-health process, it did so completely divorced from the very issue that was causing the absence. This view is reinforced by the respondent's own reliance upon the claimant's illness being occasioned by work conditions as the reason not to pay CSP

[117]The failure to combine the issues – or at the very least to see each in the context of the other - led the respondent to a position where it took the decision to dismiss essentially based on an impasse. The respondent was saying that it needed the claimant to return to work and then the issue of shifts could be further discussed whereas the claimant sought to have certainty as to her working pattern before returning. The first Occupational Health Report of December 2019 expressly supported the claimant's view in this regard but this was not followed by the respondent

[118]At the dismissal meeting, resumed on 27 January 2020, the claimant was asked whether she would return if given the hours she wanted. The response of the claimant was to point out that a further sick note had been issued for a period of one month. Essentially what the claimant was asking for was a period of up to one month to consider her position.

[119]The conclusion of the respondent was not to grant that but to proceed to an immediate decision to dismiss. Was that a reasonable step to take in all the circumstances?

[120]The Tribunal notes that the claimant's ill health was caused, or at the very least materially contributed to or exacerbated, by the respondent's attempt to change the claimant's shifts. As indicated, this was the basis upon which the respondent declined to pay CSP to the claimant. The case of Royal Bank of Scotland v McAdie

[2008] ICR 1087

makes it clear that it is not automatically unfair to dismiss under such circumstances but the employer should be prepared to "go the extra mile" including the possibility of extending the period prior to dismissal. The obvious "extra mile" in this case is to defer the decision whether or not to dismiss by a period of up to one month. The Tribunal does not accept that not to defer for this period is a reasonable stance for a reasonable employer to take. The respondent is a very large well-resourced organisation. Although general reference was made by the respondent's witnesses that any staff absence can have a detrimental impact on a store and potentially its customers, no evidence whatsoever was produced to the Tribunal to indicate that, specifically, the claimant's ongoing absence for a further month would put the respondent to any material difficulty, or in fact any difficulty at all, in terms of serving its customer base or by placing an unacceptable burden upon her colleagues or generally by impact upon the respondent's finances. The suggestion was made in the respondent's witness evidence that each individual store needs to be considered as a stand-alone entity. No explanation was proffered as to why, when there is one common owner of all of the stores, this should be the case. No evidence was produced that this was in practice the position. No reason was put forward, for example, as to why staff could or would not be swapped between stores to meet demand or necessity. The further suggestion was made that "retail" is a very low profit margin business and that the Tribunal should take judicial note both of this contention and that any absence has an impact on operating profits. The Tribunal does not agree that such propositions are so obvious, particularly for an operator the size of the respondent and concerning an employee at the level of the claimant, that judicial notice should be taken and no economic-based evidence to back up these contentions was produced to the Tribunal

[121]Had the matter rested there, the Tribunal's conclusion in all the circumstances therefore would have been that the dismissal of the claimant was unfair. However the matter did not rest there

[122]It is trite law (see for example Taylor v OCS Group Limited

[2006] EWCA Civ 702

) that the whole process, including investigation up to a disciplinary hearing and any appeal following a decision to dismiss, must be taken into account and the facts considered in the round when determining whether a dismissal is fair or unfair

[123]At her appeal hearing, the claimant was given the option of returning to work under her previous shift pattern which would therefore, on the face of matters, address her concerns. (The respondent's witnesses were unable to address how this may have worked given the apparent position that the claimant's prior working hours were, upon cursory analysis, in breach of the Working Time Regulations. This however was the specific offer made.) The claimant did not need further time to consider this proposal at this stage but was clear in her expressed view (and specifically in approving the position outlined by her husband on her behalf) that she could not return to work for the respondent under any circumstances. What she was seeking was some form of financial recompense for the fact that she had been dismissed and placed in this position

[124]The Tribunal is satisfied on the evidence that this was not a spur of the moment decision by the claimant but rather a position she had come to between the dismissal hearing and the appeal

[125]The respondent was accordingly, at that stage, left in the position of having an employee who was clearly and unambiguously stating that she was either unable or unwilling to return to work - not for a limited period but at all - notwithstanding being offered the basis of return that she had been seeking

[126]In such circumstances, the respondent, acting reasonably, was entitled to take the decision that it did, namely to terminate the claimant's employment. Under those circumstances, this effectively overrides the position at the original dismissal hearing and, when viewed in the totality of the process, renders the decision to dismiss fair Discrimination arising from disability

[127]The Tribunal must analyse all of the statutory elements upon which this claim is based

[128]The primary unfavourable treatment relied upon is the claimant's dismissal. The respondent's position and the Tribunal's findings in this regard are set out above in the context of the victimisation claim (albeit more specifically on the question of "detriment"). The Tribunal is satisfied that the claimant's dismissal amounts to unfavourable treatment. The Tribunal is further satisfied that the same analysis applies as regards the respondent's decision to start the absence management procedure in August 2019 which is the commencement of a continuing act through to the decision to dismiss

[129]What is the "something arising"? This by agreement is the claimant's long-term sickness absence

[130]It is found that at the relevant time the claimant was a disabled person, as defined. Did the sickness absence arise as a consequence of the claimant's disability? The respondent says no, it arose as a consequence of the respondent's attempt to change the claimant's shifts. The Tribunal rejects this argument. The reason for the claimant's absence was her ill health, found to be by reason of disability. It is correct to say that it was the attempt to change the claimant's shifts which caused or contributed to (as emphasised by the respondent's own position with regard to CSP) the claimant's sickness but the reason for her absence was her mental impairment, as confirmed by her various sick notes

[131]The final element is whether or not the unfavourable treatment was "because of" the claimant's long term sickness absence. The Tribunal is clear that the unfavourable treatment relied upon (namely, commencing the absence management procedure and ultimately dismissing by reason of capability) arose, effectively by definition, precisely as a consequence of the claimant's sickness absence

[132]In the above circumstances, the Tribunal's conclusion is that this claim is to that point upheld. The respondent however seeks to rely upon the defence that the treatment was a proportionate means of achieving a legitimate aim

[133]The legitimate aim relied upon is to provide an excellent service to its customers and meet operational demands. There is no dispute that this is a legitimate aim of an organisation such as the respondent. Was the commencement of the absence management procedure culminating in the dismissal of the claimant a proportionate means of achieving that aim?

[134]The Tribunal accepts that the respondent acted proportionately in commencing its procedure in the context of long-term sickness absence. It is entitled to manage long-term sickness absence of its employees. However, for the reasons set out in the Tribunal's analysis regarding the claim of unfair dismissal and the reasonableness of the respondent's decision (at the point of the original decision to dismiss) at paragraph 120 above, the Tribunal finds that the dismissal of the claimant was not a proportionate means of achieving that legitimate aim

[135]The Tribunal is mindful of the guidance in the case of O'Brien v Bolton St Catherine's Academy

[2017] EWCA Civ 145

which states that effectively there is no real distinction between the reasonable test for unfair dismissal and the proportionality test. Whilst at face value, the Tribunal has come to a different overall conclusion, in fact the two decisions are entirely consistent. The Tribunal's analysis in regard to the claim of discrimination arising from disability must stop at the time of the initial decision to dismiss without taking account of the subsequent decision on appeal

[136]This claim is accordingly upheld

[137]The matter will now go to a Remedy Hearing and a Preliminary Hearing to discuss with the parties what steps may be appropriate to ensure the Remedy Hearing can proceed in good order will be listed as soon as possible

[138]In terms of remedy, the Tribunal would add the following. The parties were given the opportunity to make submissions on the Polkey principle. Given the Tribunal's decision on the unfair dismissal claim, there is no question of the potential applicability of Polkey

[139]The Tribunal will however need to give consideration to the potential impact of the appeal process on any award of compensation. Although this may produce similar arguments to those pursued under the Polkey principle, they are not necessarily identical and the Tribunal accordingly considers it appropriate that this remain an issue to be considered, and opportunity be given for submissions to be made on behalf of both parties, at the Remedy Hearing to be arranged