Mrs C Spinks v Commissioners for HM Revenue and Customs: 2408537/2020 and others

EMPLOYMENT TRIBUNALS

Case No 2408537/2020, 2420672/2020, 2408551/2021

Between

Mrs C SpinksClaimant

Commissioners for His Majesty’s Revenue and CustomsRespondent

Before

Employment Judge Horne

Members

Ms M Plimley

Mr J Murdie

In person for claimant

Mr N Flanagan (instructed by counsel) for respondent

Date 17 January 2024

JUDGMENT

[1]The respondent did not discriminate against the claimant because of disability.

[2]The respondent did not discriminate against the claimant because of anything arising in consequence of her disability.

[3]The respondent did not discriminate against the claimant by failing to make adjustments.

[4]The tribunal has no jurisdiction to consider the complaint that the respondent harassed the claimant by discussing her subject access request (SAR) dated 14 February 2020. This is because the complaint was presented after the expiry of the statutory time limit and was not presented within such other period as the tribunal considers just and equitable.

[5]The respondent did not otherwise harass the claimant in relation to disability.

[6]The respondent did not victimise the claimant.

[7]The respondent did not subject the claimant to a detriment contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.

[8]The claim is therefore dismissed. 1 of 2 Case Number: 2408537/2020 2420672/2020 2408551/2021 JUDGMENT having been sent to the parties on 20 January 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]The claimant is a Civil Servant. She has disabilities which are aggravated by stress. She is also a trade union representative. With the help of a package of adjustments, there have been times when she has been able to do her work to a very high standard, to a level of difficulty appropriate to her grade, whilst helping her union members. There have also been times when she has struggled, particularly with her workload, but also in her trade union role. At such times, she often formed the belief that she was not being supported and that managers were harassing and victimising her. There is no doubt that the claimant believed that this was the case. But that is not enough for her many claims to succeed. Our task is to find the facts for ourselves and apply to the law to them.

[2]Part of this claim is about comments made by managers that the claimant found upsetting. At times, the experience of reading or hearing critical comments has had a negative effect on her health. Unfortunately, we have found it necessary to make some observations in our reasons that echo some of the sentiments of some of those badly-received comments. The claimant is likely to find some of what we say difficult to accept. But we have had to write it, otherwise we could not adequately explain why we reached some of the decisions we did. We have avoided making any gratuitous remarks.

Issues

[3]By three claim forms presented respectively to the tribunal on 24 June 2020, 23 December 2020 and 22 July 2021, the claimant raised the following complaints: 3.1. Failure to make adjustments, as defined by sections 20 and 21 of the Equality Act 2010 (“EqA”) and in contravention of section 39(2) of EqA; 3.2. Direct discrimination because of disability, as defined in section 13 of EqA and in contravention of section 39(2) of EqA; 3.3. Discrimination arising from disability, as defined in section 15 of EqA and in contravention of section 39(2) of EqA; 3.4. Harassment related to disability, within the meaning of section 26 of EqA and in contravention of section 40 of EqA; 3.5. Victimisation, as defined in section 27 of EqA and contrary to section 39(4) of EqA; and 3.6. Subjecting a worker to a detriment for the purpose of deterring her from making use of trade union services at an appropriate time, contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.

[4]The issues were clarified during a succession of preliminary hearings. By the start of the final hearing, the parties had produced a list of issues which they confirmed had been agreed. During the course of the hearing, it became clear that the issues were capable of further clarification. The issues also narrowed to reflect concessions that the parties had made. Following the parties’ closing arguments, our employment judge substantially re-drafted the list of issues to reflect these concessions. The recast list of issues was circulated to the parties, who were given time to respond. Subject to some minor typographical corrections, the parties separately confirmed that the recast list accurately set out all the remaining issues in dispute. The recast list of issues appears as an Annex to these reasons.

Evidence

[5]The parties produced two agreed bundles. The main bundle consisted of 1,885 pages. Alongside the main bundle was a 1,648-page Policies Bundle.

[6]Part-way through the hearing, the respondent e-mailed a file note of a telephone call, which we read.

[7]To keep the documents manageable, our employment judge warned the parties at the start of the hearing: 7.1. That we would not read every page of the bundles; 7.2. That we would be very unlikely to read any page that had not been specifically referred to in a witness statement or orally during the hearing; 7.3. That we would not read any document relating to anything that happened before 2018 unless a party orally asked us to read it and explained why it was relevant; and 7.4. That we would not read any of the Policies Bundle unless the specific page was drawn to our attention orally during the hearing.

[8]The claimant gave oral evidence and called Miss Griffith as a witness. For the respondent, oral evidence was given by Miss Underwood, Ms Johnson, Mrs Sherlock, Miss Mallett, Mr Brady, Miss Tumilty and Mrs Hirst. All nine witnesses confirmed the truth of their written statements and answered questions. Adjustments during the hearing

[9]The ground rules for the hearing had already been agreed at a preliminary hearing before our employment judge on 17 January 2022. As an adjustment, the hearing took place on a video platform, with additional scheduled break times. We structured the hearing so that the parties would not be required to do anything before 10.00am. The claimant did not ask for any other

[10]At the start of the hearing, we checked whether the ground rules needed updating. It was agreed that none of the participants would raise their voice. Everyone at the hearing observed this rule well, even at moments of tension. The claimant was free to get up and move around as she needed.

[11]The claimant also asked to take notes whilst giving evidence. This was because her companion, Miss Griffith, had difficulty writing. That adjustment was agreed. We let the claimant decide how much or how little to take in the way of notes, but encouraged her to prioritise writing down brief points to jog her memory, rather than to take a word-for-word note of what was said. As it turned out, the claimant’s note-taking did not cause any significant disruption to the hearing. Facts

Background

[12]On 24 September 1989 the claimant began employment with what was then called Her Majesty’s Customs and Excise. By the start of her employment, the claimant was already disabled with irritable bowel syndrome (IBS). She has had that disability at all relevant times throughout her employment.

[13]In February 2000, the claimant was diagnosed with depression. She has been disabled with depression all relevant times since then.

[14]In September 2011, the claimant was diagnosed with Gastroesphageal Reflux Disease (GERD). This impairment also amounted to a disability which has lasted throughout the events giving rise to this claim.

[15]In 2011, the claimant successfully applied for a Higher Officer role. As at the date of our hearing, the claimant was still employed at that grade.

[16]At all relevant times, the claimant has been a member and workplace representative of the Public and Commercial Services Union (PCS).

[17]By 2014, the claimant was working in the Individuals and Small Business Compliance Directorate (ISBC), under the leadership of Grade 6 Assistant Director, Paul Brady.

[18]Within ISBC were multiple Business Units, each with a Grade 7 Head of Unit. In each Business Unit were teams staffed by Administrative Officers, Officers and Higher Officers. Staff in each team were line managed by a Team Leader at Senior Officer grade. Policies Data protection

[19]The respondent’s information governance structures included agreements on access to personal data. If a Civil Servant made a statutory data subject access request (“SAR”), the response would be administered by the respondent’s dedicated SAR Team.

[20]Each Civil Servant had a personal file that was held confidentially by their line manager.

[21]Managers were required to make fair and accurate records of formal discussions and to keep a copy on the Civil Servant’s personal file. Guidance stated that it was good practice for informal discussions also to be noted, but this was not considered essential.

[22]It was not uncommon for Civil Servants to request access to their personal file. Needless to say, their personal file was likely to contain personal information about them to which they had a right of access by making a SAR. To avoid unnecessary formality and save expense, a collective agreement provided that personal file requests could be made directly to a line manager and ought ordinarily to be granted. Health and safety

[23]The respondent’s health and safety policies made provision for a formal accident reporting procedure. The accident report form was known as HRACC1. The completion of HRACC1 would trigger a health and safety investigation independently of any related grievance. It was understood by employees and managers alike that the HRACC1 procedure was available to anyone who believed that their health had been harmed by their work. This included illness caused by workplace stress. The mere fact of a person becoming ill whilst at work would not be sufficient reason to complete a HRACC1 form. Bullying and harassment

[24]The respondent had a written policy, headed, “How to Recognise and deal with bullying, harassment and discrimination.” The policy contained guidance for managers, including: “Those who act in a firm and fair manner should not expect to be accused of bullying or harassment. Nobody likes to be told that their work is not at the required standard and feedback may be unwelcome or cause the recipient distress. It would only amount to bullying if the criticism is incorrect, unfair or overly harsh, or communicated in an inappropriate way.” People with disabilities at HMRC Demographic

[25]The respondent’s ISBC Directorate employs a disproportionately high number of people with disabilities when compared to employers generally.

[26]Within the Business Unit where the claimant worked, 36% of the leadership team had a disability. WAP

[27]The respondent had an established procedure for making adjustments for disabled Civil Servants. Agreed adjustments were recorded in a document known as a Workplace Adjustment Passport (“WAP”). Here is a brief overview of how the WAP process worked: 27.1. All parties would use a template WAP form drafted by Civil Service Human Resources. The template was updated in October 2019. 27.2. Both before and after the update, the process of agreeing a WAP included a discussion between the employee and their line manager, usually at a meeting. Between them, they would seek to reach agreement on reasonable adjustments. Those adjustments were then recorded on the WAP form together with their date of implementation. 27.3. From October 2019, the process began with the disabled Civil Servant’s self-assessment. They would complete a box on the template headed, Details of the barriers you currently experience”. The next box on the form, also for completion by the employee, had the heading, “Details of how this affects you at work and the support you need”. 27.4. It was possible for managers to obtain an occupational health report before agreeing to make adjustments on a WAP, but this step was not considered necessary in every case. 27.5. The form provided for a review every 12 months. 27.6. The WAP was intended to provide continuity of adjustments. The adjustments recorded on the WAP would follow the disabled Civil Servant if they moved to a different team or Business Unit. They would remain in place if a new line manager moved into the team. Workplace Adjustment Policy

[28]The respondent had a written Workplace Adjustment Policy, which further regulated the procedure for requesting and obtaining adjustments. Relevantly, the policy provided: “Managers do have the right to refuse a request. However, if a request for a workplace adjustment is refused, they must record the reasons why and justify their decision. They must write to you to explain their decision.”

[29]Under the heading, “Priority Movers”, the policy stated: “Our first consideration is always to retain the employee in their current role, therefore workplace adjustments must be considered to achieve this. Only in exceptional circumstances where, all workplace adjustments and options have been explored within the current Directorate and there are no workplace adjustments which would enable the individual to continue in their existing role or in another role within their Directorate, an application for priority mover status can be made.” Disagreements prior to Miss Underwood becoming manager

[30]In 2014, the claimant was working in a Value Added Tax Business Unit, headed by Richard Bullivant. She acquired a new line new manager called Cathy Farrell. They had a performance review meeting together in October 2014. The claimant was disappointed with her performance assessment and upset at the way in which the meeting had been conducted. Her health deteriorated and she was absent from work for about 7 weeks.

[31]When she returned, her line manager was Hugh Pinnington. From 3 March 2015, she entered into written correspondence with Mr Pinnington on the subject of adjustments to her performance targets. Broadly speaking, her concern was that the lack of clarity about target reduction was putting her at a disadvantage in the performance assessment process. She aimed for an “exceeds” rating and was not satisfied with the lower rating of “achieved”. She believed that, without clear adjustments to performance targets, she would be deprived of a fair chance of an “exceeds” rating.

[32]In July 2016 she raised a grievance against Mr Pinnington in relation to this issue. One of the claimant’s witnesses during the grievance process was Miss Catherine (Cathy) Mallett. The significance of this is that Miss Mallett gained some knowledge of the accusations that the claimant made, rightly or wrongly, against Mr Pinnington and Mr Bullivant. She later deployed this knowledge in an e-mail which is the subject of this claim (Harassment 1).

[33]It took until February 2017 for the grievance to reach an outcome. Broadly speaking, the investigator concluded that there had been a delay in implementing reasonable adjustments, but the remainder of the grievance was not upheld.

[34]In the meantime, in December 2016, the claimant reluctantly accepted a managed move within ISBC. She had asked to leave the Directorate altogether, but was offered a new Business Unit instead. Her existing Business Unit operated within Value Added Tax (VAT). Her new Business Unit sat within Income Tax Self-Assessment. Miss Mallett was the Grade 7 Business Unit Head. The claimant’s new line manager was Vicky Rawlinson.

[35]In order to move from VAT to income tax, the claimant had to familiarise herself with a different tax regime. She received a substantial amount of training to help her adapt to her new role.

[36]Just prior to the move, she had been absent on sick leave for approximately a month. In January 2017, the claimant submitted the accident report form HRACC1. The reported danger was her perceived lack of support in relation to time off for union activities, reasonable adjustments and trigger points for sickness absence.

[37]In May 2017, the claimant raised a further HRACC1 form. The substance of her concern was that Ms Rawlinson had inappropriately started a formal absence management procedure following a single day’s sickness absence. The procedure culminated in a written attendance improvement warning. As an adjustment, she was allowed a 50% increase in tolerated absences before a trigger point was reached, but guidance allowed trigger points to be increased by up to 100% in appropriate cases. She started attending work when she believed she was not well enough, out of fear of triggering further absence management procedures.

[38]On 10 July 2017, Ms Rawlinson placed the claimant on a performance improvement plan (PIP). The claimant believed that the PIP was unfair and discriminatory.

[39]In October 2017, the claimant did a “floor walk” in her capacity as PCS union representative, talking to members of staff about a controversial People Survey. Following the floor walk, Miss Mallett asked the claimant to attend a meeting. It was the claimant’s evidence to us that Miss Mallett behaved aggressively towards her at this meeting, causing the claimant to feel frightened and intimidated.

[40]We did not find it necessary to make a finding as to whether Miss Mallett had behaved towards her in this way or not. The only part of the claim that is directly concerned with the PCS union was Trade Union Detriment. As can be seen in the list of issues, the claimant’s allegation relates to events in December 2020. According to the claimant’s case, the only people who acted with anti-union motivation were Mrs Sherlock and Miss Underwood. These two managers’ objective (as alleged in the list of issues) was to deter the claimant from bringing a companion to a grievance meeting. The claim has nothing to do with the way the claimant carried out her own union activities.

[41]At some point in 2017, the claimant left Ms Rawlinson’s team and joined a team led by Natasha Worth. A performance moderation review took place in November 2017 between Ms Worth and the claimant. From the claimant’s point of view, it appeared that Ms Worth was “extremely negative” about her performance. Shortly afterwards, on 6 November 2017, the claimant submitted a further HRACC1 form. In a nutshell, the form stated that her mental health had been harmed by negative performance comments, the humiliation of the continued PIP and “malicious and vexatious claims” about the way she carried out her union activities.

[42]The claimant asked for a change of line manager. According to an occupational health report in April 2018, the claimant’s reason for her request was her “feeling of mistrust”. Miss Mallett disbanded Ms Worth’s team. On 23 April 2018, the claimant was given a new line manager, Miss Lynsey Underwood. The AAS Business Unit

[43]By the time of this move, if not before, the claimant, Miss Mallett and Miss Underwood all worked within a Business Unit called “Attacks Against the System” or “AAS”. Essentially, the purpose of AAS was to detect and investigate suspected fraudulent income tax claims.

[44]The AAS Business Unit consisted of a number of teams working together in the same open-plan office. Each team would have regular team meetings. More occasionally, multiple teams would combine for a joint meeting.

[45]Teams within AAS operated a system of “buddy” managers. This enabled Team Leaders to support each other. A Team Leader could also stand in to cover for their buddy’s temporary absence. Team Leaders and their buddies shared information about members of their team. Miss Underwood’s buddy manager was Mrs Julie Sherlock.

[46]Mrs Sherlock and Miss Mallett both had disabilities. We do not know what they were.

[47]Each team member within AAS took on a profile of work. There was a substantial overlap in the work profiles of team members of different grades. This meant that much of the claimant’s role involved doing the same work as the Officer-grade and Administrative-Officer-grade members of the team. One distinguishing feature of the claimant’s work profile as Higher Officer was to investigate “section 9A cases”. These were formal investigations into suspected fraud. Events whilst Miss Underwood was line manager

[48]The working relationship between the claimant and Miss Underwood started relatively well. Owing to the way in which the issues have evolved in this case, it is not necessary to set out much of the detail of their early working relationship.

[49]The claimant and Miss Underwood had regular 1:1 meetings. The claimant appeared to Miss Underwood to be comfortable in those meetings without any companion.

[50]It was agreed that the claimant would not be required to work on section 9A cases because of their effects on the claimant’s health. Later in 2018, Miss Underwood sought to re-introduce section 9A cases on a phased basis. These discussions continued throughout 2019.

[51]On 15 November 2018, the claimant had high blood pressure, chest pain and shortness of breath. She went to Accident & Emergency. Following tests, she was informed that she had “borderline” left ventricle hypertrophy. She was given two types of medication to reduce her blood pressure. She was advised that, without medication, she was at increased risk of a cerebrovascular attack (stroke).

[52]In January 2019, the claimant and Miss Underwood reviewed and updated the claimant’s WAP.

[53]The claimant was absent from work for several weeks following orthopaedic surgery on 21 May 2019. It is common ground that her absence was appropriately managed, with adjustments being made to the respondent’s attendance policy.

[54]Just before her operation, the claimant informed Miss Underwood that she had had to “contact the cardiologist today”, and that she could not remember the last time she had had a normal blood pressure reading. She did not, however, mention any secondary symptoms, or effects of her blood pressure on her ability to do anything.

[55]Following a 1:1 meeting with Miss Underwood on 18 November 2019, the claimant asked for a further meeting at which she wished to be accompanied by her trade union representative, Miss Georgina Griffith. Miss Underwood agreed. The reconvened meeting took place on 26 November 2019. They discussed reductions to the claimant’s targets. Miss Underwood was initially reluctant to agree to certain targets being relaxed, because she did not anticipate that Miss Mallett would agree. On the claimant’s behalf, Miss Griffith objected to Miss Mallett having any involvement in the process. It was agreed that there would be a further occupational health referral and that the claimant would try to increase her section 9A caseload gradually.

[56]On 18 December 2019, an occupational health report stated that the claimant was experiencing “persistent low mood (particularly on a morning), sleep disruption and associated fatigue, difficulties with motivation, social engagement, concentration, speed of thought, memory and frequent, intrusive thoughts, feelings of fear and anticipatory worrying.” The report recommended a number of possible adjustments. These included, 56.1. Relaxing performance targets 56.2. Less time on “high intensity work” 56.3. Disability-adjusted leave within increased trigger points for sickness absence.

[57]The report did not mention any effect of the claimant’s heart condition on her present ability to carry out day-to-day activities. It did not state what the effect of her heart condition on her day-to-day activities might be if the claimant did not take her medication. There was no mention of any disadvantage connected with agendas for meetings or records of meetings. The report did not alert the reader to any need for continuity of line manager. Pressures on the claimant and Miss Underwood

[58]By December 2019, both the clamant and Miss Underwood were having to cope with pressures outside of work. The claimant’s stepfather had a serious illness requiring treatment; the claimant tried to provide as much support as she could to him and to her mother. Miss Underwood discovered that members of her close family were unwell. She confided in Miss Mallett that she was struggling.

[59]In November and December 2019, the claimant took on challenging cases on behalf of her members. She also informed Miss Underwood that she was standing for election for an officer role in PCS. The election was causing divisions amongst PCS members and representatives. At the same time, Miss Underwood noticed that the claimant was becoming more emotional and demanding. On two occasions, the claimant interrupted Miss Underwood during a private 1:1 meeting with another member of her team. In January 2020, Miss Underwood had a private meeting with the claimant at the claimant’s request. During the meeting, the claimant informed Miss Underwood that she had been unsuccessful in her election and PCS colleagues had posted upsetting messages about her. Updated WAP

[60]On 15 January 2020, Miss Underwood met with the claimant and Miss Griffith to agree an updated WAP. Miss Underwood thought this to be important, following the claimant’s occupational health report and the changes to the WAP procedure that had come into effect the previous October. The claimant was very upset at the meeting.

[61]Following some e-mail reminders from Ms Underwood, the claimant provided her completed self-assessment sections her WAP form. They were attached to an e-mail on 14 February 2024. The self-assessment included: “ Details of the barriers you currently experience:• Difficulty sleeping and/or oversleeping

• Fatigue

• Tiredness

• Difficulties with motivation

• Emotional upset

• Planning/organisation issues

• Social/communication engagement

• Low mood, anxiety and feelings of being overwhelmed

• Intrusive thoughts

• Difficulties concentrating/brain fog

• Short term memory issues

• Speed of thought

• Gastro-oesophageal reflux

• Toilet urgency

• Pain in arm/shoulder Details of how this affects you at work and the support you need:

• Sleeping problems can be supported by allowing a later attendance start time, which will allow me when needed, to not get worked up thinking of the consequences of being late and mitigate tiredness, fatigue, pressure of stress and increase of anxiety symptoms which in turn can lead to increase in acid reflux and/or need for toilet

• Short notice leave requests allowing me to text in instead of phoning, allows me get back to sleep immediately, if I have had a bad night,and have low mood helping to reduce tiredness, fatigue, a build up of anxiety, stress that is created if having to wait to speak to relevant management before I can do this, which if people are in meetings/out of office/away from desk can take time or due to struggles with socially engaging.

• Low mood, anxiety symptoms, emotional upset, difficulties concentrating/brain fog make me reluctant to socially engage and communicate effectively with others, this leads me to overthinking and feeling overwhelmed and affects my decision making process. A private space/room to work in can help alleviate some of this and help me to refocus on my work. It also allows me some dignity if I become emotionally upset. Use of headphones whilst at workstation may help me to refocus on work. A reduction in work targets due to the additional time it takes me to make a decision due to intrusive thoughts, brain fog/lack of concentration and memory issues, which make more reliant on training aides/guidance etc and because of a need to have additional breaks and/or additional time off to atend related health appointments reduces barriers to me being able to meet goals and targets.

• Additional time allowance to be able to plan/organise my work out each week, will help me to focus on what I need to do.

• Additional time for learning and aide memoirs due to this it taking longer to complete because of intrusive thoughts, concentration levels/brain fog and to support short term memory issues.

• A mentor/buddy who I can email for support when struggling to help me make a decision or when lacking confidence/memory

• Union rep to attend meetings if necessary to provide emotional support and help with short term memory issue

• More frequent breaks will allow me to time to relax if I feel overwhelmed or I’m struggling with making a decision. They will also allow me to make sure I keep hydrated and allow me to do relevant arm exercises or meet any frequent toilet needs

• Increase sick absence tolerance due to reduced immunity function

• Allowance of 4 flexi days instead of 3 and DAL will support me in manging my condition in attending various health appointments and events to maintain optimal health

• Following up verbal instructions in writing supports short term memory issues

[62]Nowhere in her self-assessment did the claimant state: 62.1. That she would be at a disadvantage without a Dictaphone or other digital device for recording voice notes between meetings; 62.2. That she would be disadvantaged by the respondent’s rule against audio-recording meetings; 62.3. That she would be disadvantaged during 1:1 meetings if she did not have a companion at every meeting; or 62.4. That she needed continuity of line management or would be disadvantaged by moving teams.

[63]Miss Underwood agreed that 13 adjustments should be put in place, or kept in place. These were recorded on the WAP on 14 February 2024. They included: 63.1. The claimant would open one section 9A case per month, to reach a portfolio of 6 section 9A cases. This will still significantly less than the claimant’s Higher Officer colleagues working within AAS. 63.2. The claimant’s expected overall AAS caseload continued at a reduced level. 63.3. The claimant was permitted to start work as late as 11am without contacting a manager. If the claimant had not arrived by 11am, a manager would call or text her. 63.4. “Manager to follow verbal instruction in writing when required”. 63.5. “Ability to be accompanied by a rep at meetings”. Claimant’s SAR concerning PCS

[64]At 10.18am on 14 February 2020, the claimant e-mailed a SAR to the respondent’s dedicated SAR Team. Her request related to 14 representatives of the PCS union. She asked for “any information regarding votes made for or against myself in any e-mail requests sent recently”. She also requested to see “all e-mail conversations between [those 14 representatives] and any handwritten notes to be submitted. She added that she wanted “any written correspondence, e-mails, written notes in books, electronical held notes, skype conversations, any logic involved in any decisions made about me as well as decision trees/opinion/thoughts & written notes, WhatsApp messages between named individuals and any other parties”.

[65]She asked for the SAR for each PCS representative to be sent individually, but for all the requests to be sent simultaneously. Her e-mail indicated that she believed that her manager (Miss Underwood) would make these arrangements.

[66]Her e-mail warned that she would “contact the GDPR inspectors” if the response to her SAR omitted the information that she requested in respect of any of the 14 PCS representatives.

[67]This was doubtless an upsetting time for the claimant. There is no denying her strength of feeling about the way she had been treated by PCS members and representatives. Otherwise, she would not have been driven to the surprising step of drawing her employer into an internal union dispute. But what is of greater relevance to the issues in this claim is the effect that the SAR had on Miss Underwood.

[68]Miss Underwood found out about the SAR on 26 February 2024 when the claimant alerted her to it. Dealing with the SAR put Miss Underwood to considerable additional work. She had to liaise with Human Resources, to send 14 individual e-mails with guidance, to diarise and monitor the responses and collate the information. Miss Underwood provided her SAR response to the claimant on 13 March 2020.

[69]The claimant replied on 17 March 2020. She asked for the e-mails that the individual PCS representatives had sent to Miss Underwood when replying to the SAR. This generated further work. A layer of complexity was added by the fact that one of the PCS representatives had replied to Miss Underwood, alleging that the claimant had bullied them. Miss Underwood received inconsistent advice from the SAR Team. Following a query raised by the claimant, Miss Underwood was eventually advised that she could provide a redacted summary of the e-mail responses, including the bullying allegation.

[70]Miss Underwood sought Miss Mallett’s support during the time she was working on the SAR response. They talked, amongst other things, about the time it would take. This conversation is said to have been Harassment 2. There was no evidence of when the conversation took place. There is no evidence that there was any discussion about the claimant’s disabilities or anything related to those disabilities. Doing the best we can, we find that the discussion probably took place before Miss Underwood provided her initial response on 13 March Additional line management activities

[71]Over the period January to March 2020, Miss Underwood’s time was also taken up with further line management activity in relation to the claimant. For example: 71.1. Between 20 January and 13 February 2020, she had to remind the claimant to complete her WAP self-assessment. 71.2. She sent three e-mails highlighting to the claimant the importance of complying with the respondent’s clean desk policy. The claimant worked in a shared office space where team members were expected to “hot-desk”. The claimant was resistant to this instruction. From the claimant’s point of view, it was not necessary to clear her desk. This was because she had been provided with a variable-height desk as an adjustment, and the settings were bespoke to her. She did not think that it would be safe for any colleague to use the desk with those fixed settings without a full Display Screen Equipment assessment. There being nobody else who could safely use the desk, no-one would be inconvenienced by the claimant leaving her personal items there from one day to the next. That is what the claimant thought. Miss Underwood did not see it that way. Nor, as it happens, do we. There was no reason why the claimant could not keep her desk tidy. Making an exception for the claimant was likely to affect the morale of the rest of the team. 71.3. Miss Underwood sent 5 e-mails about the importance of correctly and punctually recording work, so it could be submitted to Performance and Planning.

[72]By early March 2020, Miss Underwood was spending more of her working time dealing with line-management issues for the claimant than she spent on managing the rest of the claimant’s team put together. Covid

[73]As is well known, by March 2020, the coronavirus pandemic had taken hold in parts of Europe. There was an increasing expectation that England would have to take unprecedented public health measures to slow the spread of infection.

[74]Preparation for these measures was discussed at a team meeting on 4 March 2020. During the meeting, Miss Underwood said something to encourage team members to take their laptop computers home at the end of each day, so that they would be ready to work from home in the event of a sudden lockdown. There is a dispute about precisely what she said, but it does not matter. After the meeting, she e-mailed a summary of the main points out to the team. One bullet point suggested that taking laptops home would be compulsory. Some team members who were present at the meeting were worried about the security implications. When the claimant became aware of these concerns, she canvassed opinion from members more widely by doing a “floor walk”. She was heard to make a comment contrasting managers’ current preparations for emergency home working (on the one hand) with their previous refusal of a request to work from home. She raised the issue directly with Miss Mallett. She did not perceive any problem with bypassing Miss Underwood. It was the claimant’s understanding of the Employee Relations Agreement that, as a PCS representative, she should take up collective concerns with the Grade 7 Business Unit Head. Miss Mallett cascaded the discussion back down to Miss Underwood. Rightly or wrongly, Miss Underwood was disappointed that concerns had been raised about her behind her back. She agreed to amend the e-mail and did so on 5 March 2020.

[75]On 12 March 2020, Miss Underwood requested that each team member provide a nominated colleague with access to their work e-mail folders. The purpose of this arrangement was to try to maintain continuity if a colleague was unable to access their e-mails as a result of the pandemic. The claimant disagreed. She used her work e-mail address for PCS business. Her worry was that her colleague would have access to confidential communications between her and union members. It was possible to adjust e-mail settings to divert PCS emails into a separate folder, but there was no express assurance that the colleague would not have access to that folder. The claimant’s views were consistent with PCS policy on the storage of information on employer systems. Seven e-mails passed between the claimant and Miss Underwood on that topic during that morning. It was not a constructive conversation. Miss Underwood used the phrase, “reasonable instruction”, leading the claimant to perceive a veiled threat of disciplinary action for non-compliance. For her part, Miss Underwood found the claimant’s tone to be aggressive and demanding. It was certainly defiant. For example, one of the claimant’s e-mails stated, “I will not be doing this today as I have work to be getting on with”. If that were not bad enough, from Miss Underwood’s point of view, the e-mail exchange took place in an open-plan office where the claimant and Miss Underwood were sitting diagonally opposite each other. Each time the claimant sent Miss Underwood an e-mail, she announced that she was doing so, in a voice that was loud enough for other people to hear. Miss Underwood felt “diminished” and “vulnerable” as a result. Later, Miss Underwood checked with Employee Relations and was informed that colleagues could not be compelled to share e-mail access. The claimant moves to Mrs Sherlock’s team

[76]At about this time, Miss Underwood confided to Miss Mallett that she was struggling to manage the claimant. Together they agreed that the claimant should have a new line manager. Miss Mallett decided to implement the change by moving the claimant to Mrs Sherlock’s team.

[77]This was not the only option. An alternative might have been to disband Miss Underwood’s team and reallocate team members to other teams within the Business Unit. But Miss Underwood’s preference was to retain her existing team, as she felt capable of managing a team if the particular challenge of managing the claimant were removed.

[78]Miss Mallett agreed. This was because: 78.1. The respondent was approaching the end of the tax year, which was the time when team reshuffling would usually take place. 78.2. Mrs Sherlock’s team was the obvious choice, in Miss Mallett’s opinion. Miss Underwood and Mrs Sherlock were “buddy” managers; both their teams did the same kind of work; and the claimant would already know members of the team from joint meetings. 78.3. Miss Mallett knew that the claimant had multiple disabilities and adjustments, but did not think that the adjustments would be significantly disrupted. The claimant’s WAP would follow her to Mrs Sherlock’s team. There was no reason why the adjustments in the WAP could not carry across from one team to the other, because the two teams did the same work and operated in the same way. Moreover, Mrs Sherlock was experienced at managing people with disabilities.

[79]Miss Mallett did not consult the claimant before coming to this decision.

[80]On 18 March 2020, Miss Underwood telephoned the claimant, who was working from home. Two days earlier, the Prime Minister had announced that people should “start working from home where they possibly can”. The claimant and Miss Underwood spoke about e-mail access. They also discussed the current arrangements for compulsory working from home and previous refused requests for home working. They exchanged differing opinions about the appropriateness of the claimant’s comparison of one with the other. By this point in the conversation, the claimant was already crying. Miss Underwood asked after her welfare. After a short discussion about that, Miss Underwood then broke the news that the claimant would be moving to Mrs Sherlock’s team. She explained to the claimant that she could not give the claimant the level of support that she needed and that the move was for her own (Miss Underwood’s) wellbeing. The claimant became more upset. Shortly after the call ended, she telephoned Miss Griffith in a distraught state. Two days later, she went to Accident & Emergency with a flare-up of IBS.

[81]In the meantime, Miss Griffith e-mailed Miss Underwood on 19 March 2020, asking her for “the reasons for the team move”. Having discussed the matter with Miss Mallett, Miss Underwood replied by e-mail on 24 March 2020. The e-mail stated: “[The claimant] has needed and will continue to need a lot of support and at the moment I am unable to give her that support due to my own wellbeing.”

[82]The fact that Miss Underwood gave this reason is one of the things that made the move particularly distressing for the claimant. In the claimant’s opinion, it was gratuitous and unnecessary for Miss Underwood to tell the claimant that she had to stop managing her for her own wellbeing. Whilst we recognise that this was genuinely the claimant’s opinion, it is one that we do not share. This was always going to be a difficult conversation for both Miss Underwood and the claimant. Miss Underwood could not have been expected to lie. The claimant would not have been satisfied if no reason had been given at all. That left Miss Underwood having to give the truthful reason, which there was no palatable way of communicating.

[83]Another cause of upset was that the move itself was unsettling for the claimant. It came at the beginning of the lockdown. This was a time of rapid change and considerable uncertainty. Social contact was much reduced, together with the opportunity to get to know new people. She did not know her colleagues in Mrs Sherlock’s team as well as those in her existing team. More importantly, she did not know her new manager as well as she knew Miss Underwood. As the claimant put it in a Skype message on 31 March 2020, “I need routine and consistency”. She feared that disruption would cause stress, and the stress would aggravate her IBS, GERDs and anxiety.

[84]We must also look at the move from Miss Mallett’s point of view. We are able to make a positive finding about the reason why Miss Mallett decided as she did. It was not at all because the claimant had physical or mental health disabilities. Her decision was entirely because Miss Underwood was struggling as the claimant’s line manager. We return to the causal connection between the claimant’s disabilities and Miss Underwood’s difficulties when we analyse the complaint of discrimination arising from disability.

[85]On 24 March 2020, the claimant authorised Miss Griffith to make a further SAR on her behalf. This was forwarded by Miss Griffith to the SAR team the following day. The SAR was for personal information “covering the period 1/11/2016 to date for the following members of staff and any other parties”. It proceeded to list Miss Underwood, Miss Mallett, Ms Worth and Ms Rawlinson.

[86]The same day, the claimant completed a further form HRACC1, giving her account of the 18 March 2020 conversation with Miss Underwood and its effect on her health.

[87]On 31 March 2020, Miss Underwood called the claimant and asked “whether she was OK”, to which the claimant replied that she was “fine”. Miss Underwood informed the claimant that she was about to hand over her personal file to Mrs Sherlock. The claimant did not ask for a companion to join the call, or for any written agenda for this call. She objected to Mrs Sherlock having access to her personal file. Initial relationship between the claimant and Mrs Sherlock

[88]The handover meeting took place between Miss Underwood and Mrs Sherlock on 1 April 2020. Mrs Sherlock already had some knowledge of the claimant’s adjustments in her capacity as Miss Underwood’s “buddy”, but now they discussed the claimant’s WAP in detail. Miss Underwood informed Mrs Sherlock, correctly, that she would be guided by the claimant about whether she needed a companion at meetings and (also correctly) the claimant had only requested a companion at meetings to discuss her WAP.

[89]The same day, Mrs Sherlock spoke to the claimant on the phone and welcomed her to the team. They discussed the claimant’s adjustments. For the next few weeks, the working relationship was positive.

[90]From time to time, Mrs Sherlock called the claimant directly and unannounced. These calls were the equivalent of what would have been a brief 1:1 chat had they been working in the office. At the start of each call, Mrs Sherlock explained to the claimant why she was ringing and checked whether the claimant was “OK to continue”. The claimant did not raise any concern. She did not ask for information in writing about the purpose of the call, or for the call to be rescheduled so that a companion could take part.

[91]Mrs Sherlock and the claimant began to agree to further adjustments without going through the formal WAP process. For example: 91.1. It was agreed that the claimant could start work after 11am without contacting a manager. (This arrangement gave the claimant more flexibility than her WAP.) 91.2. In April 2020, Mrs Sherlock granted the claimant 6 hours’ HealthRelated Special Leave so that the claimant could attend chair yoga sessions. 91.3. With Mrs Sherlock’s approval, the claimant missed a team meeting so that she could attend a virtual learning event for PCS and do some shopping for her mother. 91.4. In April and May 2020, Mrs Sherlock approved leave requests at short notice and on one occasion, retrospectively. 91.5. In May 2020, Mrs Sherlock took no action when the claimant fell asleep during her working time and did not respond to a query for four hours.

[92]On 9 June 2020, the claimant informed Mrs Sherlock that she wished to take on an additional project responsibility in learning and development. Mrs Sherlock responded encouragingly.

[93]The claimant and Mrs Sherlock spoke on 6 July 2020 to review the previous month’s performance. The claimant informed Mrs Sherlock that she was happy to continue the existing arrangement of calls. She said that she would let Mrs Sherlock know if she needed any additional support in any area. The claimant’s first claim to the tribunal

[94]On 20 June 2020 the claimant notified ACAS of a prospective claim to the employment tribunal. An early conciliation certificate was issued to her on 22 June 2020. On 24 June 2020 the claimant presented her first claim form to the tribunal.

[95]Mrs Sherlock found out about the claim on 23 July 2020 in an e-mail from Ms Atkin of Human Resources. Ms Atkin did not share the precise detail of what the claim was about. The news came as a surprise to Mrs Sherlock, because their working relationship had always been good. She was concerned that the claimant might feel isolated being in a dispute with her employer, with no face-toface support. She wanted to know if the claimant had raised a grievance in connection with the matters giving rise to her claim, in case there was anything to learn from the grievance outcome. Further supportive conversation and WAP

[96]The claimant and Mrs Sherlock had a 1:1 performance discussion on 10 August 2020. As previously, their conversation was positive and constructive. The claimant reported that her anxiety had considerably reduced over the previous few months. She was happy with the regular team meetings and knew that she could call Mrs Sherlock should she need to discuss anything. She confirmed that she would speak to Mrs Sherlock if she had any concerns in any area.

[97]The claimant and Mrs Sherlock used the same conversation to update the claimant’s WAP. The claimant’s self-assessment section remained the same. There was no suggestion that the claimant would be at a disadvantage at all meetings without an agenda or a buddy. She continued to ask for “verbal instructions” to be followed up in writing to support her short-term memory lapses. The relationship under strain

[98]At around this time, Mrs Sherlock happened to speak to a Human Resources Business Partner, Sam MacAlreevy, on a different matter. Whilst she had Mr MacAlreevey’s attention, she asked him for some advice about the news she had learned from Ms Atkin. She framed the question along these lines: as the claimant’s line manager, was it appropriate to ask the claimant about what sources of support she had available to her in connection with her claim? Mr MacAlreevy advised her that she could discuss this with the claimant. The conversation was not minuted. No records were kept.

[99]Mrs Sherlock had a further 1:1 performance discussion with the claimant on 21 September 2020. Once they had discussed the claimant’s work profile and productivity, Mrs Sherlock raised the subject of the claimant’s employment tribunal claim. She sought to reassure the claimant that she had settled well into the team and was highly regarded. She agreed with the claimant that it was her right to bring a claim, but explained that she wanted to ensure that the claimant was fully supported in the process whilst working from home. Having explained, from her point of view, why she had brought up the subject, Mrs Sherlock went on to ask the claimant some questions. Had the claimant followed an internal process? The claimant replied that she had not done so. Mrs Sherlock then asked whether the claimant had brought the claim on trade union advice. She did not ask what advice the claimant had received, but the claimant volunteered that she had had generic advice to present claims promptly to avoid missing the time limit. Mrs Sherlock offered the claimant her support should she need it. These questions are said to have amounted to Detriment 1.

[100]A note of the performance discussion was prepared by Mrs Sherlock on 25 September 2020 and sent to the claimant. It accurately recorded the conversation they had had about the claimant’s tribunal claim. The inclusion of this part of the conversation on the note is the subject of Detriment 4.

[101]The claimant felt uneasy at having been asked about her claim. Mrs Sherlock was in the same management chain as Miss Underwood and Miss Mallett. She approached Miss Griffith, who e-mailed Mrs Sherlock the same day. The essential message of the e-mail was to acknowledge that Mrs Sherlock had a “duty of care” towards her, but to request that the claimant be “given some privacy” and that to discuss the claim “could be considered a conflict of interest”.

[102]On 4 October 2020, the claimant e-mailed the SAR Team to make a further SAR. This time the request was for her personal information held in a number of digital sources over a 6-month period relating to Miss Mallett, Miss Sherlock and Miss Underwood. She received a response from Mrs Sherlock on 6 November 2020. The material provided to the claimant did not include any recorded information about any advice given by Human Resources to Mrs Sherlock about discussing her tribunal claim.

[103]Based on what we now know, this omission from the claimant’s SAR response was entirely unsurprising: there had never been a written record of Mrs Sherlock’s conversation with Mr MacAlreevy. At the time of receiving the SAR response, however, the claimant did not know what we know. She became increasingly suspicious. Her allegation that information was withheld (Detriment 5) reflects that suspicion. Grievance

[104]On 9 October 2020, the claimant raised a “Formal Concern” (to which we refer as a grievance) regarding Miss Underwood and Miss Mallett. Essentially, the grievance contained two allegations of discrimination: the first relating to the 18 March 2020 call and the second about being moved to Mrs Sherlock’s team, causing the claimant’s visit to Accident and Emergency two days later.

[105]One section of the Formal Concern form was headed, “What does a good outcome look like to you?” Under that heading, the claimant wrote, “I would like a move out of this business unit”, adding that Miss Underwood and Miss Mallett “do not understand disability and reasonable adjustments”. She expressed the view that disciplinary action should be taken against them.

[106]In October 2020, the claimant supported a colleague who was bringing an employment tribunal claim.

[107]On 24 November 2020, Ms Jayne Logan of Human Resources e-mailed managers with the arrangements for investigating the claimant’s grievance. Ms Elizabeth McLachlan was appointed as Decision Manager, Miss Lisa Tumilty (Higher Officer) was nominated as Investigation Manager, supported by Ms Carol Johnson, Life Tax Specialist, as note taker. SURF, complaints, the claimant’s return-to-work discussion and personal file request

[108]During 2020, the respondent changed the way in which the Administrative Officers’ work was managed within AAS. The new system was called SURF. Referrals were generated automatically. This affected the claimant’s workload, because her work profile included Administrative Officers’ work. The claimant found that it took her longer to deal with SURF referrals, or “robot e-mails” as she called them, than conventional cases. Sometimes she made mistakes, which prompted complaints.

[109]Part of the responsibility of a Higher Officer within AAS was to deal with complaints from taxpayers. Where the complaint concerned the claimant’s own work on a case, she was expected to respond to the complaint herself. More general complaints were spread across the team. The process of looking into a complaint involved consulting written guidelines and completion of a lengthy template form. The claimant found it time-consuming and dispiriting. The task was a reminder of the very existence of the complaint, which prompted intrusive thoughts.

[110]At 7.36pm on 26 November 2020, the claimant e-mailed Mrs Sherlock to say that she was “struggling with how SURF work has impacted on my ability to do my other work” and was also “extremely exacerbated by the amount of complaints I’ve had to deal with, it just feels like I’m getting one a week and they take up all of my time.” She added that it was affecting her mental health.

[111]This was the first time that the claimant had raised any concern about being disadvantaged by having to do complaints work.

[112]Mrs Sherlock saw the e-mail the following morning, 27 November 2020, and immediately arranged a telephone call. They spoke shortly afterwards. The claimant told Mrs Sherlock that she was unwell with a migraine and could not work that morning. She added that she was feeling better about complaints since she had started work on the latest one. Mrs Sherlock was not fully reassured. She told the claimant that it was still important to put a stress management plan in place and to review the adjustments and support that the claimant required.

[113]At 3pm the same day, the claimant informed Mrs Sherlock that she would be able to do some work that day. They exchanged further e-mails, in which the claimant indicated that she expected to do about 3.5 to 4.5 hours’ work. Mrs Sherlock asked the claimant to record the hours that she had not worked as sickness absence, and that they would have a return-to-work discussion the following Tuesday.

[114]There was considerable debate at the hearing about the consequences of this discussion. Our finding, in short, is: 114.1. The arrangement benefited the claimant so far as her working hours were concerned. Her hours of sick leave up to 3pm were treated as hours worked and added to her “flexi bank”. Had the claimant not recorded the morning and early afternoon as sick leave, she would have had to work additional hours at some later point in time. 114.2. The claimant had been absent on sick leave for part of a day. Under the respondent’s Supporting Your Attendance Policy, a part-day absence did not count towards any trigger points for future absence management. 114.3. There was no policy that required the respondent to pretend that the claimant had worked all day, or had been well enough to work all day. There was nothing to prohibit a Civil Servant’s line manager from holding a returnto-work discussion following a part-day absence.

[115]Mrs Sherlock asked for the claimant not to be allocated any Administrative Officers’ work for a week. She confirmed this arrangement with the claimant by e-mail, also on 27 November 2020.

[116]At 6.57am on Tuesday 1 December 2020, Mrs Sherlock e-mailed the claimant to arrange a call. The purpose was “to go over that last complaint” and to “discuss the wellness plan”. Her e-mail did not explicitly say that this conversation would be treated as a return-to-work discussion. It would, however, clearly be understood by a reasonable reader to refer back to the conversations that they had had on 27 November 2020 in which Mrs Sherlock had said that a return-to-work discussion would take place on Tuesday and that they would discuss a stress management plan.

[117]The claimant confirmed her availability for the call. She did not ask for an agenda or a companion.

[118]At no point during the call was Mrs Sherlock aware that the claimant had assisted a colleague with their employment tribunal claim the previous month.

[119]The call itself took place at about 11am. They discussed the claimant’s recent migraine, her pattern of health generally, and how it was affected by the claimant’s work. There was a conversation about the claimant’s WAP and whether any further adjustments were needed.

[120]Mrs Sherlock agreed that no general complaints would be referred to the claimant until January (the following month). If there were any complaints specific to the claimant’s work, Mrs Sherlock would expect the claimant to have to deal with them. It was important, in Mrs Sherlock’s opinion, for individual team members to take responsibility for any errors that they had made and to learn from them. They would also have the best understanding of the case and be able to understand more quickly what had gone wrong.

[121]Mrs Sherlock also provided the claimant with an outline Wellness Plan. It was agreed that the claimant would undertake some e-learning and decide whether the plan would be beneficial to her.

[122]There is some dispute about exactly what was said during certain parts of the call. It is sufficient for our purposes to record that the claimant’s and Mrs Sherlock’s recollections were different.

[123]The majority of the conversation was recorded on a template Return-to-Work Discussion Form. Above the free-text field where the actual discussion was summarised, there were multiple boxes in which Mrs Sherlock inserted specific pieces of information. In the box marked, “Period of absence”, Mrs Sherlock entered, “part day – 2.05 hours”. A section of the absence form appeared to be a toolkit for calculating trigger points. In that section, one of the boxes was marked, “Total days of absence relating to this period”. Mrs Sherlock confirmed in that box that the number of days was zero.

[124]The next day, 2 December 2020, Mrs Sherlock e-mailed a copy of the Wellness Plan and the Return to Work Discussion Form.

[125]The claimant was upset and worried when she received the form.

[126]Part of the claimant’s anxiety was over what she perceived to be inaccuracies in Mrs Sherlock’s account of what they had discussed. One of the effects of her disability was lapses in memory. Where she believed that a meeting had been inaccurately summarised, she was not sufficiently confident in her recollection to be able to challenge the written record retrospectively. The claimant did not at this stage have in mind the rule (PCP6) against audio-recording of meetings, or the disadvantage that it would cause. She did not tell anyone that she would like to be able to audio-record any part of any meeting.

[127]Of far greater concern to the claimant was the form on which the information had been written. As the claimant saw it, the Return to Work Discussion Form was only used when taking attendance management action under the Supporting Your Attendance Policy. She believed that Mrs Sherlock was “invoking” the policy, which would mark the start of a formal attendance management process. From the claimant’s point of view, she had not actually been absent on sick leave for any part of the previous Friday. She felt that it was unfair of Mrs Sherlock to treat it even as a part-day’s absence. In the claimant’s mind, this manufactured absence would count towards future trigger points, or would be considered inappropriately as a relevant part of her attendance history if Mrs Sherlock were to take future attendance management action. This is said to have been Detriment 3.

[128]Later that day, the claimant e-mailed Mrs Sherlock with some proposed amendments to the Return to Work Discussion Form. Some of the corrections were to what the claimant was recorded as saying. At least one correction was to something that Mrs Sherlock claimed to have said. This is relevant to PCP6. The claimant asked for the suspension of further complaint referrals to last beyond January 2021, and for complaints about the claimant’s own work to be handled by someone else.

[129]Mrs Sherlock agreed, effectively, to park any disputes about what had been said during their call, and to incorporate the claimant’s proposed corrections into the Return to Work Discussion Form. As for suspension of general complaints work beyond January 2021, she agreed to “review this following the festive period”. She explained her rationale for expecting the claimant to deal with complaints about her own work.

[130]The claimant discussed the Return to Work Discussion Form with Miss Griffith, who separately e-mailed Mrs Sherlock, also on 2 December 2020. The management response to this e-mail is the subject of Detriment 2 and Trade Union Detriment. To understand the issues in these complaints, it is unfortunately necessary to set out the contents of the e-mail in some detail. Amongst the points made by Ms Griffith were: “I have to say I would dispute this recording of two hours sick and would also dispute this being kept on Christine’s file. You also under GDPR need permission from Christine to place anything regarding her disability in form of notes on her file. Do you ask Christine for her permission to minute such personal details?” Also I would also like to request a copy of her personal file to be sent to me for review , Please can you ensure that any logic involved in any automated decisions made about her as well as manager decision trees/opinion/thoughts and written notes, are also included. As you will be aware a SAR can be made by or on behalf of an individual for the information which he is entitled to ask for under this piece of legislation and does not to be in any particular form. I’ve copied Christine in so that you are satisfied that consent has been provided to me to obtain the information on her behalf. … I was reading through the points Christine has noted regarding the changes to working practice, can I request the equality impact risk assessment that was completed when the working practice was amended? As Christine has mentioned this has exacerbated her disability, I get you’re not directly responsible for that change to the practice, but could you make the enquires and get back to me with what was assessed please. As Christine has mentioned work having a direct influence on her mental health have you advised Christine to fill out a HRACC1?”

[131]In fact, there was no obligation on anyone in the AAS Business Unit to carry out an equality impact assessment in relation to the introduction of SURF. The claimant had given permission for information about her disabilities to be retained on her WAP, which would be accessible to her line manager as a personal file would be. Mrs Sherlock did not need an accident report form to tell her the causes of the claimant’s migraine or other health symptoms. They had discussed the causes of the claimant’s current symptoms, which included work pressures, but also other factors unrelated to work.

[132]We have no doubt that the claimant and Ms Griffith genuinely believed that the claimant had been wronged by Mrs Sherlock’s use of the Return to Work Discussion Form. In our view, it is a pity that they did. We do not make this comment for its own sake. From our standpoint, this is an example of how, at times, the claimant viewed management actions through a prism of rigid adherence to policies and procedures, and from the perspective of her own vulnerability. Through that prism, and from that perspective, the claimant saw management actions as being detrimental to her, when on any objective view they were supportive.

[133]Contrary to the claimant’s case on Detriment 3, there are no facts from which we could conclude that Mrs Sherlock’s choice of form was influenced by the claimant’s first claim to the tribunal, or any protected act that she had done. Even if there were such facts, the explanation was obvious, and would easily prove that the reason had nothing to do with a protected act. The claimant had been absent from work for part of the day due to a migraine, the day after she had said her health was “extremely exacerbated” by her work. When she returned to work, Mrs Sherlock wanted to discuss the working arrangements to ensure that her health was protected. The respondent’s guidance stated that it was good practice to keep a record of that discussion. The Return to Work Discussion Form provided a natural ready-made template for such a record. Response to personal file request and management of the grievance

[134]Mrs Sherlock interpreted Miss Griffith’s 2 December 2020 e-mail as making a SAR on the claimant’s behalf. She forwarded it to the SAR Team on 9 December 2020. Shortly afterwards, she e-mailed Miss Griffith to say that the “SAR” had been forwarded to the SAR Team.

[135]Mrs Sherlock also responded to the other points in Miss Griffith’s e-mail. These responses prompted further e-mails that passed to and fro. The tone became increasingly entrenched.

[136]On 11 December 2020, the SAR Team enquired of Miss Griffith whether the only information that was being sought was the claimant’s personal file. Miss Griffith confirmed that it was.

[137]The claimant submitted a further HRACC1 form on 12 December 2020, setting out the events since 1 September 2020, stating that they had exacerbated her mental health. They included Mrs Sherlock’s response to Miss Griffith’s request for her personal file. She described the response as “petty behaviour from my line manager in what I deem a deliberate attempt to frustrate both me and my representative and create unnecessary work…”

[138]On 14 December 2020, as part of the ongoing correspondence with Mrs Sherlock, Miss Griffith pointed out that she was not making a SAR, just requesting the claimant’s file. The next day, Ms Cheryl Todd of HR Operations emailed Miss Griffith to say that she had been “reading through the SAR request below” and that there appeared to be no express authorisation by the claimant to allow Miss Griffith to make the SAR on her behalf. She asked for a copy of the authorisation. Miss Griffith replied eight minutes later to say that she had not made a SAR, but had merely requested the claimant’s personal file. She then turned her attention to Mrs Sherlock. In an e-mail sent at 9.12am, Miss Griffith accused Mrs Sherlock of “blocking me from information to work [the claimant’s] case”. She copied in the claimant, who, for the first time, directly asked Mrs Sherlock for a copy of her personal file. She confirmed that what she was seeking was “everything after [2 October 2020].”

[139]By letter dated 14 December 2020 and e-mailed on 15 December 2020, Miss Tumilty invited the claimant to a Formal Concern Meeting scheduled for 22 December 2020. The letter informed the claimant of her right to be accompanied by a trade union representative and provided a link to the respondent’s written policy, Being Accompanied.

[140]On receipt of the letter, the claimant e-mailed Miss Tumilty, escalating the issue of access to her personal file. Her e-mail shared Miss Griffith’s concern that the delay in receipt of her personal file meant that Miss Griffith would not be able to provide “adequate and proper support”.

[141]On 16 December 2020, Mrs Sherlock provided the claimant with the information held by her from 2 October to date.

[142]The e-mails continued. The claimant’s position was that Mrs Sherlock should send everything in her personal file directly to Miss Griffith, including the preOctober information that had already been provided to the claimant in response to her previous request. Mrs Sherlock did not understand what more was required of her. There did not appear to be any reason why the claimant could not have sent this information to Miss Griffith herself.

[143]Later on 16 December 2020, the claimant e-mailed Mrs Sherlock about her allocation of work and asked for it to be reduced “due to how I have been feeling and my concentration levels etc”. Mrs Sherlock agreed to the claimant’s request.

[144]The following day, 17 December 2020, was Mrs Sherlock’s last working day before the festive period. She did not think that she would have time to respond to the request for the full personal file, so she asked her “buddy” Team Leader (Miss Underwood) to deal with it. Unfortunately, Miss Underwood was unable to send the file either, because it was also her last working day before the holidays. Mrs Sherlock then went on leave, returning on 5 January 2021.

[145]On 18 December 2020, the claimant e-mailed Miss Tumilty to say that neither she nor Miss Griffith would be attending the Formal Concern Meeting scheduled to happen in four days’ time. The reason given by the claimant was that Mrs Sherlock had not provided the claimant’s personal file to Miss Griffith. According to the claimant’s e-mail, this was a “deliberate and calculated act to interfere in me accessing the employers grievance process and it has exacerbated my disabilities”. Her e-mail was copied to Mr Brady, who was still in charge of the the ISBC Directorate. Miss Griffith e-mailed shortly afterwards, echoing the same sentiment. Both e-mails were eloquently written, but neither of them explained why the claimant could not just provide the information to Miss Griffith, or why it was essential for Miss Griffith to have the file in a particular format before she could accompany the claimant.

[146]Miss Tumilty replied to the claimant, explaining the purpose of the grievance meeting, encouraging her to attend and offering to rearrange a further meeting following provision of the personal file before the investigation was finalised. The claimant did not agree to this proposal and the grievance meeting was therefore postponed.

[147]Mr Brady, having been copied in, added his contribution on 21 December 2020. He explained that he had not been involved in the conversation previously, but that, looking back at the correspondence, Miss Griffith’s e-mail had been correctly interpreted as a SAR. He did not instruct anybody to step into Mrs Sherlock’s shoes and provide a copy of the personal file to Miss Griffith before the holidays.

[148]On 21 December 2020, the claimant made a formal “information rights concern” and “complaint regarding my personal data”. Her complaint was addressed to the respondent’s Data Protection Officer. This was treated as a request for a review and forwarded to Mrs Sherlock the following day. Mrs Sherlock dealt with the request in January 2021 and enclosed a further redacted document.

[149]The claimant presented her second claim to the tribunal on 23 December

[150]The full personal file was provided to the claimant and Miss Griffith as a composite document on 5 January 2021. It did not contain any information that had not already been provided. Significantly, in the opinion of Miss Griffith and the claimant, Mrs Sherlock was able to provide the file on her first day back at work. The quick turnaround begged the question, in their minds, why Mrs Sherlock could not have acted with the same despatch prior to going on leave. One thing that slipped their minds was to let Miss Tumilty know that they had now received the file and were ready to attend a grievance meeting.

[151]We are now in a position to record some important findings of fact in relation to Detriment 2 and Trade Union Detriment. 151.1. Mrs Sherlock never refused to provide the claimant with her personal file. She forwarded the request to the SAR Team because she believed that Miss Griffith was making a SAR. Not only was this her genuine belief, but it would be difficult for her to interpret Miss Griffith’s 2 December 2020 e-mail in any other way. The request was expressed in the language of data protection legislation. Its place in the e-mail was immediately after a challenge to Mrs Sherlock to justify her action under the General Data Protection Regulation. Most glaringly, the request specifically stated that a SAR could be made on a union member’s behalf. 151.2. When it was made plain to Mrs Sherlock that the claimant was actually making a local request for her personal file, she did not refuse that request either. She promptly provided all the additional information that the claimant had not already been given. 151.3. Mrs Sherlock did not provide the information to Miss Griffith directly: she gave it to the claimant instead. Nor did she provide all the information in a single document before going on leave. Even if either of these shortcomings could properly characterised as a refusal, they had nothing to do with any previous claim that the claimant had brought, or any other action of hers under the Equality Act 2010, and was not intended in any way to prevent or deter the claimant from being accompanied at her grievance meeting. Her reason for not doing more was that it was her last working day before two weeks of leave and she did not have time. It is evident to us that this was genuinely the reason from Mrs Sherlock’s attempt to enlist the help of her buddy Team Leader. 151.4. Mr Brady never refused to provide the claimant with her personal file. His omission to intervene on 15 December 2020 had nothing to do with any protected act that the claimant had done. He believed his role to be to explain the decision-making to date, and to respond to the criticisms that both the claimant and Miss Griffith were making. In his view, Miss Griffith had made a SAR which had been appropriately treated as such. 151.5. Miss Underwood had an opportunity on 18 December 2020 to provide Miss Griffith with the claimant’s personal file, but did not do so. We are satisfied that her reason was that she was on her last working day before the start of the holidays. The claimant says that the release of the claimant’s personal file was a straightforward task. It is unlikely that anyone in Miss Underwood’s position would have seen it that way. There had been considerable e-mail traffic on the subject from a number of different sources. It would have been a time-consuming task to work out exactly what she was require to do. 151.6. It is especially unlikely that either Mrs Sherlock’s or Miss Underwood’s purpose was to prevent or deter the claimant from being accompanied by a trade union representative at her grievance meeting. Both Mrs Sherlock and Miss Underwood had signed the claimant’s WAP saying that the claimant could be accompanied by a union representative at meetings if she wished. This facility included meetings at which the claimant had no statutory right to a companion. The arrangement had been implemented in practice, for example, by Miss Underwood rearranging a meeting November 2019 so Miss Griffith could attend. Miss Tumilty suggested a compromise solution that would have involved Miss Griffith attending not one grievance meeting, but two. Occupational health report and health discussion

[152]On 22 December 2020, following a referral by Mrs Sherlock, the claimant spoke on the telephone to Ms Evelyn Bird, Occupational Health Case Manager. Ms Bird reported the same day. Her report highlighted the claimant’s ongoing mental health condition and impaired concentration and memory. She suggested a temporary reallocation of some work tasks, a buddy or mentor “when new learning is to be undertaken”, and flexible working to allow additional break times.

[153]Ms Bird relayed the claimant’s preference for a “change of job role/department”.

[154]The report did not suggest that the claimant would be at any disadvantage without an agenda in advance of every meeting, or a companion at every meeting.

[155]As promised, Mrs Sherlock reviewed the pause on allocation of complaints work to the claimant. On 6 January 2021, she informed the claimant that new non-specific complaints would continue to be suspended until the end of the month.

[156]On 12 January 2021, the claimant informed Mrs Sherlock that she had recently been prescribed medication by her general practitioner. This prompted Mrs Sherlock to call the claimant on 13 January 2021 for a much longer conversation. There was no agenda for the call; the claimant did not ask for one. The claimant did not have, or request, any companion. Their conversation was cooperative and productive. They discussed the kind of medication the claimant had been prescribed, its purpose, the dose, and the side effects. Mrs Sherlock considered that this information was worthwhile to record, because it had not been captured in the previous months’ occupational health report.

[157]They discussed Ms Bird’s recommendations in detail. Mrs Sherlock agreed to continue with a reduced allocation of SURF work in addition to the continued pause in non-specific complaint referrals. The claimant asked for Mrs Sherlock’s support in arranging a change of Business Unit.

[158]Mrs Sherlock typed a two-page note of the conversation and e-mailed it to the claimant on 13 January 2021, adding a minor amendment the following day.

[159]Later on 14 January 2021, the claimant replied, “Once again you have completed extensive notes, containing my personal data and not informed me you were doing so only that you would send a couple of bullet points. Notes are again not accurate of the conversation held and I find this overbearing supervision which is exacerbating to my mental health and I would please ask that if you wish to hold further meetings my PCS rep is… invited, as per my WAP.”

[160]Mrs Sherlock responded on 18 January 2021 by agreeing to document future discussions differently, and inviting the claimant to point out what the inaccuracies were in her note. The claimant forwarded Mrs Sherlock’s e-mail to Miss Griffith, stating, “I think they do this on purpose so it takes time out of my day and affects my productivity.” To Mrs Sherlock, the claimant replied saying, “I did not give permission for what I consider intrusive probing of my disabilities and medication nor did I provide permission for it to be recorded and kept in my personal file, please destroy this and update my WAP with the agreed reasonable adjustments.”

[161]In reply, Mrs Sherlock stressed the need to be able to have, and write down, supportive conversations about the claimant’s health. She reminded the claimant, correctly, that the respondent’s Staff Data Privacy Notice authorised her to hold information about the claimant’s health. She agreed to remove the claimant from all SURF work. As for the claimant’s requested Business Unit move, Mrs Sherlock informed the claimant that she had discussed the proposal with Miss Mallett and had agreed that “our first consideration would be to retain you in your current role and will therefore consider workplace adjustments to achieve that”. Efforts to progress the grievance

[162]In the meantime, Miss Tumilty continued her efforts to investigate the claimant’s grievance. Not having heard from the claimant or Miss Griffith by 25 January 2021, she e-mailed them both, asking for an update on the claimant’s personal file. Miss Griffith replied on 27 January 2020 to say (truthfully) that the claimant was currently on sick leave. Miss Tumilty e-mailed again on 22 February 2021 asking about the current position, but did not receive a reply.

[163]By early March 2021, the claimant had returned to work. She did not inform Miss Tumilty that she had done so, or provide any further indication of when she might be ready to attend a grievance meeting. April 2021 and the involvement of Miss Mallett

[164]By April 2021, the coronavirus vaccine programme was well underway, the public were less at risk from COVID-19 and the respondent’s staff had started to return to office working. Some time between 13 and 20 April 2021, the claimant went to the office. Mrs Sherlock stayed behind late to see her, but found it hard to engage the claimant in conversation.

[165]The claimant and Mrs Sherlock spoke on a call to review the claimant’s WAP. On 9 April 2021, Mrs Sherlock e-mailed the updated WAP to the claimant and asked for her comments. After a good-natured exchange about technology hiccups and typographical mistakes, the claimant asked on 13 April 2021 for the WAP to be amended to read, “follow in writing for meetings – eg agenda and post notes”. This came as a surprise to Mrs Sherlock, who did not recall there having been a discussion of either agendas or post-meeting notes. She e-mailed the claimant on 22 April 2021 to point this out and to suggest a practical solution. She explained that she did not “have the capacity to do a write up following general/team calls”, adding, “I am happy for you to take your own notes and send them to me for agreement, or I can ask the team if they would like to set up a rota and write the notes on a rota basis, let me know which you prefer?”

[166]The claimant replied the same day. In her e-mail, she insisted that premeeting agendas had been “agreed at the same time as having a buddy with me was agreed”. Her e-mail stated that, at their WAP review call, the claimant had observed that the agreement was not always being implemented. “For the benefit of the doubt”, she added, “I want it clarifying now and there should be no issue with this.” She claimed that these adjustments should already “have been happening as per my WAP”. She rejected the suggestion of a team rota, explaining that she did not want to cause resentment among the other members of the team. Her e-mail ended with a summary of her understanding of the Equality Act 2010.

[167]It is clear to us that, the time of sending this e-mail, the claimant was feeling embattled. She genuinely though that Mrs Sherlock was resisting her attempts to get all the adjustments she thought she should have, and that this meant that she had to “fight tooth and nail to get implementation”. She let her feelings spill over into the e-mail.

[168]We are not alone in finding the claimant’s e-mail to be combative. Mrs Sherlock thought so, too. She replied on 26 April 2021. Her e-mail began, “I appreciate this is an emotive subject, however the tone of your e‐mail comes across as quite abrasive and whilst I understand this subject is important to you, I would ask you not to use that tone in any future correspondence.”

[169]This sentence is said to have been Detriment 6.

[170]She re-opened the offer of a rota for taking notes of team calls, and reassured the claimant that colleagues would not be informed that it was for the claimant’s benefit. Trying to remain conciliatory, she added, “Let’s continue to work together…as your wellbeing has always been my priority.”

[171]This e-mail conversation had been copied to Miss Griffith, who, on receipt of Mrs Sherlock’s latest e-mail, decided to join in. She supported the claimant’s account of the most recent WAP meeting, together with her understanding that “post and pre meeting notes” had always been agreed. On the question of companions, Miss Griffith stated, “the WAP has in there that [the claimant] should have a buddy in meetings”. Miss Griffith also took issue with Mrs Sherlock’s reference to the tone of the claimant’s e-mail.

[172]Mrs Sherlock engaged with Miss Griffith’s various points in an e-mail on 29 April 2021. She explained why she had called out the tone of the claimant’s email. In an effort to make progress, Mrs Sherlock agreed that, going forward, the claimant could have a companion at all meetings.

[173]A parallel conversation took place between the claimant and Mrs Sherlock. In an e-mail headed, “Directorate move”, and sent on 12 April 2021, the claimant stated, “Sometime ago I asked you speak to [Miss Mallett] about a managed move to another directorate and you said that you would look into it.”

[174]Mrs Sherlock had, it will be remembered, already provided a considered response to the claimant’s request for a change of Business Unit. She believed that the claimant’s request for a new Directorate was a reference back to her earlier Business Unit transfer request. By e-mail on 13 April 2021, Mrs Sherlock referred the claimant to her earlier response.

[175]This is a convenient point to mention an amendment that the claimant asked to make to her claim. The amendment would change the claimant’s case on Detriment 6. Given the chance, the claimant would argue that she did a protected act by asserting her right to reasonable adjustments in her e-mail of 22 April 2021, and it was this assertion of her rights that motivated Mrs Sherlock to criticise the tone of her e-mail. The claimant’s 22 April 2021 is not one of the six protected acts set out in the list of issues.

[176]We do not have any evidence from Mrs Sherlock on this point. Her witness statement did not say to what extent her impression of the claimant’s tone was influenced by the fact that the claimant had asserted her right to reasonable adjustments on 22 April 2021. There was no oral evidence from Mrs Sherlock about it either. This was because the claimant did not put that case to Mrs Sherlock. Our employment judge allowed the claimant to plug other gaps in the evidence by reminding the claimant of her case in respect of each witness, and helping the claimant to put that case before the witness finished giving her evidence. This was not possible in the case of Detriment 6. The evidence had already concluded by the time the claimant asked to amend her claim to include a new protected act.

[177]Putting the claimant’s case to Mrs Sherlock was not just a box-ticking exercise. In our view, the lack of evidence on this point is important. The context of the e-mail exchange pointed to a fairly obvious reason why Mrs Sherlock took issue with the tone of the claimant’s e-mail. It does not appear to have been the fact that the claimant was pointing out the duty to make reasonable adjustments: the claimant had used the language of the Equality Act many times before when asking for adjustments to be made. What appears to have been different about the claimant’s 22 April 2021 e-mail was the manner in which the claimant was seeking to make the point. It contained the peremptory demand, “I want it clarifying now”. It accused Mrs Sherlock of failing to honour a previous agreement for something that had never been agreed in the first place. Up to that point, the e-mail conversation had been constructive and even light-hearted. Mrs Sherlock was right to find the 22 April 2021 e-mail abrasive. In the absence of some compelling evidence that Mrs Sherlock was motivated by the actual assertion of the right to adjustments, it would appear that all she was trying to do was to remind the claimant of an appropriate manner of communication and then continue to try to reach agreement on the adjustments that could practically be made to support the claimant.

[178]On 27 April 2021, on the advice of Miss Griffith, the claimant completed another HRACC1 form. When completing the section headed, “Describe what work-related … ill health was sustained”, the claimant wrote that Mrs Sherlock was “going against Civil Service values of honesty and integrity” by denying that adjustments had been agreed. Moreover, the claimant was “being gaslighted by my manager saying my e-mail has a tone when it does not”. She requested to be “moved out of the directorate as a matter of urgency…This is a safeguarding issue now”.

[179]The HRACC1 form was forwarded to Miss Mallett who took advice from Ms Atkin on how it should be investigated. Amongst the options she canvassed were mediation between the claimant and Mrs Sherlock, or for the claimant to be invited to merge the HRACC1 investigation with her ongoing grievance. Miss Mallett then asked the claimant for her preferences. Early the next morning, Miss Griffith replied on the claimant’s behalf, requesting that the HRACC1 investigation and the grievance be kept separate. Miss Mallett’s response, at 3.40pm, was, “As I have been included in [the claimant’s] Grievance that is pending investigation, [and an employment tribunal], to ensure there can be no claims of impropriety, I will pass the HRACC1 on to another Grade 7 within the business for investigation. I will let you know who this will be.” Miss Griffith did not reply. At no stage did Miss Griffith suggest that the claimant’s consent would be required before the HRACC1 form could be passed to another Grade 7 manager.

[180]In between those two e-mails, Miss Griffith e-mailed Miss Mallett, in what is acknowledged to be Protected Act 5, adding her weight to the claimant’s request for a transfer away from “your section”. Amongst the reasons put forward in support of a transfer was the claimant’s “very basic support adjustments being refuted”.

[181]By e-mail dated 28 April 2021, Miss Mallett informed the claimant and Miss Griffith of her decision on the claimant’s transfer request. It was a long e-mail and Miss Mallett put a lot of thought into it. There are four aspects to the e-mail which are the subject of Detriment 7 and Harassment 1. To examine them, we need to reproduce much of the text. We have added emphasis and crossreferences, as explained later. “I understand that you are struggling at the moment…and want to reassure you that we want to help. I don’t believe that a move is the best way of supporting you…but I do recognise that you are dissatisfied working with [Mrs Sherlock] at the moment. Therefore, I suggest that subject to your agreement, we explore mediation at this time instead. I also realise that you are feeling low.”

[182]The e-mail continued with an invitation to suggest further workplace measures or support. Miss Mallett went on: “Over the last few years, you have strongly expressed how change can adversely impact you, and that you need set processes and guidance to follow. There are some day to day changes in our work priorities, but the spirit of our AAS work has essentially remained the same since 2016, and we are fortunate in that we do have scope to make adjustments to minimise the impact of the changes we make on your work where this is needed and would help. I know that at the moment you are struggling to undertake Administrative Officer level work, and therefore, exploring other roles across the department at [Higher Officer grade] would worry me that your condition would worsen and you would not be able to cope. [Passage (a)]. Given what you have told us about your need for continuity (which is also part of the reason for your Employment Tribunal claim as I understand it), I would feel that we would be failing you to move you elsewhere at this time; a full change of role and move to another area seems to be exactly the opposite of what you tell us that you do need. In the past you have requested managed moves off teams or work areas on several occasions, one of which was within AAS. We did not think was appropriate for the same reasons. Subsequently, we had opportunities for colleagues to transfer to other areas of CCG, and you told [Miss Underwood] that you wanted to remain on the group which we were really happy about. I am not aware of you applying for any jobs outside of our work area in the last 4 years, so I am confident that we can work with you to ensure you feel happier again. When I reflected on this last night Chris, I thought back over the managers that I am aware you have had since perhaps 2012, and I realised that you have at some point taken issue with all of those managers – be it requesting team moves, submitting a grievance, an informal complaint or raising dissatisfaction with how that manager has tried to support you. That has unfortunately extended across two lines of business, 3 [Business Unit Heads] (Andrea Murphy, Richard Bullivant, myself), and 7 Managers (Tony Roberts, Cathy Farrell, Hugh Pinnington, Vicky Rawlinson, Natasha Worth, Lynsey Underwood, and now Julie Sherlock). [Passage (b)]. Although you were a fully trained VAT Higher Officer, we supported you with a move off VAT and retrained you on [Income Tax Self-Assessment] at your request. I have reflected on the list above and I know that these are all good, competent managers and good people who have been keen to help you. [Passage (c)]. I know that Julie [Sherlock] is very committed to this. She has a lot of experience in helping people with HR matters and supporting people successfully with mental health. This is something that she is passionate about. I don’t believe that Julie is a problem here [Passage (d)]; I just think that she is your current manager and I am the current [Business Unit Head]. We don’t take this personally as we know you are finding things hard and we just want to help.”

[183]The claimant found the e-mail condescending. Four passages of the e-mail were particularly unwelcome to her. We have marked these in italics and used letters in square brackets to correspond to the allegations of unwanted conduct in the list of issues.

[184]The claimant believed that Miss Mallett was trying “to use the fact I had this grievance and her senior position to intimidate me…” She also believed that Miss Mallett wrote the e-mail “to deliberately cause me distress and exacerbate.”

[185]Our finding is that this was not Miss Mallett’s purpose at all. She was trying to give the claimant an honest explanation for her decision. Part of her reasoning was that, if the problem was that claimant felt unsupported by her manager, moving the claimant to a different manager was not the solution, because the claimant’s history tended to suggest that she would feel unsupported by whomever happened to be her manager at the time.

[186]On 29 April 2021, Miss Mallett e-mailed the claimant and Miss Griffith again, stating: “Jackie Cowell will cover your HRACC1 for you… and I will pass the relevant information to her.”

[187]Jackie Cowell was a Grade 7 manager based in Leeds.

[188]Miss Griffith responded to both e-mails on 29 April 2021. She criticised Miss Mallett for failing to obtain the claimant’s consent before passing the HRACC1 investigation to Ms Cowell. (The failure to obtain this consent is alleged to be Harassment 3).

[189]She described Miss Mallett’s 28 April 2021 e-mail as “highly inappropriate”, and put a series of emotive questions. Miss Mallett offered to speak to Miss Griffith, but the offer was declined. Miss Mallett then respondent to Miss Griffith on 4 May 2021 with a point-by-point rebuttal. Request for Dictaphone

[190]The claimant met with Ms Cowell on Teams on 18 May 2021. They discussed the incidents outlined in the claimant’s HRACC1 form. When the notes of the meeting were circulated for the claimant to check, the claimant asked for them to be amended to add this: “I… would like a reasonable adjustment of a Dictaphone providing. This is because my BUH has said going forward any meetings should have a buddy in for my manager, however this infringes my right to confidentiality and is not a reasonable request. If a Dictaphone was supplied, I could record what I say (and only what I say) which would support any short term memory and concentration issues and can be used as a record.”

[191]The claimant did not suggest to Ms Cowell that she needed, or wanted, a Dictaphone to use between meetings, or that she would be at any disadvantage between meetings without one.

[192]In her HRACC1 report, Ms Cowell recommended that a Dictaphone be considered.

[193]Miss Mallett read Ms Cowell’s report.

[194]On 14 June 2021, the claimant e-mailed Miss Mallett, stating: “I have asked for a [Dictaphone] as a reasonable adjustment, to record what I say, and only what I say, at any meetings or calls going forward. This is an extremely good way of helping me with some of the difficulties I face from my disabilities, such as short term memory issues it will also mitigate the need, in some cases for a buddy to attend meetings with me.”

[195]Miss Mallett replied on 16 June 2021, refusing the claimant’s request. Her email explained why she had come to that decision: “In addition to the reasoning I provided attached, if you were only recording your side of meetings, it would lack context so wouldn’t provide a full picture of the meeting to help going forward or help you to maintain a record of what your manager covers. …HMRC don’t endorse recording meetings (whether it would just be what you cover yourself, or that of any other parties), except in specific circumstances by mutual agreement for disciplinary meetings. Reasonable adjustments do need to be both reasonable and mitigate the problem itself. It would be reasonable for both you and your manager though to have a companion to support you both during meetings and take notes on your behalf.” Grievance

[196]Meanwhile, Miss Tumilty was still waiting to hear from the claimant and Miss Griffith about the grievance. She informed Ms Atkin that she would shortly be having surgery and be unable to work for about 3 months. It was therefore decided that Miss Tumilty would step aside. The investigation would be done instead by Ms Johnson (previously appointed to be the note-taker). Ms Johnson took over the role on 28 April 2021.

[197]The Resolving a Concern Policy required 5 days’ notice of a grievance meeting. Owing to a combination of the notice period, the claimant’s leave and Ms Johnson’s pre-booked leave, it was not possible for the meeting to take place until 1 June 2021. In fact, the meeting took place on 4 June 2021. It took place remotely, using Microsoft Teams. They discussed the allegations that the claimant had made in her October 2020 Formal Concern. The claimant also raised further complaints and asked Ms Johnson to investigate those as well.

[198]Ms Johnson thought it would be helpful to see a number of documents in order to investigate the allegations. She wrote to the claimant on 9 June 2021 with a list of those documents. The claimant asked to use work time to search for the documents Ms Johnson had requested. This led to a four-way discussion between Ms Johnson, Ms Atkin, Mrs Sherlock and the claimant. On 14 June 2021, Ms Johnson confirmed that the claimant could have three hours’ paid time to look for documents, which the claimant then provided on 16 June 2021.

[199]This correspondence crossed with a further Formal Concern which the claimant raised on 14 June 2021. Essentially, this second grievance was about perceived “gaslighting” by Mrs Sherlock over adjustments in relation to meetings, her criticism of the claimant’s tone in the 26 April e-mail, and Miss Mallett’s 28 April e-mail. In consultation with Ms Atkin, Ms Johnson decided to incorporate the second grievance into the current investigation of the first grievance.

[200]Having received the claimant’s documents and the second grievance, Ms Johnson asked to speak to the claimant again so she could discuss the second grievance. By e-mail on 28 June 2021, the claimant made a “reasonable adjustment request” for Ms Johnson to send her the questions in writing instead. This was agreed.

[201]Ms Johnson caried out interviews with Mrs Sherlock, Miss Mallett, Miss Underwood, Miss Griffith and Ms Cowell between 29 June and 26 July 2021. As previously agreed with the claimant, Ms Johnson prepared a list of questions which she sent to the claimant on 20 July 2021.

[202]The claimant presented her third claim to the tribunal on 22 July 2021.

[203]She responded to Ms Johnson’s questions on 26 July 2021. Her e-mail included: “Unfortunately I haven’t got time to go through all this at the moment, sorry, but too much on my mind and too much to do”.

[204]The e-mail continued with a list of bullet points. Some of these appeared to Ms Johnson to contain new factual allegations that had not been in either grievance. The new complaints included: 204.1. Miss Mallett had failed to provide relevant information to Human Resources 204.2. Further e-mails from Miss Mallett had devalued the claimant’s work 204.3. Miss Mallett had wrongly interfered with one of the claimant’s union briefings 204.4. Mr Brady had inappropriately shared the claimant’s HRACC1 form with Miss Mallett and Mrs Sherlock

[205]The e-mail concluded: “I really would like this finalised asap now, as [it’s] causing additional stress and whilst I appreciate you will still have had to do your day job whilst completing your role in this, I would ask as a reasonable adjustment to mitigate the exacerbation the length of time and delay causes, for the decision maker to wrap this up within 10 days of receipt.”

[206]This last passage caused Ms Johnson some consternation. This was the first time that the claimant had suggested to her that the investigation was not proceeding quickly enough, or that perceived delay was harming her health. Since 4 June 2021, Ms Johnson had been prioritising the grievance investigation and allowing her other work to fall behind. She did not have all the documents or answers to questions that she needed in order to complete the investigation. In view of the apparent importance of avoiding any further delay, Ms Johnson decided to complete her report as best she could based on the information that she had. She worked long hours to get her report written. The report was provided to the Decision Maker on 4 August 2021.

[207]Ms Johnson’s report was critical of Mrs Sherlock asking the claimant questions about her employment tribunal claim (Detriment 1) and criticising the tone of the claimant’s e-mail (Detriment 6). It described as “inappropriate” Miss Mallett’s reference to the claimant struggling with Administrative Officer work (Harassment 1 and Detriment 7). The report did not set out any findings in relation to the claimant’s four new allegations, or allegations where Ms Johnson believed that further evidence was required.

[208]The appointed decision maker was Mrs Ellen Hirst, Customer Compliance Manager. Her appointment was confirmed on 28 July 2021. By letter dated 17 August 2021, she invited the claimant to a Formal Concern meeting on 8 September 2021. This was the earliest date that could accommodate the notice requirements and the pre-booked annual leave of Mrs Hirst and the claimant.

[209]At the meeting on 8 September 2021, the claimant asked Mrs Hirst to “wrap up” the grievance within the process, including the new allegations that she had raised on 26 July 2021. It was agreed that Mrs Hirst would ask some further questions of Ms Johnson before reaching her decision. They discussed the substance of the claimant’s grievance and the meeting was adjourned.

[210]Mrs Hirst met Ms Johnson on 9 September 2021. They agreed that Ms Johnson would carry out some further investigations. Unfortunately, however, Ms Johnson was unable to give the further investigations the same priority as she had given to her initial report during the summer. She had effectively put her role on hold and could not do so any longer. She therefore worked on her further investigation concurrently with her day-to-day work. Consequently, her further investigation report was not provided to Mrs Hirst until 11 November 2021.

[211]Mrs Hirst recorded her decision in a Decision Notice, which she sent to the claimant on 16 December 2021. In summary, the grievances were not upheld, but Mrs Hirst made recommendations for a minute-taking rota at meetings, and suggested obtaining an occupational health report on the question of a managed move to a different Business Unit. It is unnecessary to set out the decision at any length. This is because Mrs Hirst’s decision-making is not under challenge in these claims.

[212]The claimant appealed against the outcome. Her appeal was considered by Ms Jo Hammersley, who was based in the Tax Treaty Team. Following an appeal meeting, Ms Hammersley provided a written decision on 10 February 2022.

[213]In broad outline, Ms Hammersley’s decision largely confirmed Mrs Hirst’s original grievance decision. Ms Hammersley did, however, express her concern about Miss Mallett’s e-mail of 28 April 2021 (Harassment 1 and Detriment 7). We set out Ms Hammersley’s concern in detail below. This is because our conclusion was ultimately different from Ms Hammersley’s view. The parties will want to know why we disagreed. This is what Ms Hammersley wrote: “I have read the email a number of times and feel that, at points, the tone and language falls short of the high expectations that HMRC has of its leaders. The phrasing could have been interpreted as holding you responsible for the breakdown in your past relationships with managers and Business Units Heads and I can understand why that would be upsetting. The email may have been well intentioned but it did not land in that way. Whilst I do not think that this amounts to intimidation or demonstrates systematic impartiality I do think that there are lessons to be learned. …the email was sent by [Miss Mallett] at 19.25 – possibly after a long and stressful day at work. Had this email waited until the morning then perhaps the content might have been quite different. I would also suggest reviewing what training is available … to help support [Miss Mallett] is ensuring that her communications align with HMRC’s values and commitments.” The claimant’s new role

[214]In 2022, the claimant successfully applied for a role with the respondent outside the Directorate. This was not a managed move, but a competitive application process. At the time of writing her witness statement, the claimant was much happier and less anxious in her new role. Relevant law Reasons for decisions

Relevant law

[215]The reasons given for any decision must be proportionate to the significance of the issue: rule 62(4) of the Employment Tribunal Rules of Procedure 2013. Disability

[216]Section 6 of EqA provides, relevantly: (1) A person (P) has a disability if- (a) P has a physical… impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities. … (5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).

[217]According to section 212(1) EqA, “substantial” means “more than minor or trivial”.

[218]Schedule 1 to EqA supplements section 6. Relevant extracts are: 5. Effect of medical treatment(1) 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 – (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect.

(2) “Measures” includes, in particular, medical treatment… PART 2 - GUIDANCE 10. Preliminary This Part of this Schedule applies in relation to guidance referred to in section 6(5). … 12. Adjudicating bodies (1) In determining whether a person is a disabled person, [a tribunal] must take account of such guidance as it thinks is relevant. 6. The relevant guidance is to be found in the Secretary of State’s Guidance on Matters to be Taken Into Account in Determining Questions Relating to the Definition of Disability (2011). The following passages appear to be helpful: … Effects of treatment B12. The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, “likely” should be interpreted as meaning, “could well happen”… … … 7. The tribunal must focus on what the claimant cannot do, or can do only with difficulty, rather than the things that she can do: Goodwin v. Patent Office

[1999] IRLR 4

. That is not to say, however, that the things that the claimant can do are completely irrelevant; they may shed some light on the extent of any difficulty in carrying out the activities upon which the claimant relies. 8. In assessing whether an impairment has an effect on a person’s normal day-to-day activities, it is appropriate for a tribunal to consider the effect on the person’s ability to cope in his or her job: Paterson v. Commissioner of Police for the Metropolis

[2007] ICR 1522

. An employer’s duty to make adjustments

[219]Section 20(3) of EqA sets out the relevant requirement of the duty to make adjustments. We have incorporated the relevant provisions of Schedule 8 of EqA and added emphasis to make it easier to follow. “…a requirement, where a provision, criterion or practice of [the employer’s] puts a disabled person at a substantial disadvantage in relation to [employment] in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

[220]Section 20(5), with corresponding modifications, reads as follows: “a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to [employment] in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.”

[221]The concept of a provision, criterion or practice (PCP) “does not apply to every act of unfair treatment of a particular employee”, but “must be capable of being applied to others”. A “one-off decision” may amount to a PCP if it would have been applied in future to similarly situated employees. “However, in the case of a one-off decision in an individual case where there is nothing to indicate that the decision would apply in future…the position is different”. See Ishola v. Transport for London

[2020] EWCA Civ 112

per Simler LJ, paragraphs 36 to 39, as authority for these propositions.

[222]When formulating the PCP, the proposed adjustment should be left out of account, otherwise the disadvantage cannot properly be tested: see Paulley v. FirstGroup plc

[2014] EWCA Civ 1573

, CA (reversed on a different point at

[2017] UKSC 4

) and Finnigan v. Chief Constable of Northumbria

[2013] EWCA Civ 1191

[223]The Equality and Human Rights Commission’s Code of Practice on Employment at paragraph 6.28 lists factors which “might be taken into account when deciding what is a reasonable step for an employer to have to take”. These include: “• whether taking any particular steps would be effective in preventing the substantial disadvantage;

• the practicability of the step;

• the financial and other costs of making the adjustment and the extent of any disruption caused;

• the extent of the employer’s financial or other resources;

• the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and

• the type and size of the employer.”

[224]The claimant need not show that the step would have prevented the disadvantage altogether: Noor v. Foreign and Commonwealth Office UKEAT 0470/10. Nor is it necessary for the claimant to show that the step would have been guaranteed, or even likely, to avoid the disadvantage. There must, however, be at least some prospect that the making of the adjustment will avoid the disadvantage: Leeds Teaching Hospital NHS Trust v. Foster UKEAT 0552/10.

[225]Elias LJ observed in Griffiths v. Secretary of State for Work and Pensions

[2017] ICR 160

, CA, that, “so far as efficacy is concerned, it may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness”.

[226]An employer is not under a duty to make adjustments where the employer does not know, and could not reasonably be expected to know, that an employee, or applicant, is likely to be placed at a substantial disadvantage caused by the provision, criterion or practice, or absence of auxiliary aid: Paragraph 20(1), Schedule 8 of EqA.

[227]What an employer could reasonably be expected to know will include what the employer would know if they made reasonable enquiries. The Code of Practice at paragraph 6.19 states: “The employer must, however, do all they can reasonably be expected to do to find out whether this is the case. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy…”

[228]The employer must disprove knowledge (actual or constructive) of “the disadvantage” that is caused by the provision, criterion or practice. The knowledge defence is not defeated by the employer’s awareness of some other substantial disadvantage to the claimant as a disabled person. Thus, in Glasson v. The Insolvency Service

[2024] EAT 5

, what mattered was the employer’s constructive knowledge “the particular disadvantage to which the claimant claimed … the PCPs put him” or, to put it another way, “the substantial disadvantage relied upon” (the claimant’s tendency to go into restrictive mode in interview because of his stammer) and it did not matter that the respondent knew of other disadvantages caused by the same PCPs (for example, the claimant’s need for additional time in interview).

[229]When making the objective assessment, the tribunal must strike a balance. It is undesirable that an employer should be required to ask intrusive questions of a disabled person about whether he or she feels disadvantaged, merely to protect themselves from liability: Ridout v. T C Group

[1998] IRLR 628

, recently approved in AECOM v. Mallon

[2003] EAT 104

. Direct discrimination

[230]Section 13(1) of EqA provides that a person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[231]Disability is a protected characteristic.

[232]Section 23 of EqA provides, relevantly, “(1) On a comparison of cases for the purposes of section 13… there must be no material difference between the circumstances relating to each case. (2) The circumstances relating to a case include a person’s abilities if-(a) on a comparison for the purposes of section 13, the protected characteristic is disability…”

[233]It is not enough that the treatment was different. It must have been less favourable.

[234]The test is not purely subjective. Treatment is not less favourable merely because the complainant thinks it is less favourable: Burrett v. West Birmingham Health Authority

[1994] IRLR 7

, EAT. The complainant’s perception is, however, highly relevant. Where treatment is considered by the complainant to be less favourable, their complaint of discrimination is not defeated merely because others might consider the treatment to be more favourable: see Birmingham City Council ex p Equal Opportunities Commission

[1989] AC 1155

[235]Treatment that appears at first to be identical may, on a more careful analysis, be revealed to be less favourable treatment. See, for example, Earl Shilton Town Council v. Miller

[2023] EAT 5

[236]Less favourable treatment is “because” of the protected characteristic if either it is inherently discriminatory (the classic example being the facts of James v. Eastleigh Borough Council, where free swimming was offered for women over the age of 60) or if the characteristic significantly influenced the mental processes of the decision-maker. It does not have to be the sole or principal reason. Nor does it have to have been consciously in the decision-maker’s mind: Nagarajan v London Regional Transport

[1999] IRLR 572

[237]Employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it because of the protected characteristic? That will call for an examination of all the facts of the case. Or was it for some other reason? If it was the latter, the claim fails. These words are taken from paragraph 11 of the opinion of Lord Nicholls in Shamoon v. Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

, updated to reflect the language of EqA.

[238]That said, the construction of a comparator can be a helpful discipline in cases of alleged direct disability discrimination. Treating a disabled person less favourably because of a person’s impaired ability to do aspects of their role is not a proxy for treating them less favourably because of their disability: Owen v. Amec Foster Wheeler

[2019] EWCA Civ 822

. Discrimination arising from disability

[239]Section 15(1) of EqA 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.

[240]Treatment is unfavourable if the claimant could reasonably understand it to put him or her to a disadvantage. When deciding whether or not treatment is unfavourable, it is important to be clear about what the treatment was. Treatment does not become unfavourable just because someone else was treated, or would have been treated, more favourably: Williams v. Trustees of Swansea Pensions & Assurance Scheme

[2018] UKSC 65

[241]The correct approach to a complaint under section 15 was enunciated by Simler P in Pnaiser v. NHS England

[2016] IRLR 174

at paragraph 31 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…

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

(e) … 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. … (i) … it does not matter precisely in which order these questions are addressed.

[242]When considering the justification defence (now found in subsection (1)(b)), the tribunal must weigh the discriminatory effect of the treatment against the reasonable needs of the business: Hardy and Hansons Plc v Lax

[2005] ICR 1565

, applying Allonby v. Accrington & Rossendale College

[2001] ICR 1189

[243]In Hensman v Ministry of Defence

UKEAT/0067/14

, Singh J held that, when assessing proportionality, while a tribunal must reach its own judgment, that must in turn be based on a fair and detailed analysis of the working practices and business considerations involved, having particular regard to the business needs of the employer.

[244]It seems to us that the looser the causal connection between an employee’s disability and the employer’s unfavourable treatment of the employee, the less would be the discriminatory impact. Therefore, other things being equal, it would be more likely that the unfavourable treatment was proportionate. This proposition appears to be right, because it should be easier to justify treatment that was decided on for multiple reasons, only one of which arose in consequence of the employee’s disability. It should also be easier to justify treatment for which the employer only had one reason, but where that reason had multiple causes, only one of which was the employee’s disability. Both scenarios may be contrasted with unfavourable treatment that had a stark discriminatory impact, such as dismissal for long-term sickness absence, where the employee’s disability was the sole cause of their sick leave.

[245]The Code offers guidance on the interrelationship between the making of adjustments and the proportionate means defence. The following extract appears to us to be relevant: “5.20 Employers can often prevent unfavourable treatment which would amount to discrimination arising from disability by taking prompt action to identify and implement reasonable adjustments… 5.21 If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified. …”

[246]Paragraph 5.21 of the Code is consistent with the following statement made by Simler J in Dominique v. Toll Global Forwarding Ltd

UKEAT/0308/13

(concerning the Disability Discrimination Act 1995) at paragraph 51: “….where there is a link between the reasonable adjustments said to be required and the disadvantages …being considered in the context of ….disability-related discrimination, it is important to ensure that any failure to comply with a reasonable adjustment duty is considered as part of the balancing exercise in considering questions of justification. This is because it is difficult to see as a matter of practice how a disadvantage that could have been addressed or prevented by a reasonable adjustment that has not been made can, as a matter of practical reality, be justified.” Indirect discrimination

[247]Section 19 of EqA provides, relevantly: “(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if- (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it put, or would put, B at that disadvantage; and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

[248]Disability is one of the relevant protected characteristics.

[249]In relation to disability, section 6(3)(b) of EqA provides that a reference to persons who share a protected characteristic is a reference to persons who have the same disability.

[250]At section 19(2)(b), the statutory definition requires a comparison of two groups, one with the characteristic and one without it. Section 23(1) of EqA requires that the circumstances of each group must be the same, or not materially different. Unlike in a direct discrimination case, section 23(2) does not expressly require that the circumstances of the comparator group have the same abilities as the people in the group that shares the characteristic.

[251]When section 19(2)(b) is read with 6(3)(b), it is clear that the tribunal must compare a (real or imagined) group of people who have the claimant’s disability with a (real or imagined) group of people who do not have that disability. The comparator group may, therefore, include people who have other disabilities: Booth v. Delstar International Ltd

[2023] EAT 22

[252]In order to test proportionality, the tribunal must balance the discriminatory effect of the PCP against the importance of the aim: Allonby v. Accrington & Rossendale College

[2001] ICR 1189

. Unlike in section 15, the tribunal must have regard to the discriminatory impact of the PCP across the group and not just on the individual. Harassment

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

[254]Subsection (5) names disability among the relevant protected characteristics.

[255]In deciding whether conduct had the proscribed effect, tribunals should consider the context, including whether or not the perpetrator intended to cause offence. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct related to other protected characteristics), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase: Richmond Pharmacology Ltd v. Dhaliwal

[2009] IRLR 336

[256]In Pemberton v. Inwood

[2018] EWCA Civ 564

, Underhill LJ gave the following guidance in relation to section 26: “In order to decide whether any conduct falling within sub-paragraph (1)(a) of section 26 EqA has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section 4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (subsection 4(b)).'' Victimisation

[257]Section 27 of EqA defines victimisation. Relevantly, the definition reads: (3) …making a false allegation… is not a protected act if that …allegation is made…in bad faith.

[258]Subjecting a person to a detriment means putting them under a disadvantage: Ministry of Defence v. Jeremiah

[1980] ICR 13

, CA, per Brandon LJ. A person is subjected to a detriment if she could reasonably understand that that she has been detrimentally treated. A detriment can occur even if it has no physical or economic consequence. An unjustified sense of grievance, however, is not a detriment: Shamoon v. Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

[259]As in direct discrimination cases, tribunals hearing victimisation complaints are encouraged to adopt the “reason why” test (Chief Constable of West Yorkshire Police v. Khan

[2001] ICR 1065

. Victimisation may occur subconsciously as well as consciously. Burden of proof

[260]Section 136 of EqA applies to any proceedings relating to a contravention of EqA. By section 136(2) and (3), if there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (“A”) contravened the provision concerned, the tribunal must hold that the contravention occurred, unless A shows that A did not contravene the provision.

[261]In Igen v. Wong

[2005] EWCA Civ 142

, the Court of Appeal issued guidance to tribunals as to the approach to be followed to the burden of proof provisions in legislation preceding EqA. They warned that the guidance was no substitute for the statutory language:(1) … it is for the claimant who complains of … discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination ... These are referred to below as "such facts".

(2) If the claimant does not prove such facts he or she will fail.

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of … discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

(5) It is important to note the word "could" in s. 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw …from an evasive or equivocal reply to a [statutory questionnaire].

(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts…This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.

(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.

[262]The Supreme Court has confirmed that the burden is on the claimant to prove that there are facts from which the tribunal could conclude that a contravention has occurred: Royal Mail Group Ltd v. Efobi

[2021] UKSC 33

[263]We are reminded by the Supreme Court in Hewage v. Grampian Health Board

[2012] UKSC 37

not to make too much of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other. Time limits

[264]Section 123 of EqA provides, so far as is relevant: (1)…proceedings on a complaint [of discrimination] may not be brought after the end ofthe period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section:(a) conduct extending over a period is to be treated as done at the end of the period;

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

[265]Where it is reasonably arguable that conduct extended over a period, the tribunal should not generally try to determine that question until it has heard the evidence: Hendricks v. Metropolitan Police Commr.

[266]The “just and equitable” extension of time involves the exercise of discretion by the tribunal. It is for the claimant to persuade the tribunal to exercise its discretion in his favour: Robertson v. Bexley Community Centre

[2003] EWCA Civ 576

. There is, however, no rule of law as to how generously or sparingly that discretion should be exercised: Chief Constable of Lincolnshire Police v. Caston

[2009] EWCA Civ 1298

. The discretion to extend time is “broad and unfettered”: Abertawe Bro Morgannwg University v. Morgan

[2018] EWCA Civ 640

[267]Tribunals considering an extension of the time limit may find it helpful to refer to the factors set out in section 33 of the Limitation Act 1980 (extension of the limitation period in personal injury cases): British Coal Corpn v. Keeble

[1997] IRLR 336

. These factors include: 267.1. the length of and reasons for the delay; 267.2. the effect of the delay on the cogency of the evidence; 267.3. the steps which the claimant took to obtain legal advice; 267.4. how promptly the claimant acted once he knew of the facts giving rise to the claim; and 267.5. the extent to which the respondent has complied with requests for further information.

[268]In Adedeji v. University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

, the Court of Appeal warned against using section 33 as a checklist. The statutory test is whether or not the extension is just and equitable. Trade union detriment

[269]Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 provides, relevantly, “(1) a worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of… (ba) Preventing or deterring him from making use of trade union services…”

[270]The tribunal must ascertain what was the employer’s main purpose: Dahou v. Serco Ltd

[2016] EWCA Civ 832

at paragraph 39. That involves examining the factors operating on the mind of the decision-maker: Dahou at paragraph 29.

[271]Whether an act or failure has the purpose of “preventing” or “deterring” the worker from making use of trade union services should be understood in a practical, industrial relations context. That said, some assistance can be found in the Oxford English Dictionary definition of “deter”, which includes, “to restrain from acting or proceeding by any consideration of danger or trouble”.

[272]On a complaint under section 146, it is for the employer to show what was the sole or main purpose for which they acted or failed to act. Amendments to claims

[273]Rule 2 of the Employment Tribunal Rules of Procedure 2013 sets out the overriding objective of dealing with cases fairly and justly. The overriding objective includes, where practicable, placing the parties on an equal footing, avoiding delay, saving expense, and dealing with cases in ways that are proportionate to the importance and complexity of the issues. Tribunals must seek to achieve the overriding objective in the exercise of any powers given to them under the rules.

[274]Rule 29 gives the tribunal wide case management powers. These include the power to allow a party to amend their claim, although that power is not expressly included.

[275]Guidance as to whether or not to allow applications to amend is given in the case of Selkent Bus Company v. Moore

[1996] IRLR 661

. The following points emerge: 275.1. A careful balancing exercise is required. 275.2. The paramount consideration is that of comparative disadvantage. The tribunal must balance the disadvantage to the claimant caused by refusing the amendment against the disadvantage to the respondent caused by allowing it.

[276]The following factors identified in Selkent may help the tribunal to conduct that balancing exercise: 276.1. The tribunal should consider whether the amendment is merely a relabelling of facts already relied on in the claim form or whether it seeks to introduce a wholly new claim. (Technical distinctions are not important here: what is relevant is the degree of additional factual enquiry needed by the claim in its amended form: Abercrombie & Ors v Aga Rangemaster Ltd

[2013] EWCA Civ 1148

). 276.2. Where the amendment raises substantial additional factual enquiry, the tribunal should give greater prominence to the issue of time limits and whether or not the relevant time limit should be extended. 276.3. The tribunal should have regard to the manner and timing of the amendment.

[277]The factors identified in Selkent should not be used as a checklist. What is required in every case is an analysis of comparative disadvantage: Vaughan v. Modality Partnership UKEAT 0147/20. Adjustments to tribunal procedure

[278]It is a fundamental right of a person with a disability to have a fair hearing in which they can participate effectively.

[279]A tribunal should pay particular attention to the Equal Treatment Bench Book when dealing with a party with a disability, especially a mental disability: Galo v. Bombardier Aerospace UK [2016] NICA 25.

[280]Tribunal procedures can cause disadvantages to participants with mental health disabilities. The tribunal may need to take a modified approach, in particular, to taking evidence (see Galo, above).

[281]It is important to respect individual autonomy. This includes respecting the wishes of the individual participants themselves. A disabled party or witness is usually best placed to know what adjustments they need: Rackham v. NHS Professionals Ltd UKEAT 0110/15.

[282]Tribunals should not take a rigid or mechanistic approach to the making of adjustments for disabled participants. A separate “ground rules” hearing is unnecessary, provided that the judge considers the matters that a ground rules hearing would normally cover: Anderson v. Turning Point Eespro

[2019] EWCA Civ 815

[283]Rule 7 of the Employment Tribunal Rules of Procedure 2013 states: “The Presidents may publish guidance for England and Wales … as to matters of practice and as to how the powers conferred by these Rules may be exercised… Tribunals must have regard to any such guidance, but they shall not be bound by it.”

[284]Presidential Guidance: Vulnerable parties and witnesses in Employment Tribunal proceedings states, so far as it is relevant: 11. … Vulnerability can be both cause and/or effect in understanding questions asked during a hearing – for example, in cross-examination. This can impact negatively upon their conduct and demeanour in the hearing room and to their exclusion and disadvantage. … 14. When deciding whether to make appropriate directions or orders to facilitate participation in Employment Tribunal proceedings regard may be had in particular to:• the impact of any actual or perceived or potential intimidation of a party or witness

• whether the party or witness has or may have a mental disability or other mental health condition …

• the nature and extent of the information before the tribunal (including any medical or other evidence)

• the issues arising in the proceedings

• whether a matter is contentious

• any questions which the tribunal will put (or cause to be put) to a witness …

• the views of the vulnerable party or witness …” Conclusions – fair hearing

[285]We were satisfied that we had been able to give the claimant a fair hearing. The ground rules were designed to avoid disadvantages that the claimant would experience as a person with a mental health disability. They were clearly agreed at the start of the hearing, with full input from the claimant herself. Conclusions – LVH disability

[286]The first issue in the list is whether the claimant was disabled with the impairment of hypertension and left ventricle hypertrophy.

[287]This issue is peripheral to the claim. If it makes any difference at all, it is to the strength of the connection between the claimant’s disabilities and any stress caused by the alleged conduct or treatment. That connection already exists: it is acknowledged that the claimant’s mental health, IBS and GERD were already aggravated by stress.

[288]It is therefore proportionate to keep the reasons very short.

[289]The claimant took medication to reduce the risk of a cerebro-vascular accident, or stroke.

[290]The first issue is: if the claimant did not take her medication, was the claimant’s hypertension or LVH likely to have a long-term substantial adverse effect on her ability to carry out normal day-to-day activities?

[291]It is important to be clear about what the claimant’s case is here. She is not saying that her LVH actually did affect her ability to carry out normal day-to-day activities. Nor is she saying that her ability to carry out day-to-day activities would have been adversely affected simply by her ceasing to take her medication. There is in any case no medical evidence to say that this could have been the effect.

[292]Her case is that, without taking her medication, she could well have had a stroke and, if that happened to her, day-to-day activities would suddenly become much more difficult because of the effects of the stroke.

[293]In our view, the claimant’s case is based on a mistaken understanding of the effect of an impairment. We must imagine a world in which the claimant did not take her medication and then deduce the likely effect of the claimant’s hypertension and LVH. The claimant, in the same imagined scenario, is asking us to deduce the effect of a different impairment, namely reduced brain and nerve function following a stroke. The likelihood that the claimant might acquire a different impairment is not the same as the likelihood of her existing impairment starting to affect her ability to carry out normal day-to-day activities.

[294]In any case, there is no medical evidence about the difference that her medication made to the magnitude of the risk of a stroke. Without such evidence, we cannot say that the claimant “could well” have a stroke if she did not take her medication.

[295]The claimant’s hypertension and LVH are not, therefore, to be treated as having adversely affected her ability to carry out normal day-to-day activities at the relevant time. Those impairments did not amount to a disability within the meaning of section 6. Conclusions – direct discrimination

[296]Miss Mallett treated the claimant less favourably than she treated the named comparators. The claimant was moved to a different team and they were not. This does not mean that Mrs Sherlock was a worse manager than Miss Underwood. Others in the claimant’s position might have welcomed Mrs Sherlock’s experience of supporting colleagues with disabilities. But that does not matter. The claimant perceived the treatment to be less favourable than the treatment of her colleagues. In our view, that perception was reasonable. In the early stages of the lockdown, as explained more fully in our paragraph 83, the claimant had good reason to think that it was better for her to stay than to move.

[297]The claimant’s circumstances were, however, materially different from those of her comparators. The material difference was that Miss Underwood was not struggling to manage the claimant’s colleagues, whereas she was struggling to manage the claimant. We do not want the claimant to misinterpret our finding as an attribution of blame. All we need consider is what Miss Underwood was subjectively experienced and reported to Miss Mallett. Her circumstances therefore were different from theirs and that means that they cannot be compared under section 23 of EqA.

[298]In any case, we found (at paragraph 84) that the reason why Miss Mallett moved the claimant to Mrs Sherlock’s team was not the fact that she had IBS, GERD or mental health disabilities. The decision was fully explained by the fact that Miss Underwood was struggling to manage the claimant.

[299]The claimant’s case does not improve if one imagines how a hypothetical comparator would have been treated. The circumstances of the hypothetical comparator would have to include the claimant’s abilities, including the amount of support she required. They would also have to include the effect that the claimant was having on Miss Underwood’s ability to manage her. In those circumstances, Miss Mallett would have moved such a person even if they were not disabled with IDS, GERD, depression or anxiety.

[300]The complaint of direct discrimination therefore fails. Conclusions – discrimination arising from disability Unfavourable treatment

[301]Miss Mallett treated the claimant unfavourably by moving her to Mrs Sherlock’s team. The claimant understood the team move to put her at a disadvantage. Taking into account the context (paragraph 83), that understanding was reasonable. Because of something

[302]As we have found, the reason why Miss Mallett moved the claimant to Mrs Sherlock’s team was that Miss Underwood had reported that she was struggling to manage the claimant. Arising in consequence of the claimant’s disabilities

[303]There were a number of causal connections between the claimant’s disabilities and Miss Underwood’s belief that she could no longer manage the claimant. For example: 303.1. The claimant experienced brain fog and impaired short-term memory. This caused her to omit to do things such as recording her work, and completing her WAP self-assessment. As a result, Miss Underwood needed to send the claimant reminders. 303.2. The claimant’s brain fog and short-term memory problems also caused the claimant to send multiple e-mails to Miss Underwood asking for support.

[304]Some of Miss Underwood’s difficulties with the claimant arose partly in consequence of the claimant’s disabilities and partly in consequence of other factors. Of particular potency were: 304.1. The “clean desk” reminders. Miss Underwood had to remind the claimant repeatedly to clear her desk. The immediate cause was the claimant’s decision that her desk did not need to be kept tidy. In one sense, this was a consequence of the claimant’s disabilities. She required a variable-height desk as an adjustment. As a result, she had a desk with settings that were bespoke to her needs. This caused the claimant to think that she did not need to clear her desk. That, by itself, does not explain how the claimant made the logical leap from having a special desk to thinking that she did not need to clear it. The claimant’s thinking was also shaped by factors that arose entirely independently of her disabilities. Such factors included the notion that nobody else could safely work at the desk whilst she was out of the office unless a full DSE assessment was done. Her thinking was also conditioned by an omission to consider what the consequences for colleagues’ morale might be if they had to tidy their own desks, but the claimant could leave things on hers. 304.2. The e-mail conversation on 12 March 2024. This was partly fuelled by the claimant’s anxiety. She was alarmed at the phrase “reasonable instruction” and took it to be a threat. Consequently, she replied defensively and accompanied it with behaviour in the open plan office that Miss Underwood found to be oppressive. The underlying issue behind this dysfunctional conversation, however, was not a consequence of the claimant’s disabilities at all. It was a difference of opinion over the proper limits of access to a trade union representative’s e-mail folders. Miss Underwood was trying to implement new working arrangements in response to the pandemic. The claimant had a point of view about why this particular measure was not appropriate in her case. As it happens, we tend to think that the claimant’s view was not only legitimate, but right. Importantly, for her claim, though, it did not arise in consequence of her disabilities.

[305]Some of the challenges that the claimant presented to Miss Underwood were wholly unconnected to the claimant’s disabilities. One striking example was her SAR concerning the PCS. This generated significant extra work for Miss Underwood. This was closely followed by the claimant bypassing Miss Underwood over the question of whether colleagues should take laptops home.

[306]Taking all of these causes together, we find that Miss Mallett’s reason for moving the claimant to Mrs Sherlock’s team did arise in consequence of the claimant’s disability, but only loosely so. Justification

[307]Against that background, we now have to consider whether moving the claimant to a different team was a proportionate means of achieving a legitimate aim. The aims

[308]The respondent relies on three aims: “(i) allocating appropriate line management in order to best support both staff members and managers; (ii) ensuring that the claimant reported into a manager who was able to give the claimant the extra support she needed; and (iii) moving staff members within teams regularly to ensure that numbers and a mixture of grades were spread appropriately across teams.” Aim (iii)

[309]We can deal with the third aim briskly. Whilst the aim was plainly legitimate, there is no evidence that moving the claimant to a different team was a means of achieving it. There is nothing to tell us about any shortage of Higher Officers in Ms Sherlock’s team, or surplus of Higher Officers in Miss Underwood’s team, or shortage of any lower-grade officers in Miss Underwood’s team that needed to be addressed by the claimant making way for them. For all we know, the aim could have been achieved equally well by leaving the claimant where she was. Aims (i) and (ii) are legitimate

[310]We did not understand the claimant to be arguing that Aims (i) and (ii) were illegitimate. In any case, our assessment of both aims is that they were not only legitimate, but important. It is hard for an organisation to function without effective line management relationships. This is particularly likely to be the case where the organisation has disabled employees who need multiple adjustments to the way they work. An additional layer of complexity is added to the relationship where the employee devotes a significant proportion of their working time to discharging their trade union responsibilities. People are all different. Sometimes, a manager and their team member just do not get on. Relationships can also change over time. It is the responsibility of more senior members to keep an eye on relationships within their reporting lines to and achieve a good fit if they can. Proportionality

[311]At this stage of the analysis, we are required to balance the importance of Aims (i) and (ii) against the discriminatory impact of the unfavourable treatment.

[312]We started by examining whether the aims could have been achieved in other ways, so as to avoid the need to treat the claimant unfavourably.

[313]In our view, there were no realistic alternatives. Here are the alternatives we considered, together with our reasons for rejecting them. 313.1. Disbanding Miss Underwood’s team would not have helped. It would have still have resulted in the claimant having a different line manager, which was one of the essential aspects of the team move that the claimant found to be unfavourable. 313.2. It was not realistic to provide additional support to Miss Underwood to manage the claimant. Miss Underwood had fixed working hours and was responsible for managing a whole team. The more of her working time that Miss Underwood was given to manage the claimant, the less time she would have to spend on the remaining aspects of her role. That would have been unfair on the remainder of the team. 313.3. Miss Mallett could have taken some of the responsibility out of Miss Underwood’s hands by dealing with some line management issues directly with the claimant. But it is unlikely that the claimant would have welcomed that intervention. The claimant already perceived Miss Mallett as somebody who had frightened and intimidated her following the October 2017 floor walk. On 26 November 2019, Miss Griffith had objected to Miss Mallett having any involvement in discussions about relaxation of the claimant’s targets.

[314]Weighing the importance of the aims with the loose discriminatory impact of the unfavourable treatment, we find that it was a proportionate means of achieving Aims (i) and (ii).

[315]The respondent did not therefore discriminate against the claimant arising from her disability. Conclusions - indirect discrimination

[316]As the list of issues records, it is common ground that PCP1 existed, namely moving staff between teams, and that it was applied regardless of whether the staff members concerned were disabled with IBS, GERD and mental health. Group disadvantage

[317]The claimant has not established facts from which we could conclude any group disadvantage here. The logical pool for comparison is all those who would be affected, positively or negatively, by being moved from one team to another. The negative effect, if there was one, was consequent on the change and disruption that a team move would cause. Within the comparison pool, we must compare two groups. One group would be made up of people disabled with IBS, GERD or depression and anxiety, or a combination of those disabilities. For ease of reference, and no other purpose, we refer to this group as the “IBS+ group”. The other group (“the comparator group”) would consist of people who did not have those disabilities. The comparator group would have to include people with other disabilities, such as neuro-divergent disabilities, that made them struggle to cope with change. It would also include non-disabled people whose personal circumstances (such as bereavement or caring responsibilities) made stability at work particularly important.

[318]To find a particular disadvantage, the tribunal would ordinarily need to find that the IBS+ group would be over-represented amongst the people who would be disadvantaged by moving teams. There is no evidence from which we could conclude that the IBS+ group would be present in the disadvantaged group in any greater proportion than their numbers in the respondent’s workforce as a whole.

[319]It is also possible that there might be a particular disadvantage if the IBS+ group was under-represented in the group of people who would be beneficially affected by being moved. But there is no evidence of that either. There is also evidence to contradict it. The claimant herself at times considered it to be to her advantage to move from one line manager to another.

[320]We do not therefore consider that section 19(2)(b) is satisfied. Justification

[321]In case we are wrong in our approach to group disadvantage, we have gone on to consider whether PCP1 was a proportionate means of achieving the three legitimate aims.

[322]For the reasons given above, we have rejected Aim (iii) and found PCP1 to be a means of achieving Aims (i) and (ii).

[323]When considering proportionality, our task is made more difficult by the fact that this issue is contingent on there subsequently being held to have been a group disadvantage, contrary to our finding that none existed. We have to anticipate what particular disadvantage may be held to have been caused by PCP1, and then assess its magnitude.

[324]Even in the event that PCP1 were held to have a widely disparate impact, we would nonetheless hold that it was proportionate. Aims (i) and (ii) were important for the reasons which we have stated. They could not have been achieved in any other practicable way.

[325]The respondent did not therefore indirectly discriminate against the claimant. Conclusions – duty to make adjustments PCP1 – requirement to move teams

[326]The requirement to move to another team put the claimant at a disadvantage in comparison with persons who are not disabled. Unlike in section 19, the claimant need only compare the effect of the PCP on her with the effect it would have on non-disabled people generally. Her disabilities were aggravated by stress. As we explained in paragraph 83, the claimant found the stress of a move more difficult to bear than a person who was not disabled.

[327]In our view, the disadvantage was more than minor or trivial. Knowledge of disadvantage

[328]The respondent has proved to us that it did not know that the claimant was likely to be placed at a substantial disadvantage by PCP1. We are also satisfied that the respondent could not reasonably have been expected to know of the likely disadvantage.

[329]This is for a number of reasons: 329.1. It would have appeared to the respondent that the claimant positively welcomed a change of line manager where her relationship with her existing line manager was becoming strained. The claimant had a history of managed moves between teams and between Business Units. 329.2. The claimant had recently updated her WAP. The self-assessment section of that form described her barriers to work in considerable detail. There was not hint that the claimant needed continuity of line management or that she would be disadvantaged by moving teams.

[330]PCP1 did not therefore place the respondent under any duty to make Step - leaving the claimant with Miss Underwood

[331]In any case we would find that it was not reasonable for the respondent to have to take the step of leaving the claimant in Miss Underwood’s team. We have come to this view for the same reasons as we have given for finding that the move to Mrs Sherlock’s team was proportionate: see our paragraph 313. PCP2 – meetings and calls

[332]The respondent required the claimant as part of her role (PCP2) to participate in meetings and calls. Substantial disadvantage – recollection and upset

[333]The claimant found it harder to recollect meetings than a non-disabled person would find it. She experienced brain fog and short-term memory loss. Her anxiety was heightened if a manager asserted that something had been said or done in a meeting, where that version conflicted with her own memory. She could not be sure who was right and who was wrong. Because of her anxiety, and her tendency to become upset during some 1:1 meetings, she also had a greater need of emotional support during those meetings than a non-disabled person would have.

[334]These disadvantages were, in our view, more than minor or trivial.

[335]The respondent knew of these disadvantages from the claimant’s WAP. No substantial disadvantage – oral communication

[336]The claimant was not, we find, at any disadvantage when topics were raised orally during a meeting, or when information was given to her orally at a meeting for the first time. Put another way, she had no greater need of a pre-meeting agenda than a non-disabled person. If there was any disadvantage, it was no more than minor or trivial. We reached this conclusion based on the selfassessment section of the claimant’s WAP form. It made no mention of such a disadvantage.

[337]If there was any such disadvantage, the respondent did not know about it until April 2021, and could not reasonably have been expected to know about it until then. The respondent was reasonably entitled to rely on the claimant’s occupational health reports and WAP. Time limit for failure to make adjustments on 18 March 2020

[338]If there was a breach of the duty to make adjustments at the meeting on 18 March 2020, the claimant was three days too late in presenting her claim for it. In our view it is just and equitable to extend the time limit by that short period. The respondent could not identify any disadvantage caused by the delay. Step (a): agenda

[339]The claimant says that the respondent should have taken the step of providing an agenda in advance of four meetings, each on a specified date, the latest being in December 2020. In our view it was not reasonable for the respondent to have to provide an agenda for any of those meetings. An agenda, or its equivalent, could not have helped to avoid the disadvantage in recollection and emotional upset. The step would only have served a purpose if there was a substantial disadvantage in processing information learned orally at the meeting. We have found that there was no such disadvantage. Step (b): “buddy”

[340]In our view, it was reasonable for the respondent to have to provide the claimant with an opportunity to have a companion, or “buddy”, at a meeting, including a meeting that took place remotely. The duty extended to: 340.1. Permitting the claimant to bring a companion to a meeting if she wished to do so; and 340.2. Adjourning a meeting where the claimant was unaccompanied if she asked for an adjournment to seek a companion.

[341]The respondent took the first of these steps at all four meetings. The claimant’s WAP stated, “ability to be accompanied by a rep at meetings”. When the claimant asked to be accompanied by Miss Griffith at her next 1:1 meeting in November 2019, Miss Underwood agreed and Miss Griffith attended the next meeting. The claimant’s requests were never refused. The respondent did not have a chance to take the second step, because the claimant never asked for a meeting to be adjourned to fetch a companion.

[342]It was not reasonable for the respondent to have to ensure that the claimant was in fact accompanied at each meeting. The claimant’s WAP did not go that far. Nor, at any WAP review prior to April 2021 did the claimant ever suggest that it should. The claimant had many 1:1 meetings with Miss Underwood, and then with Mrs Sherlock, without suggesting that she should have a companion. Mrs Sherlock checked that the claimant was “OK to continue” and the claimant confirmed that she was. She positively agreed with Mrs Sherlock to continue the existing arrangements for meetings. PCP3 - complaints

[343]Part of the role of a Higher Officer Compliance Officer was (PCP3) to work on complaints made by taxpayers. Some complaints were about colleagues’ work; others were about the officer’s own work. The Higher Officer was required to address both.

[344]That PCP put the claimant at a disadvantage in comparison with non-disabled people. The disadvantage was twofold: 344.1. The claimant found it harder to work on her own complaints than a nondisabled colleague would find it to work on theirs. There would be a degree of stress for anybody having to deal with complaints about themselves by a member of the public. The complaint handler has to explain what they did correctly and own up to what they have done wrong. Complaints work also added to her own workload, which further increased her stress levels. Having disabilities that were aggravated by stress made her less able to cope with this work than a person without any disability. 344.2. The claimant was also at greater risk than a non-disabled person of having a complaint made about her in the first place. Her brain fog and shortterm memory difficulties impaired her ability to adapt to the new systemgenerated referrals when SURF was introduced. That difficulty made it more likely that the claimant would make mistakes, which would then increase the risk of a complaint.

[345]Both these disadvantage were more than minor or trivial. Date of knowledge

[346]The respondent seeks to prove that it did not know that the claimant was likely to be placed at a substantial disadvantage by PCP3, and could not reasonably have been expected to know of that likely disadvantage.

[347]For the period before 26 November 2020, the respondent has successfully discharged that burden. The claimant did not raise any concern about complaints work disadvantaging her before that date. She and Mrs Sherlock had had regular 1:1 meetings over the summer, including a WAP review meeting. They had agreed adjustments informally in addition to the more structured WAP process. The claimant had not mentioned this difficulty in the self-assessment part of the WAP or at any other time.

[348]The respondent could reasonably have been expected to know of the substantial disadvantage from 26 November 2020. It was on this day that the claimant e-mailed Mrs Sherlock to say that the complaints work was “exacerbating” the effects of her disabilities.

[349]The respondent was under a duty to take steps from 26 November 2020, but no earlier. Step – removing all complaints work

[350]Mrs Sherlock immediately took the step of temporarily pausing the claimant’s general complaints referrals. The moratorium was for approximately a month at a time, subject to regular review. This was, in our view, all that the duty to make adjustments required. It was not reasonable for the respondent to have to remove a part of the claimant’s role indefinitely. They did not know how long the claimant’s disadvantage was going to last.

[351]Nor was it reasonable, in our view, for the respondent to have to stop asking the claimant to address complaints about her own work. In coming to this conclusion, we have kept in mind that this step had the potential to avoid the disadvantageous effect of PCP3 very considerably. It was the complaints about the claimant’s own work, in particular, that caused the claimant the most anxiety. But that potential benefit has to be balanced against other factors. These include the impact that removing that work would have had on the claimant’s colleagues. If the claimant did not address complaints about her own work, someone else would have to do it. That would be time-consuming. The colleague would not have the detailed knowledge of the case that the claimant had had. It would take them longer to work out why the claimant had made the decisions that had vexed the aggrieved taxpayer. It is also relevant that, by 26 November 2020, the respondent had taken extensive steps to reduce the claimant’s overall workload and the more difficult components of it. The number of section 9A cases were still below what higher officer colleagues were expected to handle. The nonspecific complaints were removed from her, giving her additional time to work on the complaints that were specific to her. PCP5 – dealing with grievances over a period of months Disadvantage

[352]The length of time it took for the respondent to deal with the claimant’s grievance put the claimant at a substantial disadvantage in comparison with nondisabled persons. Again, the nature of the disadvantage was the stress that a protracted grievance process would cause to anybody, and the claimant’s impaired ability to cope with that stress in comparison with a person without a disability. Date of knowledge

[353]The respondent knew that the claimant was likely to be placed at a substantial disadvantage by PCP5 from 26 July 2021 onwards. This was when the claimant asked Ms Johnson to “wrap up” the investigation “to mitigate the exacerbation the length of time and delay causes”. We are satisfied, however, that, before that date, the respondent neither knew of any likely substantial disadvantage, nor could reasonably have been expected to know of the likely disadvantage. In coming to this view, we have taken account of the claimant’s previous experience of an over-long grievance process in 2016. The respondent could reasonably have been expected to know that the claimant had found that one too long and might suffer if the next one was not resolved promptly. But a more reliable guide for the respondent about any likely disadvantage in 2021 was how the claimant was presenting at that time. The respondent could not be reasonably expected to think anything other than that the claimant was happy to put the grievance on the back burner. At the end of 2020 she declined Miss Tumilty’s offer of a twostage grievance meeting (one without the personal file, and a further one with it). She did not inform Miss Tumilty when she returned to work from sick leave, and did not respond to Miss Tumilty’s efforts to restart the grievance process. When Ms Johnson took over, the claimant’s priorities appeared to be ensure that her second grievance was incorporated into the first one, and to be paid for the time it took her to look for documents. At no stage prior to 26 July 2021 had the claimant suggested that the grievance investigation needed to take place more quickly.

[354]There was therefore no duty to take any step to speed up the grievance prior to 26 July 2021. Step – speeding up the grievance process

[355]In case we are wrong about the respondent’s date of knowledge, we have examined the whole period of 14 months from the claimant raising her grievance to Miss Hirst informing the claimant of the outcome.

[356]It was not reasonable for the respondent to have to hold a grievance meeting before 4 June 2021. The delay up to that point was almost entirely due to factors outside the respondent’s control.

[357]It is the claimant’s case that the reason for the first grievance meeting being cancelled was the respondent’s failure to provide her with her personal file. The claimant and Miss Griffith may well have attended that meeting had this been done. Nevertheless, the overwhelming cause of the meeting being cancelled was the stance taken by the claimant and Miss Griffith. The root cause of the omission to provide them with the personal file that Miss Griffith had made a SAR. When it was clear that the claimant already had all the information in her personal file, Miss Griffith and the claimant continued to insist on relatively unimportant details of how the personal file was presented to them. They then rejected Miss Tumilty’s offer of a two-stage grievance meeting.

[358]The lack of a meeting between 22 December 2020 and 28 April 2021 was due to the claimant’s sickness absence and her omission to respond to Miss Tumilty’s attempts to restart the process. Delays in the month of May were caused by Miss Tumilty’s expectation of surgery and Ms Johnson having to take over the investigation. Moreover, arranging a meeting during the 4 months to 28 April 2021 would only have had a slim prospect of avoiding the disadvantage caused by PCP5. It was not a priority for the claimant to move her grievance forward during that period. It is unlikely that the claimant would have attended a grievance meeting before June 2021, even if a date had been offered to her.

[359]It was not reasonable for Ms Johnson to have to produce her investigation report before 4 August 2021, even in its truncated form. From June 2021, she prioritised the investigation above the day-to-day requirements of her role. Ms Johnson had a large number of allegations to consider. Delays between 4 June 2021 and 26 July 2021 were caused mainly by the claimant’s request for paid time to find documents, her request for adjustments by answering questions in writing, and her introduction of further allegations. Having received the claimant’s request for an expedited report, Ms Johnson cannot be criticised for taking the next 8 days to complete it.

[360]It was not reasonable for Ms Johnson to have to produce anything more than a truncated report in the summer of 2021. The claimant had asked for the report to be expedited in the same e-mail that she had made further allegations and stated that she did not have time to answer Ms Johnson’s questions.

[361]Having received Ms Johnson’s report, Miss Hirst could not reasonably have been expected to have delivered her grievance outcome before remitting the investigation back to Ms Johnson. This is because she and the claimant agreed that this step was necessary. It was not reasonable for Ms Johnson to devote the same proportion of her working hours to her remitted investigation as she had put in the first time around. Her usual role had been significantly disrupted by the first investigation. To give the second investigation the same level of priority would have resulted in further neglect of her role.

[362]It was not, in short, reasonable for the respondent to have to deliver the grievance outcome before December 2021. PCP6 – prohibition on recording meetings and calls

[363]Before 22 April 2021, the claimant was not placed at any significant disadvantage by the prohibition on recording meetings and calls. Until then, the claimant never thought of making an audio recording. The idea came to her following the disagreement between her and Mrs Sherlock over what had been said at the April WAP review meeting. The claimant had left that meeting believing that Mrs Sherlock had agreed to provide an agenda and post-notes for all meetings. When Mrs Sherlock maintained on 22 April 2021 that this had not been agreed during the meeting, the claimant doubted her own memory and felt anxious. It was at that point that the disadvantage became more than minor or trivial.

[364]The respondent discovered the likelihood of the claimant being disadvantaged by the rule in May 2021, the claimant’s HRACC1 investigation meeting with Miss Cowell. Until May 2021, the respondent could not reasonably have been expected to know of the likely disadvantage. Throughout her WAP discussions, she had never asked for the prohibition on recordings to be relaxed, or stated that it caused any problem for her.

[365]In case it is thought that we have taken an overly restrictive approach to the issues, we have also considered the disadvantage caused by PCP2 (meetings). Although the claimant never thought to make any audio recordings before April 2022, the opportunity to make such a recording would have been one means of avoiding her being disadvantaged in her recollection of meetings. On that analysis, the respondent knew of the disadvantage prior to May 2021 as well. Step – allowing partial recording

[366]Even when the whole period is taken into account, however, it was not reasonable for the respondent to have to take the step for which the claimant contends. This is because: 366.1. It is worth remembering exactly what the claimant wanted. She never sought to record what anyone else was saying in a meeting. She has consistently acknowledged that it would be unreasonable for the respondent to have to allow that. Her case is that the respondent should have allowed her to record only the parts of the conversation where she herself was speaking. 366.2. The facility to record a conversation intermittently would not have avoided the PCP2 or PCP5 disadvantages to any significant extent. At best, it would give her a partial record of what had been said at the meeting. Importantly, it would have been unlikely to have avoided the precise disadvantage that the claimant experienced on 22 April 2021 when she read Mrs Sherlock’s e-mail. Had the respondent allowed her to record her own speech during the WAP review meeting, the claimant would still have had no audio-recording of Mrs Sherlock agreeing to anything. Even if Mrs Sherlock had promised that the claimant could have agendas and post-notes going forward, the claimant would have no record of it. 366.3. Making the claimant’s proposed adjustment would create obvious problems. First, the claimant’s audio record of the meeting would not make much sense. It would be a sequence of recorded utterances from the claimant. Without knowing what anybody else said in between, it would be hard for the listener to understand what the claimant meant, or to know how the conversation had really gone. Second, the claimant would have stop and re-start the recording function each time someone else wanted to speak. That would severely disrupt the flow of conversation. Meetings would become stilted and less likely to be supportive. 366.4. The respondent took other steps which could have avoided the same disadvantage if the claimant had agreed to them. One of these steps was for the claimant and Mrs Sherlock each to bring a companion to the meeting. Another was the offer of a rota for note-taking. PCP7 – attitudinal barriers No PCP

[367]There is a short answer to the claim based on PCP7. The PCP did not exist. The respondent did not have the attitudinal barriers that the claimant thought they had. The culture within AAS was one of removing barriers, not putting them up. This is consistent with the high representation of people with disabilities at multiple levels within AAS. The culture was also reflected in the WAP system and the way it was implemented in practice. Miss Underwood, Mrs Sherlock and Miss Mallett were trying to help the claimant as much as they reasonably could. This is evident in the claimant’s many WAP adjustments, and the additional adjustments that were agreed informally by Mrs Sherlock outside the WAP process.

[368]Even if there had been shortcomings in individual managers’ approach to the claimant’s adjustments at particular times, and their specific decisions could properly be characterised as “attitudinal barriers to the claimant as a disabled person”, those decisions would not amount in law to a provision, criterion or practice. They would not be capable of application to anybody else. It would therefore be impossible to assess how a non-disabled person could have been affected by it. Step - transferring the claimant to another Directorate

[369]For completeness, we have considered whether it was reasonable for the respondent to have to take the step of transferring the claimant to a different Directorate in order to avoid the disadvantage allegedly caused by PCP7.

[370]Our conclusion is that it would not have been reasonable for the respondent to have to take that step. Here are our reasons: 370.1. It was easier to move a Civil Servant within a Directorate (for example, by moving them to a different Business Unit) than it was to move them from one Directorate to another. This reality was reflected in the respondent’s Workplace Adjustment Policy, which provided that a Priority Move outside the Directorate was exceptional, and to considered only when all other options within the current Directorate had been explored. 370.2. It was not entirely clear what the claimant was seeking. The claimant’s requests were inconsistent. Her grievance asked for a move to another Business Unit, which would have been understood to mean a different Business Unit within the same Directorate. Ms Bird’s report of 22 December 2020 relayed her request for a new “department” or “role”. When Mrs Sherlock explored this with her in January 2021, the claimant clarified that she wanted to work in a new Business Unit. Her HRACC1 form in April 2021 asked for a change of Directorate, and so did the claimant’s e-mail to Mrs Sherlock on 12 April 2021. That was clouded by Miss Griffith’s e-mail of 27 April 2021 asking Miss Mallett for a transfer away from “your section”. Miss Mallett was responsible for a Business Unit, not a Directorate. 370.3. A transfer out of the Directorate would come at a cost. The claimant would have to be re-trained on a different tax regime. The respondent had already invested in re-training the claimant in December 2016 when she moved from VAT to income tax. 370.4. More fundamentally, a move to a different Directorate would have been unlikely to have avoided the disadvantage to which PCP7 allegedly put her. The claimant had worked in different teams and different Business Units. In each setting she had genuinely perceived managers to have attitudinal barriers towards her as a disabled person. Whichever Directorate the claimant worked in, it was almost inevitable that the claimant would want adjustments that went beyond what the respondent could reasonably be expected to provide, and that this gap would have been interpreted by the claimant as an attitudinal barrier. Auxiliary aid - Dictaphone

[371]The final requirement of the duty to make adjustments is said to have been the provision of a Dictaphone.

[372]A Dictaphone would have been an auxiliary aid.

[373]The step which the claimant says the respondent should have taken was to provide “a Dictaphone for use in between meetings and telephone calls as a way of recording her thoughts in a similar way to using a notepad”. No disadvantage

[374]There is no evidence from which we could conclude that the absence of a Dictaphone placed the claimant at a substantial disadvantage between calls and meetings. The claimant was, of course, at greater need than a non-disabled person of being able to record her thoughts promptly after a meeting. This was because of her brain fog and impaired short-term memory. But there is no evidence that the claimant had any difficulty at all in writing or typing. She could have used a pen and paper, or typed notes into her laptop. We had no evidence that this exercise would be significantly more time-consuming than the process of dictating voice notes, storing them and converting them (if necessary) into text. If the claimant was under any disadvantage at all without a Dictaphone, it was minor or trivial. Knowledge

[375]If the claimant was likely to be placed at a substantial disadvantage without a Dictaphone between meetings, the respondent could not reasonably have been expected to know about it. The respondent was reasonably entitled to rely on the claimant to bring disadvantages such as these to managers’ attention. She did not mention Dictaphones in her WAP self-assessment, or in any WAP reviews or 1:1 meetings. When she referred to a Dictaphone following her HRACC1 investigation meeting with Ms Cowell, it was in an entirely different context and appeared to refer to an unrelated disadvantage. To Ms Cowell and Miss Mallett, the disadvantage appeared to flow from the restrictions on audio-recording the meetings themselves. The claimant never suggested that she needed to use her voice to record her thoughts afterwards.

[376]There was therefore no duty on the respondent to have to take the step of providing a Dictaphone. Conclusions - harassment Harassment 1 – the e-mail of 28 April 2021

[377]Miss Mallett undoubtedly engaged in conduct by sending the claimant an email on 28 April 2021. The act of sending an e-mail, in itself, was not unwanted. Indeed, through, Miss Griffith, the claimant had been pressing for a response to her transfer request. Unwanted conduct

[378]The claimant says that the e-mail was unwanted in four respects, which are listed (a) to (d) in the list of issues. Each corresponds to an identifiable passage in the e-mail. We marked those corresponding passages (a) to (d) at paragraph 182.

[379]At this stage of the analysis we are not concerned with whether the claimant’s characterisation of the e-mail in the list of issues was correct or not. We are satisfied that the claimant took great exception to the four impugned passages at the time, and that Miss Mallett engaged in unwanted conduct by including them. Related to disability

[380]Passage (a) was related to the claimant’s disabilities. It made explicit reference to the claimant’s “condition” and also highlighted the claimant’s difficulty with the SURF referrals, which she described in the e-mail as “Administrative Officer” work, for which Mrs Sherlock had agreed to make

[381]Passage (b) was related to the claimant’s disabilities in the sense that the “issue” with the previous managers included “dissatisfaction with how that manager has tried to support you”.

[382]Passage (c) was related to the claimant’s disabilities, but not in the way the claimant contends it was. Her case is based on the phrase “good, competent managers” in isolation. The claimant says that the phrase implied that the claimant was not good and competent. No reasonable reader would understand it to carry that implication.

[383]There was a different connection between Passage (c) and the claimant’s disabilities. The phrase had to be understood as part of the broader point that Miss Mallett was making. It only really made sense when read alongside Passage (b). When read together, there was a sufficient connection to make the passages related to the claimant’s disabilities.

[384]Like Passage (c), Passage (d) was related to the claimant’s disabilities in a way that was different from the claimant’s own understanding. By saying that Mrs Sherlock was “not a problem”, she was not implying that the claimant herself was a problem. The implication of Passage (d) was that claimant was perceiving a problem that did not really exist. The claimant’s stance was that Mrs Sherlock was not supporting her and was refusing to make basic adjustments. Miss Mallett’s point was that Mrs Sherlock was open to making workable adjustments and was committed to providing the claimant with support, and the sooner the claimant realised it, the better the working relationship would become. Proscribed purpose

[385]We have found at paragraph 184 that Miss Mallett’s purpose in sending, or wording, the e-mail was not one of the purposes listed in section 26 of EqA. Proscribed effect

[386]The claimant found these four passages of Miss Mallett’s e-mail to be condescending and aimed at damaging her health. In the language of section 26 EqA, we take this to mean that she perceived the unwanted conduct to violate her dignity or create a humiliating or offensive environment for her: see our paragraphs 183 and 184.

[387]It was not reasonable for the claimant to perceive these passages of the email to have that effect. Dealing with each in turn: 387.1. The claimant took Passage(a) to imply that the claimant could not work at Higher Officer level. If that is what Passage (a) had implied, it might have been reasonable for the claimant to find this part of the e-mail humiliating. After all, the claimant had previously demonstrated the skills and experience required to handle the full range of responsibilities that a Higher Officer Compliance Officer had. Her perspective was that it was only the volume of that work, as opposed to its complexity, that had to be reduced. Her shrunken workload was not a reflection on her aptitude; it was merely as an adjustment to take account of her disabilities. 387.2. But Passage (a) did not carry the implication that the claimant thought it did. The point that Miss Mallett was making was that a move to a different Business Unit would not necessarily avoid the disadvantage that the claimant was saying necessitated the move, and could actually make the disadvantage worse. Miss Mallett could not ignore the fact that the claimant already required very substantial adjustments in order to carry out her role, and other Business Units could not necessarily afford to be so flexible. This was not a criticism of the quality or value of the claimant's work, or her skills and experience. 387.3. The claimant did not see Miss Mallett’s point for what it was, partly because she believed that her WAP would automatically follow her to the new Business Unit if she moved. Her view was that the claimant’s current level of adjustments was irrelevant to whether she should move or stay. What the claimant did not appreciate was that there were parts of her WAP that were unique to AAS and would have to be renegotiated in any new Business Unit. These included important adjustments such as the reduction in the claimant’s section 9A caseload. 387.4. Nor was the claimant’s interpretation of Passage

(b) a reasonable understanding. Miss Mallett was trying to explain honestly to the claimant why she believed a move to a different Business Unit would not be the solution to the claimant’s difficulties. On an objective reading, it was clear that this is what Miss Mallett was trying to do. Mrs Sherlock and Miss Mallett were not the first managers whom the claimant had accused of giving her inadequate support. There was a pattern of disputes over management support going back to 2014. There had been numerous changes of management during that time. The pattern would be likely to repeat itself if the current dispute led to the claimant having yet another manager. The list of names of the different managers was not gratuitous. It was included so that the claimant could see the basis of Miss Mallett’s belief that the pattern was there. 387.5. Passage

(d) was, to an objective reader, telling the claimant that she was wrong to think that it was “a problem” for her to have Mrs Sherlock as a manager. It was also making the important point that, based on the previous pattern, there would be times when the claimant thought she was being inadequately supported, whoever her manager was. No reasonable reader would think that Miss Mallett was saying that the claimant herself was a problem.

[388]Miss Mallett’s e-mail was not harassment, and the complaint under Harassment 1 is not well founded. Harassment 2 – discussion of PCS SAR

[389]We can deal with Harassment 2 in shorter order.

[390]The unwanted conduct was Miss Underwood’s discussion of the PCS SAR with Miss Mallett. We found at paragraph 70 that the discussion happened before 13 March 2020. The discussion of the PCS SAR was a different sort of act from the other allegations of discrimination and harassment. It was an isolated act that could not be viewed as part of an ongoing state of affairs. The last possible day for presenting the Harassment 2 complaint was therefore 12 June 2020. The time limit was unaffected by early conciliation, because the claimant did not notify ACAS of her prospective claim until 20 June 2020.

[391]The claimant’s first claim was presented on 24 June 2020. This was only twelve days after the time limit expired, but that further period is not just and equitable. This is because Harassment 2 would inevitably fail on its merits. As we also found at paragraph 70, the discussion of the PCS SAR was completely unrelated to the claimant’s disability. The claimant’s case is that she was upset when she found out about the discussion, but that does not begin to connect the unwanted conduct with her protected characteristic. In any case, it would not be reasonable for the claimant to perceive that the conduct had any of the effects mentioned in section 26 of EqA. She had used her data protection rights against her employer to advance her own internal trade union dispute. This generated substantial extra work for her line manager. She could hardly complain if her line manager talked to her own manager about how she was going to find the time to do the work. Harassment 3 – HRACC1

[392]Before deciding on Harassment 3, it is important to be clear about what the unwanted conduct was. The claimant’s complaint is not about Miss Mallett’s decision to recuse herself from the HRACC1 investigation. That decision could not sensibly be criticised: the claimant had already raised a grievance about Miss Mallett and her HRACC1 report was partly about the need for a transfer, which Miss Mallett had just refused. What Harassment 3 is about is Miss Mallett’s omission to obtain the claimant’s consent before forwarding that investigation to another manager.

[393]The claimant would inevitably have consented had she been asked. Nevertheless, Miss Mallett’s omission was unwanted. The claimant had a right to be asked first and she did not want that right to be bypassed.

[394]Where this part of the claim falls down is on the issue of whether the absence of consent was related to the claimant’s disability. There was no connection at all.

[395]In any case, the claimant could not reasonably perceive that the omission to seek her consent had the effect of violating her dignity or creating one of the kinds of environment described in section 26 of EqA. The context is important. Consent was a formality: the claimant would never have refused. She did not want Miss Mallett to investigate her HRACC1. Just as importantly, her trade union representative Miss Griffith was notified in advance of Miss Mallett’s proposal to hand the HRACC1 to another manager. This was at 3.40pm on 27 April 2021, when Miss Griffith was at work. Miss Griffith did not raise any objection.

[396]The complaint of harassment therefore fails. Conclusions - victimisation

[397]It is undisputed that the claimant did the six protected acts identified in the list of issues.

[398]Our task is to examine the alleged detriments, which we do, one by one. Detriment 1 – questions about claim Time limit

[399]The first allegation of detriment is the conduct of Mrs Sherlock at the performance review meeting on 21 September 2020. The claimant’s second claim form was presented three months and two days after this meeting. We must therefore decide whether the further period of two days is just and equitable. Despite being given the opportunity to do so, the respondent did not identify any disadvantage caused by the two-day delay: indeed the respondent did not make any submissions about the statutory time limit for this complaint at all. In those circumstances, it is just and equitable to extend the time limit by two days and consider the complaint on its merits. Merits

[400]Mrs Sherlock asked the claimant questions about her tribunal claim. She did so, at least in part, because the claimant had presented her first claim to the tribunal.

[401]The claimant believed that these questions were detrimental to her.

[402]The allegation of Detriment 1 nonetheless fails. This is because no objective person could reasonably think that the claimant had been put to any disadvantage. Our reasons for coming to this view are: 402.1. We did not generally find the claimant’s subjective belief to be a reliable guide to whether something could be reasonably understood to be a detriment. See, for example, our findings at paragraphs 132 and 160. 402.2. Up to 21 September 2020, the working relationship between the claimant and Mrs Sherlock had been healthy and supportive. Mrs Sherlock had repeatedly gone out of her way to provide additional support to the claimant, beyond the considerable list of adjustments in the claimant’s WAP. Any reasonable person in the claimant’s position would have understood Mrs Sherlock’s intentions to have been to help the claimant, not to disadvantage her. 402.3. The context of the questions is important, too. The claimant’s welfare was one of the topics for discussion at the review meeting on 21 September 2020. Working arrangements were still affected by the pandemic. Everyone knew that there was a risk of isolation whilst people were working from home. That risk would be compounded for someone who was involved in litigation with their employer. Any reasonable person observing that meeting would have expected some questions about the support networks available to the claimant, including her trade union. Miss Griffith appears to have accepted the legitimacy of trying to find out if the claimant was adequately supported during her employment dispute. This would be the “duty of care” that Miss Griffith acknowledged in her e-mail (see paragraph 101). 402.4. The tribunal must try to imagine what an objective listener would have made of Mrs Sherlock’s actual questions to claimant. Mrs Sherlock was careful not to ask the claimant any questions about what advice the claimant had got from her trade union. As soon as she had established that the claimant had trade union advice, Mrs Sherlock’s follow-up was an offer of support, rather than any interrogation about what advice she had received. An objective listener would have found this significant. Detriment 2 – the claimant’s personal file

[403]Detriment 2 is said to have consisted of two detrimental refusals, one by Mr Brady and the other by Mrs Sherlock. Neither of them happened: 403.1. It is alleged that Mr Brady refused to provide the claimant with her personal file between 3 December and 24 December 2020. At no time during that period did Mr Brady refuse to provide anything. Mr Brady was responding to Miss Griffith’s escalation of the dispute over the claimant’s request for information. Even if his response could be interpreted as a refusal, it was nothing to do with any of the claimant’s protected acts. See our findings at paragraph 151.4. 403.2. Mrs Sherlock did not refuse to provide the claimant with her personal file either. Moreover, she acted as she did because she had been advised that the claimant had made a SAR, and not because the claimant had done any protected act. These findings are set out in more detail at paragraph 151.1, 151.2 and 151.3.

[404]If there was any detriment in the form of waiting for the claimant's express consent before providing the personal file, we find that that was not because of a protected act either. Mrs Sherlock and the SAR Team did not want to cut corners when it came to getting the claimant’s consent to release personal information. In April 2020, at the time of the change of line manager, the claimant had withheld consent for Mrs Sherlock to see her personal file. Miss Griffith had just criticised Mrs Sherlock for recording information on the Return to Work Discussion Form, allegedly in breach of GDPR. Detriment 3 – sickness absence policy

[405]Detriment 3 does not get off the ground. The alleged detrimental act did not happen at all. Mrs Sherlock used a form specified in the sickness absence procedure, but the use of that form did not “invoke” that procedure as the claimant alleges. The Return to Work Discussion Form was not the start of any process. Even if there was some “invocation” of the policy here, the claimant could not reasonably understand it to be to her detriment. This is for the reasons we have given at paragraphs 127 and 132. For good measure, paragraph 133 records our finding that the Return to Work Discussion Form was nothing to do with the claimant’s protected acts. Detriment 4 – performance review

[406]We now turn to Detriment 4. This part of the claim is related to Detriment 1. It is about Mrs Sherlock’s record of the performance review meeting of 21 September 2020, which she completed on 25 September 2020. The record summarised the discussion they had had about the claimant’s first tribunal claim. The claimant could not reasonably understand the reference to her claim there as putting her at a disadvantage. This is largely for the reasons we have given in relation to Detriment 1. It is also relevant that the performance review document was not intended for wide circulation. In all likelihood, the only people who would see the document were managers who already knew that the claimant had presented a claim to the tribunal. Detriment 5 – October SAR

[407]We can address Detriment 5 in just a few words. The alleged detrimental act did not happen. The respondent could not withhold something that did not exist. The conversation with Mr MacAlreevy was not documented, which meant there was no personal information about that conversation that could be provided to the claimant in response to a SAR. See our finding at paragraph 103. Detriment 6 – criticising the claimant’s tone

[408]Before adjudicating on the merits of Detriment 6, we must first make a decision on the claimant’s application to amend her claim.

[409]If we were to allow the amendment, the disadvantage to the respondent would be considerable. The late stage at which the claimant sought the amendment has left us with an important gap in the evidence, as we have discussed in paragraph 175, 176 and 177.

[410]We considered adjourning the final hearing part-heard in order for Mrs Sherlock to be recalled. That course would not help to achieve the overriding objective. It would add to the expense and increase the delay to a claim that was first presented nearly 4 years ago.

[411]The disadvantage caused to the claimant by refusing the amendment is relatively slight. As we explained in paragraph 177, the likelihood is that, even if the amendment were to be granted, Detriment 6 would ultimately fail. The context of the e-mail chain strongly suggests that Mrs Sherlock’s only motivation for criticising the claimant’s tone was her accurate perception that the tone was abrasive.

[412]It no longer appears to be the claimant’s case that Detriment 6 was motivated by any of the six protected acts in the list of issues. In case we are wrong about that, it is worth recording what our conclusion would have been. There are no facts that would enable us to conclude that any of the six protected acts influenced Mrs Sherlock’s criticism of the claimant’s tone. Detriment 7 – the e-mail

[413]Detriment 7 is based on Miss Mallett’s e-mail of 28 April 2021 and, in particular, Passages (a) to (d). These four passages are, of course, also alleged to be Harassment 1.

[414]We must decide whether the claimant could reasonably understand these four passages to put her at a disadvantage.

[415]When coming to that decision, we are acutely aware of two things. First, the claimant had disabilities that were aggravated by stress. Second, it was not just the claimant who thought that the e-mail was detrimental to her. Ms Hammersley thought so too. In her appeal outcome decision, Ms Hammersley found that passages (b) to (d) implied that the claimant was responsible for previous breakdowns, and that this had upset the claimant.

[416]Despite having the weight of Ms Hammersley’s decision on her side, we cannot agree with the claimant’s perception of the e-mail. The view that any objective reader would reasonably come to was that Miss Mallett was trying her best to make an unpalatable but necessary point. Someone had to tell the claimant that there was an underlying problem that was not going to be solved by continuing the cycle of changing her manager. The underlying problem was not the claimant herself, or her disabilities, but the fact that she thought her managers were being unsupportive when they were actually trying their best to help her. That interpretation was consistent with a fair reading of the e-mail as a whole. Miss Mallett was trying to impress upon the claimant how committed Mrs Sherlock was to supporting team members with disabilities. She offered mediation between Mrs Sherlock and the claimant. Miss Mallett was required to be fair, but also to be honest. The Workplace Adjustment Policy required her to explain why she had refused the claimant’s request for an adjustment. That explanation had to be truthful, otherwise there would be no point in giving it. Objectively, and despite Ms Hammersley’s contrary conclusion, we cannot find anything in Passages (a) to (d) that the claimant could reasonably understand to put her at a disadvantage.

[417]It is not therefore necessary for us to determine whether Miss Mallett was motivated by the fact that the claimant had done a protected act. We have decided not to record such a determination in these reasons. The two asserted protected acts were, first, the claimant’s request for a change of Directorate and, second, asking for action to be taken to reduce her stress levels (through Miss Griffith). Both these protected acts were undoubtedly part of the causal chain of events: Miss Mallett would not have written Passages (a) to (d) unless the claimant had asked to move out of the Directorate. That does not, however, necessarily mean that they motivated Miss Mallett to write her e-mail as she did. On that question, we would prefer not to express a concluded view. Conclusions – Trade Union Detriment

[418]The complaint of Trade Union Detriment cannot be sustained in the light of our findings at paragraph 151. Any shortcomings in the information provided to the claimant between 1 and 24 December 2020 are fully explained by the factors set out there. They were not for the purpose of preventing or deterring the claimant from bringing a trade union representative to her grievance meeting.

Disposal

[419]For the above reasons, we dismissed the claimant’s claim.