Ms S Boardman v Greater Manchester Mental Health NHS Foundation Trust: 2408683/2022 and 2413233/2023
EMPLOYMENT TRIBUNALS
Case No 2408683/2022, 2413233/2023
Between
Ms S BoardmanClaimantGreater Manchester Mental Health NHS Foundation TrustRespondent
Before
Employment Judge SlaterDate 13 February 2026
JUDGMENT
Complaints of failure to make reasonable adjustments[1]The Tribunal concludes, unanimously: 1.1. That the complaint of failure to make reasonable adjustments in relation to the requirement to “hot desk” when working in the office (PCP2) is not well 1.2. That the auxiliary aids complaint is not well founded[2]By a majority (Employment Judge Slater and Ms Metcalfe), the Tribunal concludes that the complaint of failure to make a reasonable adjustment by not permitting the claimant to work from home on a permanent basis i.e. using her home as a “base” but potentially travelling to meetings where needed if and when her health permitted (PCP1) is not well founded. Complaints of victimisation[3]The Tribunal concludes, unanimously, that the complaints of victimisation are not well founded. Complaints of unfavourable treatment arising from disability[4]The Tribunal concludes, unanimously: 4.1. The complaints at paragraphs 18.2, 18.7.1 and 18.7.4 in the list of issues are well founded. 4.2. The complaints at paragraphs 18.1, 18.3, 18.4, 18.5, 18.7.2, 18.7.3, 18.7.5, 18.7.6, 18.8 and 18.9 are not well founded.[5]By a majority (Employment Judge Slater and Ms Metcalfe), the Tribunal concludes the complaint at paragraph 18.6 is not well founded. Complaint of constructive unfair dismissal[6]The Tribunal concludes, unanimously, that the complaint of constructive unfair dismissal is well founded. Compliance with the ACAS Code of Practice on Discipline and Grievance[7]The Tribunal concludes unanimously that the respondent was in breach of the ACAS Code of Practice in respect of delay in hearing the grievance and delay in notifying the claimant of the outcome of the grievance appeal. Remedy hearing[8]Remedy will be determined at a hearing on 8-9 June 2026, unless agreed by the parties prior to those dates.
REASONS
Summary
[1]The claimant, along with other staff, had worked at home for 2 years during the worst of the COVID-19 pandemic. She brought complaints of disability discrimination relating to events after the respondent sought to get staff to return to the office at least 50% of the time. She resigned and claimed constructive unfair dismissal. History of these proceedings[2]The claimant brought her first claim (case number 2408683/2022) when still working for the respondent. She brought her second claim (case number 2413233/2023) after she had resigned. An order was made for the cases to be heard together.[3]There were three private preliminary hearings dealing with case management before the final hearing. The claimant was unrepresented when she presented her first claim but was legally represented at all of the preliminary hearings as well as at this final hearing.[4]The first day of this hearing was set aside for Tribunal reading time, with the parties having been told not to attend. However, as a result of a suggestion by claimant’s counsel, the Tribunal met, by video conference, with the representatives at 11 a.m. on the first day for a discussion about some matters. The remainder of the day was spent reading. Part of the second day was spent dealing with applications from the parties. We started hearing evidence late morning on day 2. Some time was spent on other days dealing with applications from the parties as well as hearing evidence.[5]We finished hearing evidence on the morning of 9 December. We had hoped to hear oral submissions that afternoon, after reading the written submissions from the representatives. However, we were unable to complete reading the submissions by the time we would have needed to start hearing oral submissions if we were to complete these by the end of the day. We, therefore, informed the parties that we would hear oral submissions on the morning of 10 December, which we did.[6]This hearing was a hybrid hearing, with everyone attending in person, other than the claimant, who was allowed to attend by video link.[7]We offered for the representatives and parties to attend by video link for the giving of judgment, which we hoped to give on Friday 12 December. We were, however, unable to reach a decision by the afternoon of Friday 12 December, so informed the parties that we were reserving our decision and agreed with the parties dates for a remedy hearing if required.[8]The Tribunal met again in chambers on 26 January 2026 to conclude our decision making. Claims and issues[9]The claimant claimed disability discrimination (discrimination arising from disability, failure to make reasonable adjustments and victimisation) and constructive unfair dismissal.[10]A list of complaints and issues in the first claim was produced at the second preliminary hearing, in May 2023 and amendments subsequently agreed by the parties. An updated list was produced, including complaints in the second claim, at the third preliminary hearing in July 2024. An updated agreed list was produced by the parties in December 2024. A further updated list of complaints and issues was agreed by the parties on the first day of this hearing, with the exception of one point relevant to remedy only.[11]The list of complaints and issues agreed (except for issue 41) at this hearing is annexed to these reasons. Case management at the hearing[12]A number of case management matters arose during the course of the hearing. Some were dealt with by agreement, including adding some documents to the hearing bundle. The Tribunal gave rulings on contested matters with oral reasons.[13]Contested matters on which we gave a decision on 2 December 2025 were: 13.1. An application from the respondent to call one of their witnesses, Clair Carson, on day 9 of the listed hearing, which was refused. We read and gave such weight to Dr Carson’s statement as we considered appropriate. 13.2. Whether remedy as well as liability should be dealt with at this hearing. We decided to deal with remedy on a later date, if applicable. 13.3. Whether the claim under s.38 Employment Act 2002 could be pursued by the claimant. We deferred a decision on this until after a decision on liability. 13.4. Whether to decide whether there had been a breach of the ACAS Code of Practice on Discipline and Grievance at the same time as liability. We decided to do this, whilst reserving the right to defer a decision on this until the remedy state, if we considered we needed to hear further submissions.[14]The reasons we gave for these decisions are as follows. 14.1. We do not agree for Dr Carson to give evidence on day nine of the trial window. This would mean that the Tribunal would not be able to conclude the case within the trial window and we think it would be wholly unsatisfactory to split submissions and deliberations before and after the evidence of Dr Carson, as suggested by Mr Price. Even if we did that, we would be unlikely to be able to reach and deliver a decision within the ten days allocated to the case. We consider that the respondents have had plenty of time to make suitable arrangements for Dr Carson to attend, either in person or by CVP from a country where standing permission exists or to get permission if they wish to call her. If she had not already booked her cruise by July 2024, the respondent should have ensured that she stayed available on the relevant dates if they wanted to call her and, if she had booked the cruise at that time, made an application as soon as possible after the dates had been set in July 2024 for the case to be postponed and relisted 14.2. We have decided that we are going to have a split trial and deal only with liability and one matter relevant to remedy at this hearing. We will deal with remedy on a later date if it becomes applicable. Neither party had prepared to deal with remedy at this hearing. Even if the claimant can provide her remedy evidence by the end of the week as has been suggested, we consider the respondent would be prejudiced in trying to deal with that evidence at such a late stage. Pension loss is likely to be complicated with there being a defined benefit scheme, the claimant claiming career long loss and the claimant having been in receipt of an ill health retirement pension from the NHS since July 2023. 14.3. We defer a decision on whether the claimant can seek to claim four weeks’ pay by way of compensation for an alleged defect in the written statement of employment particulars until after we have made our decision on liability and we know whether that is going to be appropriate. We will hear submissions from the parties as to whether an amendment is required to the claim to consider the s.38 Employment Act 2002 complaint. 14.4. Both parties are agreed that we could deal with the ACAS code of practice point together with liability so we will hear submissions and make a decision on that point. We reserve the right not to make a decision on that point until the remedy stage if something occurs, perhaps in our deliberations, that makes us consider that further submissions on that point would assist us. We will not decide on the Polkey and contributory fault points at the same time as liability but we will allow the representatives to ask questions of the witnesses who are here that would be relevant to those matters if they wish to do so. The parties are free to call further evidence at the remedy stage relevant to those issues as well, of course, as making further submissions.[15]On 3 December 2025 we refused the respondent’s application to admit a photo in evidence. The reasons we gave were that the respondent had had plenty of opportunity to provide the photo in evidence earlier if it wished to do so. The clamant had put the date she said she attended the football club in her witness statement: 20 May 2022. The respondent put the date which appears to be incorrect on p.725 and we had had no explanation why Facebook dates appeared on other documents but not on this one. We did not consider the photo of such significance that the respondent was likely to suffer any significant prejudice by us not admitting the photo in evidence.[16]On 8 December 2025 we refused an application from the claimant to introduce in evidence a longer version of her timeline. The reasons we gave were that we did not consider it would be in the interests of justice to allow it to be introduced at this late stage, with the disruption this would cause to the hearing, despite its potential relevance. It appeared that the version now sought to be introduced had not been disclosed to the respondent before 5 December. It should have been disclosed long ago and, at the very latest, when the version at p.815 was disclosed on the Friday before the start of the hearing. There were many questions about when various entries were made and modified. We did not think the unfairness of introducing this document at such a late stage could be sufficiently mitigated by measures such as allowing Cathryn Buckley time to read the document before being cross examined on it and recalling the claimant to be cross examined about the document.
Evidence
[17]We heard oral evidence for the claimant from the claimant and Joanne Glynn, the claimant’s former manager, who left the respondent before the claimant. We heard oral evidence for the respondent from: Cathryn Buckley, Trust Safeguarding Lead; Juliette Tait, former Associate Director of HR; Ben Moody, former HR manager; Nicola Wilkinson, previously Associate Director of Operational HR and now Deputy Chief People Officer; and Andrew Maloney, formerly Chief People Officer and Deputy CEO. As referred to above, we did not hear oral evidence from Clair Carson, formerly Interim Chief Nurse, but read her statement and gave it such weight as we considered appropriate.[18]We had an agreed bundle of documents of 851 pages after we allowed some additional documents to be added to the bundle which had been initially agreed. References to page numbers in these reasons are to pages in that bundle.
Facts
[19]The claimant was employed by the respondent as a deputy adult safeguarding lead. She was employed from at least July 2019. There is a dispute about the start of her continuous employment, relating to whether the claimant’s employment was transferred to the respondent by a TUPE transfer but we have left resolution of that matter until the remedy stage, if applicable.[20]The claimant has a number of health conditions. She relies on cardiomyopathy, type 2 diabetes and osteoarthritis as relevant conditions for her disability discrimination complaints. The respondent concedes that she was disabled at all relevant times by reason of these conditions. The claimant had these conditions for some time prior to relevant events in this case.[21]Prior to the COVID-19 pandemic, the claimant worked in the office, apart from occasional days when her line manager allowed her to work from home to complete a particular task.[22]In November 2019, a DSE assessment was completed and, as a result of recommendations from that, the respondent supplied the claimant with an ergonomic chair, a screen guard, a foot rest and a wrist rest when working in the office.[23]On 9 March 2020, the claimant had an occupational health assessment as a result of sickness absence (p.247). The management advice in that report was that she was able to carry out all her duties with adjustments in place. It recommended regular breaks at work along with working from home when the claimant symptoms escalated, if operationally feasible.[24]Staff were sent home to work shortly before the national lockdown due to the COVID-19 pandemic was announced. The claimant was sent home a few days before other staff. Staff were told to take home essential equipment. The claimant took her laptop, keyboard and screen. She did not take the ergonomic chair or other equipment supplied as a result of the DSE assessment. The claimant understood from her line manager, Joanne Glynn, that she was not allowed to take anything else.[25]We find that, during the period working from home, the claimant did not say to Joanne Glynn or any other manager that she needed her ergonomic chair and other equipment to be able to work safely at home. This finding is supported by Joanne Glynn’s evidence, which we prefer to that of the claimant on this point, and the lack of any documentary evidence of a complaint. The claimant bought herself a desk.[26]The claimant and other staff worked at home for two years before the respondent announced that staff should return to the office at least 50% of the time from 4 April 2022.[27]The respondent agreed a homeworking deal with the trade unions prior to the announcement about the return to the office. There was guidance issued and a checklist to complete. The forward to the document is clear that the deal was about achieving a positive work life balance. It spoke about supporting staff with caring responsibilities, preferred working styles and maintaining a better standard of wellbeing to reduce absence and remain in work. It did not speak about agreeing homeworking as a reasonable adjustment for disability.[28]The respondent also had a flexible working policy. This did not specifically talk about reasonable adjustments for disability. Changes agreed as a result of a flexible working request would lead to a contract change.[29]At this time, there was no specific policy dealing with requests for reasonable adjustments. There was a mention of reasonable adjustments in the context of the policy for dealing with sickness absence. The well-being policy introduced on 28 April 2022 had a specific section on requests for reasonable adjustments.[30]Juliette Tait, associate HR director, told us that a line manager had authority to agree reasonable adjustments although a more senior manager, who had information that line manager did not, could take an alternative view based on the needs of the service.[31]On 24 March 2022, Joanne Glynn met with the claimant on Teams and completed a homeworking checklist for the claimant (p.398). In this checklist, Joanne Glynn expressed the view that all elements of the job could be undertaken from home and that the home working environment was suitable. The form included a statement that a DSE workstation assessment had been carried out on 24 March 2022 and that no action was required by the manager or member of staff. They agreed a trial period of two months from 4 April to 6 June 2022 and that a referral to Occupational Health should be made.[32]Joanne Glynn emailed Cathryn Buckley the same day about this agreement (p.264). She wrote that one of the reasons the claimant had asked to continue working from home was because of her health: cardiomyopathy and diabetes. Cathryn Buckley replied (p.263) to say that the arrangement was not agreed. She wrote that the homeworking deal was not about agreeing homeworking 100% of the time. She wrote “a request under the flexible working policy will also not change this.”[33]Joanne Glynn replied (p.262), suggesting that, due to the complexities and legal aspects, referring to the claimant’s disability and illness, it would be best if she liaised with HR for some guidance. She wrote “the flexible working policy is clear Sharon can request home working and she's going to be asking for a change to her contract.” Cathryn Buckley replied (p.262): “This is not advice, it is a deal agreed by the trust in consultation with the Unions. On the basis that what you have agreed is not within the remit of the deal, please inform Sharon that as her manager you cannot agree 100% working from home – the maximum is 50%. You then need to manage any response as her line manager.”[34]Joanne Glynn replied (p.261), writing that her understanding was that there would be exceptions to the rule depending on an individual’s circumstances “especially the vulnerable as Covid is still active and present in the Trust, which is raising Sharon’s anxiety and stress levels.” She wrote “having read Sharon’s occupational health report again, it clearly documents Sharon’s risk of infection due to low immunity as a result of her illness and how as an employer we should consider homeworking when there’s been a change in circumstances and symptoms escalate, Sharon reports her recent MRI scan is showing more heart muscles have died off.” Joanne Glynn referred to the option for staff to request flexible working alongside the 50-50 deal, saying that the claimant was requesting a change in her contract from the Prestwich base to home. Joanne Glynn suggested they arrange a meeting to discuss this further and invite HR.[35]Cathryn Buckley replied (p.261) “as per my previous email please inform Sharon by the end of today.”[36]Joanne Glynn replied (p.261) that she and the claimant had just finished a meeting to discuss her flexible working request that Joanne Glynn had agreed in principle but advised she would need to speak with HR so she would get back to her. She wrote that the claimant had informed her that the claimant planned on seeking HR and union advice along with advice and support from occupational health. Joanne Glynn wrote that she would be interested in knowing what Cathryn Buckley’s decisions were predicated on. Joanne Glynn wrote that she felt she was being bullied into making a decision that she was not in agreement with and therefore would seek HR advice. We have not seen any reply from Cathryn Buckley at this time, explaining why home working could not be agreed as a reasonable adjustment.[37]Also on 24 March 2022, the claimant made a flexible working request requesting a contract change to her base being homeworking (p.258). She also wrote that she wanted to continue to work ten days over nine.[38]On 25 March 2022, Clair Carson wrote to staff, including the claimant, about the homeworking deal (p.266). She wrote about the arrangements for the office space. At this stage, the claimant would have been working in an office with other people if she had returned to the office. She would be using a desk which would be used by other people when she was not in. Clair Carson wrote “if you have any issues with this please speak to your line manager in the first instance and whilst I’m very very clear every single member of staff in N and G will be working at least 50% of their week in the office that’s a minimum - if staff want to return for 60% or even full-time then that’s fine-just please let your manager know and we can sort out the desk space.”[39]In response to an email from a member of staff asking to meet to discuss the homeworking deal, Clair Carson replied on 29 March 2022, refusing a meeting, saying there was nothing to be gained from a collective meeting as she would not, nor could she veer from a policy that had been implemented and agreed (p.272).[40]She wrote: “If there are individual reasons why this needs to be reviewed for you personally then I expect a formal process to be followed - this will include a discussion with your line manager with the starting point of how we can make sure the needs you have can be accommodated in a 50-50 work pattern. “Whilst I will always support personal needs of all staff at work in my teams I also need to support the wider services as a whole and work within the agreed framework. This may seem inflexible but to be fair the offer of a 50- 50 work pattern is a very flexible offer and could very well have been an expectation to return to work full-time as stated in your contracts of employment. “I hope this makes my position clear on this and if you have extenuating circumstances that mean you cannot comply to this deal I expect that to be done via line management and a formal process that is ultimately reviewed and signed off by me.”[41]On 29 March 2022, the claimant wrote to HR (p.271) asking for advice on the flexible working policy and her rights. She asserted that she should be able to work from home with her Dilated cardiomyopathy and insulin controlled diabetes as she was high risk and Covid was on the rise again, with a number of staff at the respondent reporting infection. We have not seen any response to this email.[42]On 31 March 2022, the claimant wrote to Joanne Glynn (p.278). She wrote that she had spoken to her union representative, Michelle Clarkson, HR disability representative for the Trust and HSE representative. She wrote about her health issues, writing that she felt that going into the office would be dangerous to her health currently. She wrote that she was fearful of contracting Covid and ultimately dying. She wrote that she understood they were hot desking with no thought for disabilities and she could not hot desk as she had a desk risk assessment back in 2020 and had a specific chair, wrist and foot rest and a protector for the screen for her eyes.[43]She wrote: “Due to my health issues with no clear room risk assessment. My reasonable adjustments being withdrawn without any discussion, chair and desk, I will not be going into the office until I have sought further advice from health and safety again and also occupational health. “I am not refusing to work and will carry on working at home until this matter is resolved by the policies and procedures. My only issue is a SAFE place which I do not feel the Knowsley building is at the moment.”[44]Joanne Glynn forwarded the claimant’s email to Cathryn Buckley. In her absence from the office, Joanne Glynn asked Cathryn Buckley to liaise with the claimant to provide assurance that all the necessary risk assessments and reasonable adjustments had been undertaken to support the claimant’s safe return to the office.[45]Cathryn Buckley wrote to the claimant on 1 April 2022 (p.277). She wrote that all rooms at the Knowsley building had been risk assessed in line with Covid guidance for non-clinical areas, taking into consideration the one metre guidance. She wrote that there was hand gel and masks available and disinfectant wipes on desks. She wrote that the office where the safeguarding team had been allocated desks was a large office with appropriate ventilation and there was always the option of checking the availability of any single offices although these could not be guaranteed. She wrote: “In relation to your reasonable adjustments, you have worked from home for the previous two years, and I’m not aware that you were provided with or have requested such equipment during this time. Please can you confirm what your set up has been at home i.e. desk, chair, equipment etc. “I would therefore, suggest that a further DSE assessment is completed. If the outcome of the assessment is that you require such equipment, and this can be provided in the office, however the Trust would not provide this equipment for home use also, therefore, in view of any risks or equipment required, you may need to be office based for all of your working hours to ensure the risks identified are mitigated. Should this be the case we will look to identify a specific desk with the appropriate equipment for you to use. “It has been very clearly stated in recent communications, that the expectation is that staff will work within the parameters of the homeworking deal from next week. This position remains the same.”[46]A telephone occupational health assessment was carried out on 1 April 2022. The report (p.409) included that the claimant had two long-term conditions that increased her risk of severe symptoms should she come into contact with Covid. The adviser recorded that the claimant said she had been working from home without any problems for the past two years and was anxious about returning to the office where she would have no set desk and all other specialised equipment highlighted by DSE had been removed. The adviser recorded that the claimant had told her that she had been avoiding any social functions or unnecessary outings since the onset of the pandemic. Under the heading of management advice, the adviser wrote: “due to the complexities of her health conditions, I strongly recommend that she continue working from home. I fear that she will absent herself due to her anxiety if she is unable to continue working as she has for the past two years. If this is not operationally feasible, I suggest she be allocated an office where she can safely work on her own with her screen guard, footstool, wrist support in place. There are no further adjustments that I can recommend at this time to facilitate her returning to the office environment. These are ongoing conditions which are unlikely to improve over time.”[47]In January 2022, the claimant had attended an event at the Arena in Manchester, under strict social distancing conditions and having proof of a negative Covid test.[48]The claimant began a period of sick leave on 4 April 2022, the date on which staff were to return to working in the office at least 50% of the time. The claimant remained on sick leave until 23 August 2022.[49]The claimant presented her first grievance on 4 April 2022 (p.280). The claimant wrote that she was submitting a formal grievance regarding the removal of disability adjustments and lack of adequate health and safety measures to keep her safe. She wrote that she felt she was at great risk of being seriously ill/death should she contract Covid 19 and the employer’s decision to return all staff back to the workplace and subsequent hot desking without proving that she could work safely was unacceptable and impacting on her mental health which was subsequently impacting on her physical health. She invoked the status quo, asking to be allowed to continue to work safely from home until such a time that the respondent could hear her grievance as a reasonable adjustment to disability and that of health and safety. She wrote that she would be willing to attend face-toface team meetings or supervision if needed. If she could not continue to work from home, she asked to know the reasons why this could not be achieved, asserting that all her work was currently online and on Teams. She asserted that all the work she undertook could be done from home and she had done this efficiently for the last two years. She included in her grievance that she had equipment at home that she purchased in the pandemic as the respondent would not provide this.[50]The claimant met with Cathryn Buckley, Stella Drake of HR and Michelle Clarkson on 12 April 2022. The meeting invitation said “grievance”. The outcome letter from the 6 May 2022 meeting described it as an initial flexible review request meeting. The management side statement of case prepared for the grievance hearing later held on 7 December 2022 describes it as a meeting to discuss the grievance in an effort to try to resolve it informally (p.377). There appears to be no consensus as to what the meeting was considering and under what policy. There are no notes of the meeting we have seen and no outcome letter. We find that Stella Drake persuaded managers that they should use the flexible work policy to consider the claimant’s requests, which had been submitted in both the form of a flexible working request on 24 March and a grievance on 4 April.[51]They had a further meeting on 6 May 2022. This was described in the outcome letter (p.370) as a flexible working request meeting. Whilst there is a dispute as to when the outcome letter was sent to the claimant, it is clear from her amended grievance submitted on 6 May 2022, that she was told at the meeting that Cathryn Buckley would not agree to her working from home as she felt she could not complete her role by not doing face-to-face meetings. On 6 May 2022 the claimant knew her request had been refused and the reason for this.[52]The claimant said at the meeting she would do face-to-face meetings if they were risk assessed, by room and number of people in the room and she would wear a mask.[53]At the latest, the claimant received the outcome letter on 18 January 2023. The reason for refusal of the request is given as “detrimental impact on ability to meet customer demand”.[54]In the amended grievance (p.285), the claimant said she was requesting to remain working at home whilst the pandemic was still visible. She wrote that she was happy for this to be reassessed in the future if and when they were in a safe place with Covid (p.289). This was a change from the flexible working request which sought a contract change on a permanent basis and from the original grievance submitted on 4 April 2022.[55]On 16 May 2022, the claimant put in a request for ill-health retirement but withdrew this request on 7 June, writing to Stella Drake and others that, after discussion and consideration, she felt she could still do her job with reasonable adjustments, therefore was withdrawing her ill-health retirement request at that time (p.292). She wrote in that letter that she still wished to proceed with her formal grievance for failure to make reasonable adjustments under the Equality Act 2010.[56]Joanne Glynn was off sick around June 2022 until around the end of August 2022. During her absence, Cathryn Buckley managed the claimant’s sickness absence.[57]Cathryn Buckley made a referral to occupational health on 17 June 2022 (p.294). She wrote in the reasons for referral that the claimant was planning to return to work on 18 July 2022. The advice she required included advice about the claimant’s fitness to work.[58]The 30 June 2022 OH report (p.410) stated that the claimant was not fit to work in any effective, consistent or safe capacity and without the risk of further exacerbating symptoms and that there were no adjustments which would support a return to work. The report advised having a review in 4 weeks’ time. The assessment was carried out by telephone.[59]A further OH referral was made by Cathryn Buckley on 4 July 2022 (p.296). The reasons given for the referral included the recommendation in the previous report for a review 4 weeks after last report and that the claimant was saying she intended to return to work on 18 July.[60]The 19 July 2022 OH report (p.411), again based on a telephone assessment, expressed the opinion that the claimant was unfit to work from the office. It expressed the view that she was fit enough to attempt a return to work provided this was working from home. The report stated that this was unlikely to change in the future. The opinion referred to the claimant’s health conditions without mentioning increased risk from contracting COVID as a reason for stating she could only work from home. The report referred to the claimant getting short of breath on the slightest exertion, her mobility being severely affected and suffering from exhaustion, needing to take short naps during the day. The adviser wrote that there was no need for a review appointment unless requested by management. The report said that, if ill health retirement were to be considered, the relevant decision makers would likely consider whether all reasonable adjustments had been implemented.[61]The difficulties reported in the 19 July report are so severe that this would suggest to us that the claimant would have difficulty working anywhere other than at home e.g. going out to meetings.[62]We know from the evidence of Cathryn Buckley that she thought the claimant could be exaggerating her symptoms and wondered whether the claimant was presenting the worst case.[63]A meeting was held on 21 July 2022 between Gill Green, Director of Nursing, Clair Carson, Stella Drake and the claimant and her TU representative, Michelle Clarkson. We did not have oral evidence from anyone other than the claimant who was present at that meeting but we had a witness statement from Clair Carson and an outcome letter dated 28 July 2022 (p.418). From the description in the outcome letter, we find this meeting was eventually treated by managers as a flexible working appeal hearing. However, as the witness statement of Clair Carson acknowledges, there was some confusion as to whether it was a grievance appeal or a flexible working appeal. The claimant withdrew her flexible working appeal at that meeting. We accept that the claimant intended to pursue her request for reasonable adjustments but we do not find that this was clear to the respondent at the time. The outcome letter recorded the claimant as withdrawing the appeal without noting that she still wanted to pursue her request for reasonable adjustments as a grievance. Clair Carson, for management, expressed concern at the meeting about the most recent OH report contradicting the one from 4 weeks before. Gill Green made a decision to send the claimant for a further OH referral, conducted this time in person rather than by telephone. The outcome letter records that the OH appointment would need to take place in person for a full assessment of conditions.[64]Clair Carson, at that meeting, made a remark suggesting working 5 days a week might be better for the claimant’s health rather than working 10 over 9, which was the existing arrangement. Clair Carson did not pursue this when the claimant said she wished to continue with the arrangement. We find Clair Carson did not threaten to remove the 10 over 9 working arrangement. In making this finding, we note that the claimant’s note in her timeline on page 817 is more consistent with the account in Clair Carson’s witness statement than the account in the claimant’s witness statement. We also note that a threat to remove the arrangement was not mentioned in the claimant’s email of 25 July 2022 referring to that meeting (p.302).[65]Based on the witness statement of Clair Carson, by around July 2022 Clair Carson had become aware of the Facebook post about the claimant having attended Blackburn Rovers football club, which we now know to be in May 2022. Cathryn Buckley could not remember when she found out about the Facebook posts but thought it could be mid to late 2022 and said she found out because a member of staff in the team made a comment about the claimant having social contacts. Cathryn Buckley was able to access the claimant’s Facebook pages because the claimant did not have privacy settings in place restricting access. The only postings we have seen for 2022 are the Arena (Jan 2022) and the Blackburn Rovers postings (May 2022).[66]Cathryn Buckley, acting on instructions from Gill Green, made a further OH referral (p.304), this time requesting an in person assessment. She asked for pre and post consultation briefings. Cathryn Buckley wrote that the claimant’s role required that she was office-based with the option of working a proportion of her week from home where possible. She wrote that she could not work from home full-time due to the nature of her role which included face-to-face internal and external multi-agency meetings, training etc. She wrote that it was not an option in that role to work full-time from home. Ms Buckley asked whether the claimant was able to undertake her role i.e. office-based, travel to and from meetings across a wide trust footprint. She asked what roles and responsibilities the claimant could undertake, if she was not able to return to the office and undertake her current role.[67]Cathryn Buckley asked for same assessor who had provided the 19 July OH report but, despite this request, the next OH report was done by a different assessor.[68]In an email to Nicola Wilkinson on 25 July 2022 (p.302), the claimant asked for her grievance lodged in April and amended in May 2022 to be heard. She asked Nicola Wilkinson to let her and her union rep know where this was up to as she felt it had been going on for a particularly long time causing her stress and anxiety. Nicola Wilkinson replied the same day (p.301), writing that she would catch up with Dene and Stella that day or the next day to understand exactly what was agreed from a process point of view and then come back to the claimant with a clear plan. She asked Michelle Clarkson, who she had copied into the email, whether she was free to discuss this that day. Nicola Wilkinson had a discussion with Michelle Clarkson and recalled reaching the point of needing a grievance hearing to be set up. We have no evidence that Nicola Wilkinson went back to the claimant directly with a clear plan.[69]As noted above, the outcome letter from the 21 July meeting was sent to the claimant on 28 July 2022.[70]Around the end of July 2022, in response to a request from the claimant to take annual leave, Cathryn Buckley told the claimant that the claimant would remain on sick leave until the OH assessment, refusing to authorize annual leave.[71]On 3 August 2022, Stella Drake wrote to the claimant asking her to clarify what grievance she was referring to in some information from the claimant (p.308). We are not clear which email Stella Drake was responding to, if it is an email we have been provided with. The claimant replied (p.308), writing that she had put in a formal grievance on 4 April and chased this up upon a number of occasions, including an email to Nicola Wilkinson with Stella Drake copied in. She referred to an email from Stella Drake, which we do not appear to have been shown, in which the claimant said that the latest email from Stella Drake was to convene a panel to hear the formal grievance as Stella Drake had agreed it had gone on too long. In a further email (p.308), Stella Drake asked whether the grievance the claimant was referring to was regarding flexible working and working from home. Stella Drake wrote again on 3 August, writing that it had been heard as a Flexible Working Appeal, at the hearing the claimant withdrew the application and there was no outstanding grievance (p.301).[72]The claimant replied (p.307), writing: “If you remember I said I wanted to take the formal grievance forward but you said it would have to go through the FW appeal. “The grievance has not been heard. I am finding this very stressful when the trust is not following its policy and procedures. “We were guided to withdraw the flexible working appeal which is completely different from a formal grievance hearing. The formal grievance is around Reasonable adjustments for disability and was sent in and acknowledged in April 2022. There has been no hearing or communication around this as yet.”[73]The claimant had copied Nicola Wilson into this email. Nicola Wilkinson replied (p.300), asking the claimant to summarise the adjustments requested and not in place and any other matters she was aggrieved about and the outcome sought.[74]The claimant attended a face to face OH assessment on 16 August 2022. The claimant subsequently complained to the OH provider about the doctor’s behaviour at this assessment. The complaint was written after the OH report. The complaint does not mention what the claimant has referred to in evidence as alleged comments by the doctor suggesting pre-judgment. The claimant has not satisfied us on a balance of probabilities that the doctor made the comments she now alleges he made. We consider that, if such comments had been made and the claimant had been offended by them, the claimant would have mentioned these in her complaint.[75]The OH report of 22 August 2022 (p.413) made no reference to the claimant being at increased risk of Covid infection. The management advice in the report was that the claimant was fit for work with adjustments. She was likely to have functional difficulties due to intermittent tiredness and fatigue. Recommendations included considering an arrangement of hybrid working where she could have the flexibility to work from home where possible and keep up with her meetings in the community as needed and work from the office as needed. The doctor wrote that he was hopeful that, with the adjustments suggested, she would be able to continue working and, therefore, redeployment or ill-health retirement were not feasible options at this stage.[76]On 22 or 23 August the claimant recommenced work, working from home, prior to any return to work meeting.[77]Joanne Glynn returned to work from sick leave around the same time.[78]On 23 August, the claimant had a Teams meeting with Cathryn Buckley. We find that, in this meeting Cathryn Buckley made the comment, “you’ve had this ages so what’s changed” referring to the claimant’s long term health conditions. Cathryn Buckley accepts she made this comment. The claimant makes no reference to this comment in the claimant’s timeline for 23 August or in her grievance of 26 August. The majority of the Tribunal (EJ Slater and Ms Metcalfe) are not satisfied that the claimant was upset by the comment at the time. Had she been, the majority considers that she would have referred to this in the grievance, which was about Cathryn Buckley, written a few days later, and in her timeline. The minority (Dr Tirohl) accepts the claimant’s evidence that she was upset by the comment. The claimant said in oral evidence that the comment was also made in April but it is not necessary for us to decide whether this was the case since there is no pleaded complaint about such an alleged comment in April.[79]On 23 August 2023, there was one call by Teams from Cathryn Buckley to the claimant. The claimant’s note on p.821 does not suggest to us that 3 calls were made on that day, as alleged in the claimant’s witness statement (paragraph 31). The entry is in red, which we had been told indicates an entry not made at the time but the claimant’s subsequent reflections. It also more naturally reads as referring to 3 calls over a period while she was off sick.[80]Cathryn Buckley required the claimant to attend an in person meeting at the Knowsley building on 25 August. She wanted to discuss reasonable adjustments including hybrid working. There was no specific mention of this being within the context of the 50/50 deal. In cross examination, in relation to what was said about hybrid working at grievance hearing, Cathryn Buckley agreed she understood this was working from home up to 50% as part of the home working deal (p.185). We consider it likely Cathryn Buckley intended any arrangement to be subject to a 50 % maximum working from home at this stage. Cathryn Buckley suggested the possibility of a disability passport. She asked the claimant to forward a copy of her grievance so they could try to resolve items in that grievance.[81]Ms Buckley wrote to the claimant on 23 August 2022, following this conversation (p.311). She wrote that it was essential that she undertook a number of tasks with the claimant to ensure she was welcomed back into the team appropriately, including introducing her to colleagues she may not have met, familiarising her with the working environment she would be returning to and ensuring that they could have a detailed and supportive discussion in relation to the adjustments that had been put forward for consideration by occupational health. She asked to meet the claimant in the Knowsley building on 25 August.[82]The claimant replied (p.310) that her trade union representative was on annual leave until the following Tuesday and she would like to get some advice before they met. Cathryn Buckley replied (p.310) that it was essential they completed her return to work interview as soon as possible following her return to work and proposed meeting on 26 August, a date before the claimant’s trade union representative returned. She wrote that this was a reasonable management request.[83]The claimant wrote again on 25 August (p.430), asserting a right to take advice before the meeting. She referred to having invoked the status quo and awaiting a grievance meeting.[84]Cathryn Buckley replied on 25 August 2022 (p.431), writing that the meeting should not be delayed pending the return of her union representative. She wrote: “Your occupational health report states that you can come into the office, and you have also confirmed that you can attend face-to-face meetings. “This is a reasonable management request, therefore, as stated previously I wish to meet with you at 10 am tomorrow at Knowsley building.”[85]Cathryn Buckley gave evidence that she did not consider the claimant required advice from her trade union to attend a return to work meeting.[86]The claimant replied on 26 August (p.432), writing that she had not received the email until after she had finished work for the day. She wrote that her grievance had not yet been heard and she had invoked status quo “which means that until the grievance is heard the situation remains the same, which in my case is working at home.” She wrote that she had said that, going forward after the grievance, she would attend face-to-face meetings across the trust as and when needed and she would risk assess these for stairs, parking etc. She wrote that she would be submitting a further grievance for victimisation and lack of duty of care towards her physical and mental health. She wrote that she would have a return to work meeting after her trade union representative had returned from leave and she would not be attending the face-to-face meeting that day.[87]Cathryn Buckley subsequently passed back to Joanne Glynn the claimant’s day-to-day line management, including the agreement of reasonable adjustments and any ongoing return to work plan. She informed the claimant of this by an email on 30 August 2022 (p.433).[88]The claimant submitted a further grievance on 26 August 2022 (316). She complained about her treatment by Cathryn Buckley since her return to work, alleging this was victimisation due to raising a grievance in April around unfair treatment due to her disability. She wrote that she could not understand why the meeting could not be completed on Teams. She wrote that she understood from her line manager that there were no new colleagues to be introduced to. In relation to being shown the working environment, the claimant commented that she was unsure how Cathryn Buckley already knew the outcome of the grievance that had not yet been heard.[89]On 1 September 2022 the claimant had a return to work meeting with Joanne Glynn on Teams. We find that Joanne Glynn did not mention redeployment at this meeting. There is no reference to this in Joanne Glynn’s note (318) or the claimant’s timeline. Hybrid working (50/50) was to commence. There was a phased return plan for the claimant to start working in the office part of the time from 10 October 2022.[90]A meeting was arranged for the week commencing 19 September with Joanne Glynn, the claimant and her union representative to unpick the grievance.[91]On 8 September 2022, the respondent received notification from the BBC of the Edenfield programme to be broadcast 28 September 2022. This increased HR and managers’ workload considerably.[92]Cathryn Buckley allocated the head of children’s safeguarding, Kerry Ashton, to work from the Edenfield site. She did not ask Joanne Glynn or the claimant to attend that site, although it was a matter which would normally be dealt with by those responsible for adult safeguarding.[93]On 8 September 2022, the claimant notified ACAS under the early conciliation procedure.[94]On 23 September 2022, there was a meeting between the claimant and Joanne Glynn. The notes of the meeting refer to the claimant having gone to ACAS. Under the heading “Plan and Action”, the notes state that the status quo was to remain in place i.e. the claimant was to continue to work from home. Joanne Glynn was to make an occupational health (OH) referral for a Home Assessment. The notes record that they were expecting HR to have a meeting with the claimant relating to her notification to ACAS.[95]On 20 October 2022, early conciliation concluded.[96]We heard no evidence of any meeting on 25 October mentioning redeployment.[97]On 23 October 2022, there was an OH report (415). This was the result of a telephone assessment. The report stated that the claimant was currently fit to continue in her current job role provided the recommendations of the report were taken into strong consideration. The adviser wrote that, based on information provided, they would consider the claimant to be in the high risk category of becoming seriously unwell if she were to contract Covid 19, hence they recommended working from home if feasible. Recommendations were also made about steps to be taken if the claimant attended the office. These included flexible working hours due to the fluctuating nature of the claimant’s symptoms and flexible breaks to allow her to manage her fatigue symptoms better. Working in the office was only recommended provided: that risk assessments had been performed which indicated that her work environment was considered to be low risk; social distancing measures maintained at all times and appropriate PPE used when social distance of 2 m was breached; masks used and exposure to frontline duties minimized and good hand hygiene practised. They recommended, if it could be accommodated, for the claimant to be allocated her own desk which was not shared, to clean down her workplace or high touch areas, and have a separate break time to others and eat at her desk. They also recommended, if it could be accommodated, for the claimant to have a different entrance to the building to try and minimise exposure to Covid and to consider having a different start time to try and avoid the claimant entering the building when lots of employees were expected to enter the building around the same time.[98]There was a meeting on 26 October 2022 at which Clair Carson and Nicola Wilkinson decided the claimant could reasonably be expected to return to work in the office with certain adjustments being made.[99]On 27 October 2022, the claimant had a meeting with Joanne Glynn. Joanne Glynn informed the claimant of adjustments which they felt could be made to support her return to the office having considered all OH reports including the most recent one of 23 October 2022. The plan was for phased return working up to 50/50 working by week 5. Redeployment was mentioned but as an option and the claimant was warned of a significant amount of risk with this option, because she could only be on the redeployment register for 12 weeks. It appears that Joanne Glynn emailed the claimant after the meeting to confirm what was discussed. We do not have the original email with its date sent header, but have seen the text of this embedded in a later email from Stella Drake to Nicola Wilkinson (p.328).[100]On 28 October 2022, the claimant wrote to Nicola Wilkinson (p.330), writing that she had two outstanding grievances which she would like escalated to stage 2 due to the length of time which had passed and the continued discrimination and harassment she said she was experiencing.[101]The claimant presented her first tribunal claim on 2 November 2022.[102]Nicola Wilkinson replied to the claimant’s email on 3 November (p.329), writing that, if she understood correctly, the two grievances were 1. The length of time taken to resolve her reasonable adjustments; and 2. ongoing discrimination and harassment. Nicola Wilkinson asked her to complete two separate grievance notification forms so they had an up to date record of what the issues were and the desired outcome. She asked for clarification as to where she believed the ongoing discrimination and harassment was coming from. She referred to the discussions the claimant was having with Joanne Glynn about adjustments and wrote that, if the claimant wished to escalate this to a formal hearing, it was important they understand what elements the claimant was unhappy with and what steps could be taken to resolve her grievance.[103]Nicola Wilkinson copied this email to Stella Drake and others. Stella Drake replied to Nicola Wilkinson including an embedded email from Joanne Glynn to the claimant, setting out what had been discussed at the meeting on 27 October 2022 (p.327).[104]On 7 November 2022, Michelle Clarkson wrote to Nicola Wilkinson copying Juliette Tait, writing that the claimant had submitted two grievances, one over 6 months ago and would like both heard.[105]On 7 November 2022, Nicola Wilkinson replied to Michelle Clarkson (p.332). Nicola Wilkinson wrote that they would convene a meeting for grievance one. She suggested a facilitated meeting or mediation between the claimant and Cathryn Buckley in relation to grievance 2 since no attempt had been made to resolve that grievance informally. That suggestion was not pursued by the claimant.[106]On 7 November Juliette Tait wrote to Nicola Wilkinson (p.336), asking whether they could do without resubmitting the grievance. She wrote that she thought the outcome from the Gill/Dene hearing was it should be a grievance so maybe it should have been auto arranged at that point. Nicola Wilkinson replied to Juliette Tait (p.336), writing that the first grievance already seemed to have the desired outcome in place and the second grievance had had no attempt to be resolved informally. She suggested it was not unreasonable to ask the claimant and her union representative to be clear.[107]On 17 November 2022, Joanne Glynn sent the claimant an invitation to a grievance hearing on 7 December to be heard by Steven Morley, assisted by Ben Moody (p.340).[108]The claimant makes an allegation in her particulars of claim that, in the period 29-30 November 2022, Joanne Glynn referred to an out of date homeworking checklist. The claimant gave no evidence about this in her witness statement. Joanne Glynn’s evidence did not support the allegation. The claimant’s submissions (para 189) address a different allegation to that made in the Particulars of Claim. The claimant has not satisfied us that this occurred as alleged in her Particulars of Claim.[109]There was no investigation report. Cathryn Buckley prepared a management statement of case which was given to the claimant in advance of the meeting.[110]Based on the evidence of Ben Moody and Andrew Maloney, we find that the respondent rarely met the timeframes for dealing with grievances in their policy but find that the length of delay in hearing the claimant’s grievance was exceptional.[111]At the hearing on 7 December 2022, the claimant was told for the first time that she would have a room not used by others. The position as at the 27 October meeting had been that she would be able to book a single room but this would be a room used by others when she wasn’t there. Steven Morley and Ben Moody were not aware that this was the first time a sole occupancy room which would not be used by others had been offered. The claimant was asking to work 100% from home. There was no mention at this meeting of re-evaluating the situation as the Covid risk lessened. The claimant was seeking to work from home as a base, travelling out to meeting as and when needed, risk assessed at the time.[112]At the hearing on 7 December, Cathryn Buckley asserted that meetings which should have been allocated to the claimant had to be given to others. She gave no examples of meetings the claimant would have had to attend in person at the time. All parties anticipated that at some point at least some face to face meetings would be returning.[113]The claimant’s trade union representative focused her arguments on the claimant’s need to work from home being because of the risks Covid 19 posed to her.[114]From the date given on the Ill Health Retirement application form, Joanne Glynn started completing this by 14 December 2022, although the details in the application refer to an outcome to the grievance which had not been received on that date.[115]Steven Morley and Ben Moody did not ask Cathryn Buckley for evidence of her assertion that there were face to face meetings going on which the claimant should have attended and had been allocated to others.[116]On 20 December 2022 the grievance outcome was sent to the claimant (p.359). Steven Morley wrote that the claimant had clarified that her desired outcome was to be able to work from home permanently but she had indicated she would be prepared to attend face to face meetings on Trust sites on the condition that she could risk assess the premises in advance for reassurance that the environment was appropriate and that she had access to disabled parking, lifts and other facilities that she required. Steven Morley did not uphold the claimant’s grievance. He wrote that the service was unable to support a request to work at home permanently following the return to normal service delivery and the easing of restrictions put in place by the government in response to the Covid 19 pandemic which meant that internal and external meetings and communications now took place face-to-face. He considered there would be a detrimental impact to the service from permanent homeworking.[117]Steven Morley conducted no further investigation and based his decision on information from Cathryn Buckley about the requirements of the job to attend face to face meetings now taking place.[118]Steven Morley made recommendations which included that the claimant’s return to work should take place under a hybrid model in which her work time was apportioned between homeworking and working on site in trust premises. He wrote that it was not for the panel to determine how often she should spend working in each location in practice; he would expect her to agree how frequently she was required to be on site with her line manager, taking into account the flexibility that the service had signalled that they were prepared to accommodate. It was not made clear in the letter whether hybrid could be less than 50% in office. Subsequent documentation shows that both management and the claimant understood this to be within the confines of a maximum 50% at home.[119]Other recommendations included that an immediate referral should be made to occupational health to determine whether there were any additional adjustments which could be put in place to support her return, specifically asking questions about her mental health given that the transition to office based working may be daunting after over two years of working purely from home. Steven Morley also recommended that the Trust fund and provide the claimant with any extra or adapted equipment she needed to work comfortably from home as well as in the workplace without being disadvantaged. He recommended revisiting the DSE workstation assessment that had been completed in March 2022.[120]The claimant submitted an appeal against this decision on 9 January 2023 (p.435). The claimant did not seek to correct Steven Morley’s understanding that she was seeking a permanent change to home working. One of the issues she raised was to say that the whole point of her disabilities had been missed and the focus was on Covid 19, which she said was only part of the reason she wanted to remain working at home as a base. The claimant argued that the arrangement suggested was still 50-50 so did not give her any reasonable adjustments; it was no different to other staff. She complained about the number of occupational health reports and wrote that she was not prepared to be subjected at this stage to any further occupational health assessments.[121]On 9 January 2023 the claimant also wrote to Cathryn Buckley (p.367) asking whether any equipment had been ordered for home. Cathryn Buckley was on sick leave at the time and did not reply.[122]Also on 9 January 2023, the claimant had a supervision with Joanne Glynn (p.439). They discussed an increase in Covid cases and government advice to start wearing masks in public places and, where possible, to work from home. Joanne Glynn recorded that the status quo remained in place about the grievance and the claimant continued to work from home.[123]On 13 January 2023, the claimant made an application for Ill Health Retirement (IHR).[124]On 1 March 2023, the claimant was informed that her application for IHR had been accepted (p.825). The letter informed her that medical evidence indicated that she was permanently incapable of her NHS employment. It referred to OH advice of February 2023 that she was unfit for any return to office based duties. We have not seen the OH advice of February 2023, which was presumably obtained in relation to this application. The claimant was informed that the information about acceptance of her application had been passed to the Pensions Officer to contact her about next steps.[125]On 9 March 2023, the claimant received an invitation to an appeal hearing with Juliette Tait on 24 March 2023.[126]Around 23 March 2023, the claimant was informed by a telephone call that the appeal hearing was postponed due to illness of the panel member.[127]Mr Maloney was subsequently asked to chair the grievance appeal because Juliette Tait was leaving the Trust.[128]On 28 April 2023, Cathryn Buckley emailed the claimant about completing documentation for DSE assessments. Cathryn Buckley had returned to work in April 2023. Joanne Glynn had left the Trust in January 2023.[129]An ergonomic chair was ordered for the claimant, although we have no information as to when the order was placed. The lead time was beyond the claimant’s last day so the respondent cancelled the order.[130]The respondent made an attempt to send a chair to the claimant at home from the office, but it was the wrong one. The parties dispute whether an ergonomic chair was eventually sent to the claimant’s home. If it was, we have no information as to when it was sent.[131]On 31 May 2023 the claimant resigned by an email to Cathryn Buckley, giving a leaving date of 26 July 2023 (p.447). She wrote: “As you know I have been accepted for ill health retirement. I have decided to take this and wish to submit my 8 weeks resignation.” She also wrote: “I hope going forward the team continues to expand and improve. I have enjoyed the work and challenges within the role and I am now looking forward to having an improved work life balance. Good luck in your future career.” The claimant made no reference in her resignation letter to alleged breaches of contract by the respondent causing her to resign.[132]An appeal hearing against the grievance outcome was heard on 30 June 2023 by a panel chaired by Andrew Maloney. Notes of this hearing begin at page 485. During the meeting, the claimant said (p.490) that, if she was not in this position, she would not have resigned. She said she felt the Trust had not supported her disabilities.[133]Following the hearing, Andrew Maloney asked Joanne Smith to undertake some further enquiries with Cathryn Buckley as to why the claimant’s role required an on site presence. He requested more specificity but did not get much more.[134]The panel concluded that it was reasonable to agree a hybrid approach and decided not to uphold the grievance.[135]The outcome of the appeal was sent to the claimant on 29 September 2023 (p.498). The panel expressed the view that the original hearing panel could have asked more questions of management and conducted a more thorough investigation into the matters raised. However, they did not believe that this would have affected the outcome. The panel did not uphold the grievance, although they referred to some lessons to be learned and apologised to the claimant for the lack of flexibility from management which made it difficult for a formal resolution to be agreed.[136]As at the date of this tribunal hearing, we heard that some meetings have remained on Teams but others are now face to face only, with no remote option. Submissions[137]Mr Price provided brief submissions in writing, supplemented by oral submissions. Ms Veale provided lengthy written submissions and responded orally to submissions made by Mr Price.[138]We do not seek to summarise these submissions but deal with the principal arguments in our conclusions. Law Reasonable adjustments
Law
[139]Section 20 Equality Act 2010 (EQA) and Schedule 8 contain the relevant provisions relating to the duty to make adjustments. Schedule 8 imposes the duty on employers in relation to employees.[140]Section 20(3) imposes a duty comprising “a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”[141]Section 20(5) imposes a duty “where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.”[142]Paragraph 20 of Schedule 8 provides that an employer is not subject to a duty to make reasonable adjustments if the employer does not know and could not reasonably be expected to know that the employee had a disability and was likely to be placed at the relevant disadvantage.[143]Employees are not required to identify to their employer, at the relevant time, what adjustments should be made. The duty to make reasonable adjustments is an objective one which falls on the employer. However, in accordance with Project Management Institute v Latif [2007] UKEAT/0028/07, a claimant must identify, during the proceedings, the adjustment which they say would be reasonable. This may be something the claimant did not mention to their employer at the relevant time. Discrimination arising from disability (s.15 EQA)[144]Section 15 EQA provides: “(1) A person(a) (A) discriminates against a disabled person(b) (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.” Meaning of unfavourable treatment[145]Unfavourable treatment is analogous to being put at a disadvantage or being subjected to a detriment: Williams v The Trustees of Swansea University Pension & Assurance Scheme and another [2018] UKSC 65, paragraph 27. The correct approach to determining s.15 complaints[146]In Pnaiser v NHS England and anor [2016] IRLR 170 EAT, Mrs Justice Simler summarised the proper approach to determining s.15 claims at paragraph 31 of that judgment as follows: “(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. (b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a section 15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport [1999] IRLR 572. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises, contrary to Miss Jeram’s submission (for example at paragraph 17 of her Skeleton). (d) The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B’s disability”. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of section 15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of section 15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, 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) For example, in Land Registry v Houghton UKEAT/0149/14 a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The Tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact. (f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (g) Miss Jeram argued that “a subjective approach infects the whole of section 15” by virtue of the requirement of knowledge in section 15(2) so that there must be, as she put it, ‘discriminatory motivation’ and the alleged discriminator must know that the ‘something’ that causes the treatment arises in consequence of disability. She relied on paragraphs 26 to 34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her submission, and indeed paragraph 34 highlights the difference between the two stages - the ‘because of’ stage involving A’s explanation for the treatment (and conscious or unconscious reasons for it) and the ‘something arising in consequence’ stage involving consideration of whether (as a matter of fact rather than belief) the ‘something’ was a consequence of the disability. (h) Moreover, the statutory language of section 15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of section 15 would be substantially restricted on Miss Jeram’s construction, and there would be little or no difference between a direct disability discrimination claim under section 13 and a discrimination arising from disability claim under section 15. (i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a Tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant’s disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to ‘something’ that caused the unfavourable treatment.” Victimisation[147]Section 27 EQA defines victimisation as follows: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act.” When discrimination is unlawful[148]Section 39 EQA provides, amongst other things, that an employer must not discriminate against an employee by subjecting them to a detriment or by dismissing them (which includes constructive dismissal). Section 39(4) makes it unlawful for an employer to victimise an employee by, amongst other things, subjecting them to a detriment. Meaning of detriment[149]“Detriment” is not defined in the EQA. The EHRC Code of Practice paragraph 9.8 states: “Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage.” This is a low threshold. However, an unjustified sense of grievance is not enough: Shamoon v Royal Ulster Constabulary [2003] UKHL 11. Burden of proof[150]Section 136 EQA provides: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.” Time limits[151]Section 123 EQA provides that proceedings may not be brought after the end of the period of 3 months starting with the date of the act to which the complaint relates, or such other period as the employment tribunal thinks just and equitable. Section 123(3)(a) provides that conduct extending over a period is to be treated as done at the end of the period.[152]A failure to make a reasonable adjustment is generally discrimination by omission. Section 123(3)(b) provides that failure to do something is to be treated as occurring when the person in question decided on it.[153]In Ms M Fernandes v Department for Work and Pensions: [2023] EAT 114, HHJ Beard, in paragraph 16, distilled from existing authorities the following propositions relating to time limits and the duty to make reasonable adjustments: 153.1. “The duty to make an adjustment, under the statutory scheme, arises as soon as there is a substantial disadvantage to the disabled employee from a PCP (presuming the knowledge requirements are met) and failure to make the adjustment is a beach of the duty once it becomes reasonable for the employer to have to make the adjustment. 153.2. Where the employer is under a duty to make an adjustment, however, limitation may not begin to run from the date of breach but at a later notional date. As is the case where the employer is under a duty to make an adjustment and omits to do so there will be a notional date where time begins to run whether the same omission continues or not. 153.3. That notional date will accrue if the employer does an act inconsistent with complying with the duty. 153.4. If the employer does not act inconsistently with the duty the notional date will accrue at a stage where it would be reasonable for the employee to conclude that the employer will not comply, based on the facts known to the employee.” Constructive unfair dismissal[154]The law in relation to unfair dismissal is contained in the Employment Rights Act 1996 (ERA). Section 94(1) ERA provides that an employee has the right not to be unfairly dismissed by his employer. Section 95(1)(c) provides that an employee is to be regarded as dismissed if “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”[155]An employee will be entitled to terminate a contract of employment without notice if the respondent is in fundamental breach of that contract and the employee has not waived the breach or affirmed the contract by their conduct.[156]An implied term of an employment contract is the term of mutual trust and confidence. This is to the effect that an employer will not, without reasonable or proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee. Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Limited 1981 ICR 666, said that the tribunal must “look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.” ACAS Code of Practice on Disciplinary and Grievance Procedures[157]Section 207A Trade Union and Labour Relations (Consolidation) Act 1992 provides that certain awards may be increased or decreased by up to 25%, in the event of an unreasonable breach of the Code by an employer or employee respectively, where the Code applies to the relevant matter. Awards which may be adjusted in accordance with these provisions include a compensatory award for unfair dismissal and compensation for discrimination under the Equality Act 2010.[158]Relevant parts of the Code relating to handling grievances are: “33. Employers should arrange for a formal meeting to be held without unreasonable delay after a grievance is received.” “40. Following the meeting decide on what action, if any, to take. Decisions should be communicated to the employee, in writing, without unreasonable delay and, where appropriate, should set out what action the employer intends to take to resolve the grievance. The employee should be informed that they can appeal if they are not content with the action taken.” “42. Appeals should be heard without unreasonable delay and at a time and place which should be notified to the employee in advance.” “45. The outcome of the appeal should be communicated to the employee in writing without unreasonable delay.”
Conclusions
[159]Unless otherwise indicated, the conclusions are the unanimous conclusions of the Tribunal.[160]The only complaint in relation to which any submissions were made on time limit points was the complaint of failure to make reasonable adjustments in respect of PCP1: the requirement to work from the office at least two days per week. Mr Price made some brief submissions about time limits. We understand there to be no live time limit issue in relation to any of the other complaints. We will deal with the time limit issue when dealing with the complaint of failure to make reasonable adjustments relating to PCP1. Disability discrimination[161]We deal first with the complaints of disability discrimination.[162]The respondent had conceded that the claimant was disabled within the meaning in section 6 of the Equality Act 2010 and that her disabilities were cardio myopathy, type 2 diabetes and osteoarthritis. Reasonable adjustments[163]The respondent did not expressly concede the date from which they had knowledge of the claimant’s disabilities. We conclude that the respondent had knowledge of the claimant’s disabilities from no later than the OH report of March 2020. PCP1 The requirement that C work from the office at least two days per week[164]We consider first the merits of the complaints and then consider the time limits issue.[165]We conclude that the respondent applied this PCP consistently during relevant times. Even when “hybrid working” was referred to, this was understood by both sides within the context of 50/50 working i.e. a maximum of 50% of working time to be worked at home.[166]We conclude the claimant was put at disadvantage by the application of this PCP1, both because of Covid related risks and difficulty in attending the office due to mobility and fatigue issues.[167]We conclude that the respondent had knowledge that the claimant was likely to be placed at this disadvantage at all relevant times from what the claimant told them and from the OH reports.[168]The duty to make reasonable adjustments, therefore, arose.[169]The adjustment sought in relation to this PCP is “permitting the claimant to work from home on a permanent basis, i.e. using her home as a “base” but potentially travelling to meetings where needed if and when her health permitted”.[170]We consider that we can only consider the adjustment identified in the list of issues i.e. allowing working from home on a permanent basis (our emphasis). Ms Veale is correct in saying that the list of issues is a tool and a Tribunal does not have to follow this slavishly in all cases; it is not a pleading.[171]We accept that, in accordance with the authorities, there may be circumstances in which a Tribunal can depart from the adjustment as set out in the list of issues, particularly where the claimant is not legally represented and the parties are given an opportunity to address the reframed adjustment. We do not, however, consider that this is one of the cases where we can divert from the adjustment as set out in the list of issues.[172]The pleaded case, submitted when the claimant was not legally represented, did not identify the issues, including the adjustments sought, in the way that needed to be done for a list of issues. The pleaded case adopted a narrative approach. The identification of the PCP and the adjustment sought was done during the case management process, by which time the claimant was legally represented. In accordance with Project Management Institute v Latif, a claimant must identify, during the proceedings, the adjustment which they say would be reasonable. This may be something the claimant did not mention to their employer at the relevant time. However, in this case, the adjustment in the list of issues does reflect the adjustment sought on a consistent basis by the claimant during internal processes, with the one exception of the addition made to the grievance in May 2022. However, in the internal processes subsequently, it was clarified with the claimant that she was seeking a permanent change to her working base, to working from home.[173]There were three case management hearings prior to the final hearing. The claimant was legally represented at all of these hearings; at the first two by her solicitor and at the third by Ms Veale. The reasonable adjustment in the final list of issues is exactly the same as it has been since the list drawn up at the preliminary hearing on 22 May 2023. The list of issues was revisited on a number of occasions since then, most recently on the first day of this final hearing. No change to this identified adjustment was sought prior to a suggestion in Ms Veale’s closing submissions that the Tribunal was free to consider alternative adjustments, if we were not satisfied that the adjustment on a permanent basis was reasonable. We do not consider it would be fair, in these circumstances, to decide that the respondent had failed in its duty to make reasonable adjustments, on the basis of any other type of adjustment e.g. allowing the claimant to work temporarily at home, whilst the risk of Covid infection was still significant, with the arrangement to be reviewed at intervals, with the possibility of requiring some return to the office when the risk had reduced.[174]We next considered whether it was reasonable to fail to make the adjustment of allowing a permanent change. The Tribunal did not reach a unanimous conclusion on this issue.[175]The conclusion of the majority (Employment Judge Slater and Ms Metcalfe) was that the respondent did not fail to make a reasonable adjustment by not allowing a permanent change. The minority (Dr Tirohl) concluded that there was a failure to make a reasonable adjustment by not allowing a permanent change.[176]The reasoning of the majority on this issue is as follows.[177]The majority concludes that the adjustment of a permanent change was not a reasonable adjustment in the circumstances. The recommendations for the claimant to work from home if possible were largely on the basis of increased risk to her of contracting Covid. The most recent report we were shown, with the most detailed assessment and recommendations, in October 2022 (p.415) recommends working from home if feasible because of this risk. It does not say that, if Covid was not prevalent, the claimant would not be able to work in the office at least some of the time with suitable adjustments e.g. flexible working hours and breaks. This suggests to us that, absent the Covid risk, the claimant would be able to attend the office at least some of the time. Although there are some references in reports to deterioration in the claimant’s health, these are not specific and do not say that the deterioration is such that the claimant can no longer attend the office at all. Before the Covid pandemic, the claimant had attended the office full-time, other than occasional days working from home with the agreement of her manager. The medical information does not, therefore, support that the claimant needed a permanent change to working from home. The fact that the claimant said she could attend some face to face meetings also supports our view that the claimant could attend the office at times.[178]We accept that the claimant had difficulties in attending the office due to her disabilities. If all parts of the claimant’s job could be done entirely from home without any impact on the service, then the majority would have concluded that it would have been a reasonable adjustment to allow her to work from home on a permanent basis. However, we have found that, as the Covid risk diminished, more face to face meetings would be required, in the office and externally. An extreme example of needing someone to work on site was the Edenfield situation. There were benefits to be had from the claimant working in the office aside from formal face to face meetings once the Covid risk had diminished so that the claimant would not be sitting isolated in a sole occupancy room when she did attend the office. Informal interaction with colleagues was likely to benefit the effectiveness of the service. There were occasions, even if these were rare, when someone would want to raise a safeguarding issue in person to someone in the office, rather than by email or on Teams.[179]Once Covid risks were low, these benefits to the service would outweigh the disadvantages to the claimant in having to attend the office part of the time. The majority concludes that it would not have been a reasonable adjustment to agree a permanent change to home working, with the claimant potentially travelling to meetings where needed if and when her health permitted.[180]The minority (Dr Tirohl) concludes that there was a failure to make a reasonable adjustment by not agreeing a permanent change to home working for the following reasons.[181]Cathryn Buckley refused the request from the outset and persisted in this position. This continued to form the perspective that the claimant could not work from home permanently. No-one turned their mind to objectively assessing whether the claimant could work 100% from home. This was not done contemporaneously or during this hearing. There were few, if any, documents to support the respondent’s position. The grievance and appeal chairs decided to prefer Cathryn Buckley’s evidence despite the lack of concrete information. A manager (Joanne Glynn) provided the most effective measure we have of the opposite position.[182]Dr Tirohl cannot find that it was not a reasonable request to work permanently from home with occasional meetings in person once risk assessed. Working from home is specified in the July report. The October report stresses working from home if this is feasible. It sets strict criteria for working in the office, some of which the respondent had already failed to do; nor did it go forward to do so in the case of the risk assessment. The respondent is selective in its reading of the reports in terms of what it does do and, although it is entitled to take OH as ‘guidance,’ it has not accounted for its selectivity in relation to the dangers faced by the claimant. Witnesses were asked to account for the lack of risk assessment. In particular, Dr Tirohl is struck by how the respondent passed over the recommendations at the top of p.417 that even gave the respondent a link to follow.[183]Although we might feel Covid has gone or would go away or become less dangerous, this can only be the case for those who lack the claimant’s vulnerabilities; Covid is a persistent risk to those who are compromised in some way.[184]There was no investigatory officer to do an objective assessment during the grievance, although Dr Tirohl realises this is not compulsory. The outcome does not balance what the respondent said was operationally feasible, or unfeasible, against a risk assessment specific to the claimant. Steven Morley, Ben Moody and Andrew Maloney failed to carry out this balancing exercise. They took Cathryn Buckley’s word for the unfeasibility of working from home. This was not evidenced during the grievance process and it was insufficiently evidenced during the hearing.[185]Even if we accept that work is sometimes done in person; there is no reason that the claimant must be the one to do the work required to be done in person; other people work there and others may find their tasks are modified as a result of working with a disabled person. We heard insufficient evidence on this.[186]The test as to whether the respondent failed to make a reasonable adjustment is objective and this has not been the respondent’s approach. There is very little evidence from the respondent even now to equip us to balance the information to say it was unreasonable for the claimant to work permanently from home.[187]For these reasons, the minority (Dr Tirohl), concludes that the respondent failed to make a reasonable adjustment by not permitting the claimant to work from home on a permanent basis.[188]The Tribunal unanimously concludes that the Tribunal has jurisdiction to consider this complaint of failure to make reasonable adjustments.[189]The Tribunal concludes that time started to run on 6 May 2022 when the claimant was informed that Cathryn Buckley would not agree to her working from home as she felt the claimant could not complete her role by not doing face to face meetings. Although there was confusion about what process was being used, we consider that the respondent positively decided at this point not to make the adjustment sought. In accordance with section 123(3)(b) EQA, a failure to do something is to be treated as occurring when the person in question decided on it. We conclude this was the case on 6 May 2022. This complaint was presented outside the normal time period, ACAS early conciliation having started more than 3 months beginning with 6 May 2022, on 8 September 2022. The early conciliation period does not, therefore, extend the primary time limit. The claim was presented on 2 November 2022, after the period of 3 months beginning with 6 May 2022.[190]We consider, however, that it would be just and equitable in all the circumstances to extend time to allow this complaint to be considered. Understanding when time starts to run in complaints of failure to make reasonable adjustments tests even experienced legal representatives and judges. This complexity and the confusion over processes and the claimant’s pursuit of her grievances, going beyond the date when her first claim was presented, provide circumstances causing us to conclude that it is just and equitable to extend time. PCP2 The requirement that the claimant hot desk when working in the office[191]This PCP relates only to office working. The adjustment sought is to provide the claimant with the necessary auxiliary aids, namely a specially adapted chair, a screen guard, a foot rest, and a wrist rest.[192]We conclude that this PCP was applied until the grievance hearing on 7 December 2022 when management said, for the first time, that the claimant would have a room for her sole occupancy which would not be used for anyone else when she was not in the office. PCP2 was not applied after this time. Although the claimant had not returned to the office during this period, it was made clear, prior to 7 December 2022, that PCP2 would be applied when she returned to the office.[193]We accept that the application of PCP2 could put the claimant at some disadvantage, when she was working in the office in that it would be more difficult to ensure the claimant had her necessary equipment at the start of each working day. We do not consider it would not be possible to meet her need for auxiliary aids as the disadvantage as framed asserts e.g. the chair and other aids could be placed in an agreed place, labelled for her sole use.[194]If the claimant had attended the office during the period when the PCP was applied, we accept she would have been at a disadvantage in the office without the auxiliary aids. However, the claimant was not attending the office at relevant times and it was not the lack of these aids in the office which was preventing the claimant from returning to the office. We conclude she was not put at a disadvantage by the lack of these aids in the office.[195]We conclude, unanimously, for these reasons, that the complaint relating to PCP2 is not well founded. Lack of auxiliary aids[196]We accept that lack of the auxiliary aids, recommended in the DSE assessment (a specially adapted chair, a screen guard, a foot rest and a wrist rest) would put the claimant at a substantial disadvantage in the sense of the disadvantage being more than minor or trivial.[197]For the same reasons as in relation to PCP2, we conclude that the claimant was not put at a more than minor or trivial disadvantage by lack of auxiliary aids in the office. The aids had been provided before the Covid lockdown. The fact that the aids went missing in the office does not put the claimant at a disadvantage in relation to lack of auxiliary aids in the office, because she was not attending the office and lack of these aids did not prevent the claimant returning to the office.[198]The claimant has not satisfied us she was at a disadvantage by lack of auxiliary aids at home. We found she did not complain for two years about lack of this equipment while working at home. The home assessment checklist in March 2022 said no action was required and the work environment at home was suitable. The claimant has not specifically identified what in her home set up, using the desk she had purchased, put her at a disadvantage.[199]We conclude, unanimously, for these reasons, that the auxiliary aids complaint is not well founded. Victimisation[200]The respondent conceded that the claimant did the protected acts set out at paragraph 13 of the list of complaints and issues. These are: 200.1. The grievance of 5 April 2022. 200.2. The grievance of 26 August 2022. 200.3. The Tribunal claim presented on 2 November 2022. 200.4. The appeal against the grievance outcome of 9 January 2023.[201]In relation to each complaint of victimisation, we need to consider whether the claimant has proved the facts relied upon, in terms of the treatment relied on having occurred, whether this was detrimental treatment and whether one or more of the protected acts was at least a material factor in the respondent subjecting the claimant to the detrimental treatment.[202]Although we deal with each complaint individually, there was a fundamental problem with causation in relation to all the complaints of victimisation where we found that the alleged detrimental treatment had happened as a matter of fact. We did not consider that Ms Veale identified in her written or oral submissions any facts from which we could conclude that the detrimental treatment was because of one or more of the protected acts. In her written submissions, Ms Veale appeared to come close to making a Jhuti type argument that Cathryn Buckley’s alleged victimising motive influenced others to subject the claimant to the detrimental treatment. Ms Veale clarified, in oral submissions, that she was not making such an argument, accepting that we needed to examine the reasons the decision maker had for making the relevant decision. We are not applying a “but for” test. The fact that the treatment would not have arisen but for one or more of the protected acts does not satisfy the need to prove facts from which we could conclude that the treatment was because of the protected act; it merely shows that the protected act provides the context or background to the detrimental treatment. Alleged detrimental treatment 14.1 Failing to properly consider her grievances.[203]Steven Morley heard the management case and gave the claimant an opportunity to put her arguments. Steven Morley evaluated the information before him and came to a conclusion.[204]A defect in the process, subsequently identified at the appeal hearing, was that Steven Morley did not enquire, before reaching his conclusion, into the evidence for Cathryn Buckley’s assertions that there were face to face meetings happening that the claimant would have been required to attend, and that others were having to attend in her place.[205]We conclude, for this reason, that the respondent did not properly consider the claimant’s grievance at the hearing on 7 December 2022. We conclude that this was detrimental treatment.[206]Ms Veale relied, in her submissions, on Cathryn Buckley regarding the allegations in the grievance as illegitimate and presenting a slanted picture of the claimant’s role and the requirement for her physical presence to Steven Morley. She submitted that Steven Morley failed to apply an independent mind to the evidence, preferring Cathryn Buckley’s evidence at the grievance hearing to that of the claimant. This is simply a restatement of the detrimental treatment which we do not consider sheds any light on Steven Morley’s motivation for accepting the management case so uncritically. We do not consider that these facts are capable of proving that Steven Morley’s failure to properly consider the claimant’s grievance was, at least to a material degree, because the claimant had done one or more of the first three protected acts.[207]We do not consider that the claimant has proved facts from which we could a protected act. For this reason, we conclude that the complaint is not well founded. 14.2 Failing to provide the claimant with the notes or details of any meetings which might have been carried out pursuant to any grievance investigation.[208]There was no grievance investigation so there was no failure to provide notes or details of meetings carried out in relation to this investigation.[209]For this reason, we conclude that allegation 14.2 is not well founded. 14.3 Failing to provide the claimant with a copy of or any details of any grievance investigation report.[210]There was no grievance investigation report so there was no failure to provide a report or details of a report. We conclude that allegation 14.3 is not well founded. 14.4 Failing to deal with the claimant’s grievance in a timely manner.[211]We conclude the respondent failed to deal with the grievance in a timely manner. Mr Maloney described the delay as extraordinary. We conclude this was detrimental treatment because the claimant was continually having to deal with this and suffering increased stress and anxiety as a result.[212]However, we do not consider that the claimant has proved facts from which we could conclude that a material reason for this treatment was that the claimant had done a protected act.[213]We disagree with Ms Veale’s submission that the extraordinary delays in the grievance process are enough to conclude, in the absence of an alternative explanation, that the delay was because of a protected act. In oral submissions, to the extent that Ms Veale was suggesting disbelief of the claimant was a factor from which we could conclude facts proving victimisation, we do not agree. If the reason for delaying (or any other detrimental treatment) was disbelief of the claimant, this is not something which suggests treatment because the claimant has done a protected act, but rather treatment because of a suspicion of dishonesty.[214]We conclude that the claimant has not proved facts from which we could conclude that a material reason for the delay was that the claimant had done one or more of the protected acts.[215]If the burden of proof had passed, we would have concluded that the respondent had identified reasons, which were not the protected act, for their delays. These included their confusion as to which policies and processes were applicable, given the claimant had made both a Flexible Working Request and submitted a grievance in relation to the same matters, illustrated by the email correspondence querying what grievance the claimant is referring to, after the outcome of the 21 July 2022 meeting (see paragraph 71). This is no criticism of the claimant’s attempts to resolve matters.[216]We conclude, for these reasons, that allegation 14.4 is not well founded. 14.5 Refusing to uphold the claimant’s grievance.[217]The respondent did not uphold the grievance. If the grievance was without merit, this would not be detrimental treatment. We consider that the respondent should have decided, at this time, when Covid infections were still high, that the claimant, because of her vulnerability, should have been allowed to work at home on a temporary basis, to be reviewed in the light of future developments in relation to prevalence of Covid. There was no compelling evidence that the claimant could not continue to work from home without this having a serious impact on the business at this stage. We conclude that the claimant was subjected to detrimental treatment by the failure to uphold her grievance.[218]Ms Veale relied in submissions on the influence of Cathryn Buckley on Steven Morley’s decision and Steven Morley accepting the evidence of Cathryn Buckley at the hearing without any examples of detrimental impact on the business being given. We do not consider this proves facts from which we could conclude that Steven Morley’s decision not to uphold the grievance was, to a material extent, because the claimant had done one or more of the protected acts.[219]We conclude that the claimant has not proved facts from which we could a protected act.[220]We conclude, for these reasons, that allegation 14.5 is not well founded. 14.6 Failing to deal with the claimant’s grievance appeal in a timely manner.[221]The respondent failed to deal with the grievance appeal in a timely manner. The appeal was submitted in January 2023 and not heard until June 2023, with the outcome notified to her in September 2023. We conclude this was detrimental treatment. Although the claimant submitted an application for IHR around the same time as the appeal, had the appeal been heard in a timely manner and it had gone in her favour, she had the possibility of remaining employed and not taking IHR. We consider the loss of that possibility to be detrimental treatment even though, after her resignation, the appeal went against her.[222]Ms Veale’s submissions rely on an asserted lack of good reason for the delay as the basis for arguing that the claimant has satisfied the initial burden of proof. This, however, brings into play the respondent’s explanation for the delay which we must put to one side when considering whether the claimant has satisfied the initial burden of proof.[223]We conclude that the claimant has not proved facts from which we could a protected act.[224]We conclude, for these reasons, that allegation 14.6 is not well founded.[225]Had the burden passed, the respondent would have satisfied us that the delay was due to illness of the relevant manager in March and then the identification and appointment of a replacement, when Juliette Tait was due to leave the Trust. The delay in the outcome was due to enquiries made to Cathryn Buckley by Joanne Smith, although, in the event this did not turn up any useful information. If the claimant had proved facts from which we could have concluded that there was victimisation, we would have concluded that the complaint was not well founded because of this explanation for the delay. The explanation does not have to be a “good” reason to be a non-discriminatory reason, even if the respondent’s reasons were regarded as not “good” reasons. 14.7 Refusing to uphold the claimant’s appeal.[226]The respondent refused to uphold the claimant’s appeal. By the time they refused her appeal in September 2023, the claimant had left the Trust so we conclude this was not detrimental treatment; she was not put at any disadvantage by the refusal. For this reason, the complaint fails. However, we go on to consider what we would have decided in relation to other parts of the test.[227]We would not have concluded that the claimant had proved facts from which we could conclude that a material reason for refusing to uphold the appeal was that the claimant had done a protected act. We disagree with Ms Veale’s submission that Mr Maloney accepting Cathryn Buckley’s evidence as to the need for the claimant’s physical presence in the office was correct. Mr Maloney did attempt, through Joanne Smith, to get further information, although no useful information was obtained. He needed to make a decision on the basis of the information available to him. We do not consider that his preference for the evidence of Cathryn Buckley, the relevant manager, over that of the claimant on this point, is sufficient to prove facts from which we could conclude that the refusal of the appeal was because of one or more of the protected acts.[228]We conclude, for these reasons, that allegation 14.7 is not well founded. 14.8 Sending the claimant for an unreasonable number of Occupational Health appointments (5 from April to September: in April, June, July, August and October 2022).[229]The April OH referral was made by Joanne Glynn on 28 March 2022 in relation to the claimant’s request to continue to work from home. We conclude it was not unreasonable to make an OH referral in these circumstances.[230]The referral made on 17 June 2022 for the 30 June assessment was made by Cathryn Buckley. The claimant had been on sick leave since 4 April 2022 but was stating an intention to return to work on 18 July 2022. The referral was to get information about her fitness to return and any adjustments required. We conclude it was not unreasonable to make an OH referral in these circumstances.[231]The 30 June 2022 OH assessment said the claimant was not fit for work and suggested a review in 4 weeks.[232]The referral made on 4 July 2022 was made in circumstances where the claimant was still saying she intended to return to work on 18 July but the previous assessment had said she was not fit for work and had suggested a review in 4 weeks. We conclude it was not unreasonable to make an OH referral in these circumstances.[233]That referral resulted in the 19 July 2022 report. This said the claimant was unfit to work in the office, the situation was unlikely to change but the claimant was fit to attempt a return to work provided she worked from home.[234]The 25 July 2022 referral was made by Cathryn Buckley. This followed the 21 July 2022 meeting. The referral required a face to face consultation. If the respondent had concerns about conflicts in previous reports, they could have asked questions of the adviser. We consider it was unreasonable to require another OH assessment so soon after the previous report.[235]On 26 September 2022, Joanne Glynn made a referral resulting in the October report. The reason for the referral was to carry out a home working risk and safety assessment. We consider it was reasonable to make this referral.[236]The only referral we consider unreasonable is the 25 July 2022 referral. This was detrimental treatment, having to attend in person with difficulties parking and requiring the claimant to repeat, yet again, details about her health conditions.[237]Ms Veale’s submissions did not identify any facts from which we could conclude that the 25 July 2022 referral was made because of one or more of the protected acts.[238]We conclude that the claimant has not proved facts from which we could conclude that a material reason for the referral on 25 July 2022 was that the claimant had done a protected act.[239]We conclude that the complaint in allegation 14.8 is not well founded. 14.9 On 21 July 2022 in a meeting Clair Carson required the claimant to attend face to face Occupational Health meetings.[240]On 25 July 2022 a referral to OH was made by Cathryn Buckley. This followed the 21 July 2022 meeting. The referral required a face to face consultation. We conclude this was detrimental treatment for the reasons explained in relation to allegation 14.8.[241]Ms Veale relies, in submissions, on Clair Carson knowing about the claimant’s Facebook posts as facts from which she submits we could conclude that the referral was, to a material extent, because the claimant had done protected acts. From her witness statement, Clair Carson had doubts, because of the Facebook posts, about the truth of what the claimant was saying in her flexible working request about being too unwell to work on site and at high risk of infection. This could suggest motivation because of a view of the claimant as being untruthful. It does not, however, in our view, prove facts from which we could conclude that a material reason for the referral on 25 July 2022 was that the claimant had done a protected act.[242]We conclude that the complaint in allegation 14.9 is not well founded. 14.10 Threatening/suggesting in a meeting of 21 July 2022 that the respondent would revoke the agreement that the claimant could work compressed hours of ten days over nine.[243]This complaint fails as a matter of fact. We were not satisfied there was a threat of revoking this arrangement.[244]We conclude that the complaint in allegation 14.10 is not well founded. 14.11 On 1 September 2022 and reiterated on 25 and 27 October 2022, the respondent threatening that the claimant be placed on a redeployment register for 12 weeks.[245]This complaint fails as a matter of fact. We found that redeployment was referred to on 27 October 2022 but we were not satisfied it was referred to on previous occasions. We also did not find that it was a threat made to the claimant; it was an option presented to the claimant, with attendant risks identified.[246]We conclude that the complaint in allegation 14.11 is not well founded.[247]In summary, we conclude that none of the complaints of victimisation are well s.15 unfavourable treatment arising from disability[248]The respondent did not expressly concede the date from which they had knowledge of the claimant’s disabilities. We conclude that the respondent had knowledge of the claimant’s disabilities from no later than the OH report of March 2020.[249]In relation to these complaints, we must consider whether the matters alleged at 19.1-19.4 of the list of issues arose in consequence of the claimant’s disability.[250]We must then consider whether there was unfavourable treatment as alleged.[251]If there was, we will then consider whether the claimant has proved facts from which we could conclude that the unfavourable treatment was because of a “something arising”. The claimant bears an initial burden of proving facts from which we could conclude that the unfavourable treatment was because of a “something arising”.[252]If the claimant satisfies the initial burden of proof, the burden passes to the respondent to prove that the unfavourable treatment was not because of the “something arising”. We will consider whether the respondent has proved that the unfavourable treatment was not because of a “something arising”.[253]If the Tribunal concludes that there was unfavourable treatment because of “something arising” in consequence of disability, we will consider whether the respondent has shown that the unfavourable treatment was a proportionate means of achieving a legitimate aim. If so, the respondent has a defence to the complaint. The something arising in consequence of the claimant’s disability 19.1 The claimant’s need to be able to work from home and inability to attend the office daily[254]We conclude that this did arise in consequence of the claimant’s disability. It was because of her various conditions that the claimant had difficulty attending the office, both because of the risk of Covid infection at the time and because of mobility issues. 19.2 The claimant’s need for adjustments to be able to perform her work, including those recommended by Occupational Health[255]We conclude that this did arise in consequence of the claimant’s disability. The claimant was seeking the adjustments to where she did the work because of the health issues due to her disability. 19.3 The claimant’s request for auxiliary aids to allow her to attend the office[256]We conclude that this did arise in consequence of the claimant’s disability. The auxiliary aids were recommended because of issues related to her disabilities. 19.4 The claimant’s inability to attend in-person meetings/need for meetings to be held virtually[257]The claimant was saying she could attend some in person meetings if the conditions were suitable and her health allowed. We conclude it was difficult for the claimant to attend in person meetings, but not impossible. We conclude that she did not have an inability to attend in person meetings. We do not, for this reason, conclude that there was such an inability which arose in consequence of her disability. The unfavourable treatment 18.1 Ms Glynn (“JG”) making a veiled threat of redeployment during the grievance meeting.[258]This fails as a matter of fact. We found that redeployment was referred to by Joanne Glynn on 27 October 2022. We did not find that it was a threat made to the claimant; it was an option presented to the claimant, with attendant risks identified.[259]We conclude the complaint relating to allegation18.1 is not well founded.18.2 Failing to take account of all relevant occupational health reports.[260]We conclude that the respondent did not take into account the 19 July 2022 report in that they did not act on its recommendations (that the claimant was only fit to work from home) and decided to obtain a further report. We conclude that failure to take that report into account was unfavourable treatment because, had they taken it into account and acted on it, the claimant would have been allowed to continue working from home on a 100% basis.[261]We are not satisfied the respondent failed to take account of other relevant occupational health reports.[262]The claimant must prove facts from which we could conclude that this unfavourable treatment was because of the relevant “something arising”[263]We conclude that the claimant has proved facts from which we could conclude that this unfavourable treatment was because of the claimant’s need to work from home and/or her need for adjustments to be able to perform her work.[264]We rely on the following matters as satisfying this initial burden of proof. Cathryn Buckley refused the request for the claimant to continue working from home from the outset and persisted in this position. The claimant’s request did not fit with the respondent’s general plan for staff to return working in the office at least 50% of the time. Clair Carson also, from the start, was very discouraging of any possibility of exceptions to the general plan (see paragraph 38). It does not appear that any of the respondent’s managers turned their mind to objectively assessing whether the claimant could work 100% from home. The claimant’s need to work from home was supported by the 19 July 2022 report yet the respondent decided to obtain another report in quick succession to that report, which suggests they were hoping for a different opinion. They did not ask questions of the OH adviser who had given the 19 July 2022 report but, instead, sought a new report. The report they did not act on said the claimant had to work from home and the situation was unlikely to change.[265]The respondent’s explanation, from the outcome letter and Clair Carson’s evidence, does not discharge the burden of proving the disregarding of the July report by getting another report in quick succession, and with a face to face assessment, was not because of the claimant’s need for adjustments and/or to be able to work from home. We conclude this was less favourable treatment because of something arising in consequence of disability.[266]We conclude this treatment was not a proportionate means of achieving the aims set out in paragraph 21 of the list of complaints and issues i.e. attending face to face meetings both internally and externally; providing face to face support as a key member of the respondent’s Corporate Safeguarding Team; and deputizing for the Adult Safeguarding lead. We are not clear how not acting on that report and getting another is a way of achieving those aims. Even if it was, a more proportionate way of achieving this would have been to ask questions of the OH adviser who had produced the July report.[267]We conclude that the complaint of s.15 discrimination relating to the allegation at 18.2 is well founded. 18.3 Referring to an out of date homeworking deal.[268]We conclude this complaint fails on its facts. We have not found that the respondent referred to an out of date homeworking deal. 18.4 Threaten/suggest in a meeting of 21 July 2022 that the respondent would revoke the agreement that the claimant could work compressed hours of ten days over nine.[269]We conclude this complaint fails on its facts. We did not find that this occurred as alleged. 18.5 Excessive telephone calls and excessive emails by Cathryn Buckley (CB) to the claimant from 23 August to 1 September 2022.[270]We were not satisfied that the claimant was called by Cathryn Buckley three times on 23 August 2022 as alleged by the claimant in her witness statement. There was one call by Teams on that date. The claimant’s note on p.821 does not suggest to us 3 calls made on that day. The entry is in red, which we had been told indicates an entry not made at the time. It also more naturally reads as referring to 3 calls over a period while she was off sick.[271]We are not satisfied on the facts there were excessive calls and emails from Cathryn Buckley to the claimant in the period 23 Aug to 1 Sept 2022.[272]We conclude that this complaint fails on its facts. 18.6 CB’s comment to the effect of “you’ve had this ages so what’s changed?” during the conversation of 23 August 2022.[273]Both parties agree the comment was made.[274]The first issue is whether the claimant was subjected to unfavourable treatment by this comment. Unfavourable treatment is analogous to being put at a disadvantage or being subjected to a detriment.[275]In accordance with their finding of fact that the claimant was not upset by the comment at the time (see paragraph 78) a majority of the Tribunal (Employment Judge Slater and Ms Metcalfe) conclude that there was no unfavourable treatment. There is no other disadvantage suggested. For this reason alone, the majority find that this complaint fails.[276]The minority (Dr Tiroh) concludes that the claimant was subjected to unfavourable treatment by this comment. Dr Tirohl’s reasons are as follows.[277]Dr Tirohl does not believe Cathryn Buckley’s motivations were ‘explorative’ and the way this is phrased implies is she was exasperated. Although the claimant did not report her distress at the time, Dr Tirohl accepted her evidence that she was hurt and upset by the comment (paragraph 31 of the claimant’s witness statement). The respondent produced no contemporaneous evidence as to what led to the comment. In oral evidence, Cathryn Buckley was not convincing as to her motivation. The claimant reports at the time that Cathryn Buckley is passiveaggressive, albeit in the context of other behaviour. This comment was consistent with this other reported behaviour and with the evidence of Cathryn Buckley that, in July 2022, Cathryn Buckley thought the claimant could be exaggerating her symptoms (see paragraph 62).[278]Although the majority decision that there was no unfavourable treatment in relation to this comment means the complaint fails (by a majority), the Tribunal went on to consider what it would have decided in relation to causation and justification, if the Tribunal had unanimously, or by a majority, decided that there was unfavourable treatment.[279]The Tribunal unanimously concluded that the claimant had proved facts from which the Tribunal could conclude that the comment arose because of the claimant’s need to be able to work from home and inability to attend the office daily (the “something arising” at 19.1) and the respondent has not proved that it was not because of this something arising. The claimant was saying that she could not go into the office daily. The comment was questioning this. The Tribunal unanimously concluded that, if they had concluded this was unfavourable treatment (which the majority did not), the respondent would not have satisfied the Tribunal that making the comment was a proportionate means of achieving one or more of the legitimate aims relied upon: attending face to face meetings both internally and externally; providing face to face support as a key member of the respondent’s Corporate Safeguarding Team; and deputizing for the Adult Safeguarding lead.[280]By a decision of the majority (Employment Judge Slater and Ms Metcalfe) this complaint is not well founded. 18.7 Repeated requests by CB for the claimant to return to work in the office, in particular: 18.7.1 CB instructing the claimant to return to work in the office via a Teams meeting on 23 August 2022.[281]The email following the Teams meeting on 23 August 2022 (311) is written on the basis that the claimant would be returning to work in the office at least some of the time. We conclude this was unfavourable treatment because the claimant had invoked the status quo pending the outcome of her grievance and Cathryn Buckley was disregarding this by her requests for the claimant to return to work in the office.[282]We conclude that the claimant has proved facts from which we could conclude that this unfavourable treatment arose because of the claimant’s need to be able to work from home and inability to attend the office daily, which we have concluded arose in consequence of her disability. The claimant was asking to work from home because of this need. There was occupational health advice supporting her request. The claimant had a relevant outstanding grievance and had invoked the status quo pending the outcome of that grievance. The burden passes to the respondent to satisfy us that Cathryn Buckley’s requests were not, in any material way, because of the something arising. The respondent has not satisfied us that Cathryn Buckley’s requests/instructions were not in any material way because of the something arising.[283]The complaint will, therefore, succeed unless the respondent can show that the actions of Cathryn Buckley were a proportionate means of achieving a legitimate aim. The aims relied on were(a) attending face to face meetings both internally and externally;(b) providing face to face support as a key member of the respondent’s corporate safeguarding team; and(c) deputizing for the Adult Safeguarding Lead. We conclude that these were all legitimate aims. However, the respondent has not satisfied us that Cathryn Buckley’s instructions at that time were a proportionate means of achieving one or more of those aims. The claimant’s grievance was ongoing. The respondent has not provided us with evidence, save in relation to the Edenfield incident, that face to face meetings had resumed to an extent that the claimant needed to be working at least part of the time in the office to be able to meet this need. The claimant had successfully worked from home since March 2020. The claimant had said she could attend some face to face meetings, travelling from a base at home, under certain circumstances. The respondent has not satisfied us that this situation could not have continued in August 2022. We conclude that the respondent has not discharged the burden on them of proving that the instruction on 23 August 2022 to return to work in the office was a proportionate means of achieving a legitimate aim. This complaint, therefore, succeeds. 18.7.2 CB making a Teams call to the claimant at around 10 a.m. on 23 August 2022 requesting that she attend the office the following morning for a return to work interview.[284]We conclude that making this request in the Teams call was not unfavourable treatment. The claimant was not put at any disadvantage by such a request being made. This complaint, therefore, fails. 18.7.3 CB instructing the claimant to return to work in the office via an email on 24 August 2022.[285]We conclude that this complaint fails on its facts. In this email, Cathryn Buckley was not instructing the claimant to return to work in the office but to attend the office for a meeting. 18.7.4 CB requesting that the claimant attend the office and describe this as a “reasonable management request” on 24 August 2022.[286]We conclude that calling this a reasonable management request is not unfavourable treatment but requiring the claimant to attend on a day when her chosen TU representative, who had been involved in discussions up to that point, is not going to be available to give her advice, is unfavourable treatment. The meeting was to involve some discussion of reasonable adjustments, a matter with which the claimant’s union representative had been closely involved.[287]We conclude that the claimant has proved facts from which we could conclude that the unfavourable treatment arose because of the claimant’s need to be able to work from home and inability to attend the office daily, which we have concluded arose in consequence of her disability. We rely on the following matters as satisfying this initial burden of proof. Cathryn Buckley refused the request for the claimant to continue working from home from the outset and persisted in this position. The request to attend the office for a meeting, rather than having a meeting by Teams, was consistent with this position of trying to get her back in the office. Although the meeting was to include discussion of reasonable adjustments, a matter which Cathryn Buckley knew the claimant had been getting advice on from her union representative and the claimant had said she wanted to get advice before the meeting with Cathryn Buckley, Cathryn Buckley was insisting that she have the meeting before the union representative returned a few days later. Cathryn Buckley gave no reason why the meeting could not be delayed until the union representative returned a few days later.[288]The respondent has not satisfied us that Cathryn Buckley’s motivation to require her to attend the meeting when her union representative was not available was not, at least to a material extent, because of the claimant’s need to be able to work from home and inability to attend the office daily. We do not consider that Cathryn Buckley satisfactorily explained her expressed view that the claimant did not need advice from her trade union before attending the meeting, given that Cathryn Buckley had told the claimant the meeting was to include discussion of reasonable adjustments.[289]The complaint will, therefore, succeed unless the respondent can show that the actions of Cathryn Buckley were a proportionate means of achieving a legitimate aim. The same aims are relied on as in relation to complaint 18.7.1. We concluded that these were legitimate aims. The respondent has not satisfied us that Cathryn Buckley requiring the claimant to attend the meeting on a day when her union representative was not present was a proportionate means of achieving any of these aims. The meeting could have been postponed for a further few days, until the union representative was available to attend with the claimant. We conclude that this complaint succeeds. 18.7.5 CB instructing the claimant to return to work in the office via an email on 25 August 2022[290]We found this was a request about the meeting, not an instruction to return to work in the office. This complaint fails on its facts. 18.7.6 CB instructing the claimant to return to work in the office via an email on 26 August 2022[291]The claimant has not referred us to an email of 26 August 2022. She has not proved the facts on which she relies so this complaint fails. 18.8 Threatening that the claimant be placed on the redeployment register for 12 weeks then dismissed if she did not find another job during that time on 1 September 2022. The claimant avers that Joanne Glynn informed her that this instruction had been given by Clair Carson and that this threat was reiterated by Joanne Glynn on or around 25 October 2022 and 27 October 2022[292]We conclude that this complaint fails on its facts. We did not find that the claimant was threatened with being placed on the redeployment register then dismissed. Joanne Glynn mentioned redeployment as an option, explaining the risk it came with. She did not threaten the claimant with being placed on the register (see para 99). 18.9 Constructively dismissing the claimant[293]This is a complaint under s.39 EQA that the claimant was constructively dismissed. The conduct relied on as entitling the claimant to terminate the contract without notice (even though the claimant did give notice) must be acts of disability discrimination. Only complaints of discrimination which we have upheld can potentially contribute to a fundamental breach of contract for the EQA complaint.[294]The complaints of disability discrimination which we concluded were well founded were those at 18.2, 18.7.1 and 18.7.4 of the list of issues, in whole or in part. The parts we upheld were: 294.1. Failing to take account of all relevant Occupational Health reports, in relation to the July 2022 report (18.2) 294.2. Cathryn Buckley instructing the claimant to return to work in the office via a Teams meeting on 23 August 2022 (18.7.1); and 294.3. Cathryn Buckley requesting that the claimant attend the office on 24 August 2022 (on a date when the claimant could not be accompanied by her trade union representative).[295]We have to consider whether these acts of discrimination could, taken together, constitute a fundamental breach of contract entitling the claimant to resign.[296]If so, we need to consider whether the claimant resigned because of that breach. The breach does not have to be the sole or main factor in the resignation but it must be a material factor in the decision to resign.[297]We conclude that the acts of discrimination we have upheld are sufficient, taken together, to constitute a fundamental breach of the implied duty of mutual trust and confidence. The failure to take account of the July 2022 OH report was particularly serious.[298]However, we are not satisfied that this breach was a material factor in the claimant’s decision to resign. The claimant did not resign until 31 May 2023. Much of the treatment the claimant relied upon as together constituting a breach of the implied duty of mutual trust and confidence, including many things after July and August 2022, we did not find to be acts of unlawful discrimination. We conclude that the acts of discrimination which we upheld are not a sufficient part of the treatment which caused the claimant to resign to be a material factor in her resignation. We conclude, for this reason, that the complaint of constructive dismissal under s.39 EQA is not well founded. Constructive unfair dismissal (s.98 ERA 1996)[299]In relation to this complaint, we must consider all the treatment complained of which we have found, as a matter of fact, to have occurred, whether or not we have concluded that it was unlawful disability discrimination or victimisation. In relation to such treatment, we must consider whether that treatment could potentially contribute to a breach of the implied duty of mutual trust and confidence. If the treatment was done with reasonable or proper cause, it will not be capable of contributing to such a breach. We must then consider whether the treatment which could contribute to such a breach, taken together, does constitute such a breach.[300]If we conclude that there was a fundamental breach of contract, we must then consider whether the claimant resigned in response to that breach. The breach does not have to be the sole or main factor in the resignation but it must be a material factor in the decision to resign.[301]We consider each of the acts or omissions relied upon which we found, as a matter of fact, to have occurred.[302]We found that the claimant was required to work in the office at least 2 days a week from April 2022. We conclude that there was no reasonable and proper cause for that instruction at that time, given the information the respondent had about the claimant’s health and risk to her from Covid-19 infection. We consider that the claimant should have been allowed, at least temporarily, to remain working from home until the risk to her from Covid-19 was much reduced. We conclude that this treatment could potentially contribute to a breach of the implied duty of mutual trust and confidence.[303]We found that the claimant was required to hot desk up to 7 December 2022. We conclude that there was no reasonable and proper cause for this. This follows from our conclusion in the preceding paragraph that the claimant should have been allowed to continue working from home at that time but also that, if she was to have worked in the office, hot desking would have increased the risk to her. The respondent has not provided any evidence why the arrangement offered for the first time at the grievance hearing on 7 December 2022 could not have been offered before that date. We conclude that this treatment could potentially contribute to a breach of the implied duty of mutual trust and confidence.[304]We found that the respondent did not properly consider the claimant’s grievance at the hearing on 7 December 2022. Steven Morley did not enquire, before reaching his conclusion, into the evidence for Cathryn Buckley’s assertions that there were face to face meetings happening that the claimant would have been required to attend, and that others were having to attend in her place. We conclude there was no reasonable and proper cause for that failure. We conclude that this treatment could potentially contribute to a breach of the implied duty of mutual trust and confidence.[305]We found that the respondent failed to deal with the grievance in a timely manner. Mr Maloney described the delay as extraordinary. We conclude that there was no reasonable and proper cause for the delay. We do not consider that the respondent’s own confusion as to what policies it was applying can be relied on as reasonable and proper cause for the delay. We conclude that this treatment could potentially contribute to a breach of the implied duty of mutual trust and confidence.[306]The respondent refused to uphold the claimant’s grievance in the December 2022 outcome. We conclude that the respondent should, as an outcome of that grievance, have allowed her to work from home full time. In the view of the majority (Employment Judge Slater and Ms Metcalfe) this would have been on a temporary basis, to be reviewed from time to time in relation to the prevalence of Covid-19. The minority (Dr Tirohl) would have concluded that the outcome should have been to allow permanent home working. We conclude that there was no reasonable and proper cause for not allowing the claimant to work from home (in the view of the majority on a temporary basis) as an outcome of the grievance. The respondent has not provided any compelling evidence that the claimant could not continue to work from home without this having a serious impact on the business at this stage. We conclude that this treatment could potentially contribute to a breach of the implied duty of mutual trust and confidence.[307]We found that the respondent failed to deal with the grievance appeal in a timely manner. However, we conclude that there was reasonable and proper cause for the delay prior to the claimant’s resignation. The hearing arranged for 24 March 2023 was postponed at short notice because of the illness of a panel member. The Trust then needed to find another chair for the appeal because Juliette Tait was leaving the Trust. The claimant resigned before the new appeal hearing date of 30 June 2023. The delay after the claimant submitted her resignation cannot contribute to the reasons for her resignation. We conclude that the delay cannot contribute to a breach of the implied duty of mutual trust and confidence.[308]We found that the respondent refused to uphold the claimant’s appeal. However, this post-dated the claimant’s resignation and so cannot contribute to the reasons for her resignation. We conclude that the refusal to uphold the appeal cannot contribute to a breach of the implied duty of mutual trust and confidence.[309]We found that the respondent was unreasonable in sending the claimant for a further OH referral on 25 July 2022. This followed quickly after a report of 19 July 2022. If the respondent had concerns about conflicts in previous reports, they could have asked questions of the adviser rather than requesting a further report so soon after the previous one. We conclude that this treatment could potentially contribute to a breach of the implied duty of mutual trust and confidence.[310]We found that the respondent required her to attend a face to face consultation by a referral made on 25 July 2022. We conclude that this was unreasonable, for the same reasons as in the preceding paragraph. We conclude that this treatment could potentially contribute to a breach of the implied duty of mutual trust and confidence.[311]We concluded that the respondent did not take into account the 19 July 2022 OH report, in that they did not act on its recommendation that the claimant was only fit to work from home and decided to obtain a further report. We conclude that there was no reasonable and proper cause for this treatment for the same reasons as in the preceding two paragraphs and also because we previously concluded that this was an act of unlawful s.15 discrimination. We conclude that this treatment could potentially contribute to a breach of the implied duty of mutual trust and confidence.[312]Cathryn Buckley made the comment “you’ve had this ages so what’s changed” in a Teams call on 23 August 2022. The majority (Employment Judge Slater and Ms Metcalfe) conclude that the respondent had reasonable and proper cause for making the comment, given the circumstances of the claimant having long standing health issues and having been able to work in the office prior to the Covid-19 pandemic. The minority (Dr Tirohl) concluded that Cathryn Buckley had no reasonable and proper cause for this remark for reasons given previously (see paragraph 277). On the view of the majority, we conclude that this comment cannot contribute to a breach of the implied duty of mutual trust and confidence.[313]We found that Cathryn Buckley instructed the claimant on 23 August 2022 to return to work in the office. We concluded this was an act of unlawful s.15 discrimination for reasons given earlier. We conclude that there was no reasonable and proper cause for this discriminatory treatment. We conclude that this treatment could potentially contribute to a breach of the implied duty of mutual trust and confidence.[314]We found that Cathryn Buckley required the claimant on 24 August 2022 to attend the office for a meeting on a day when the claimant had said her trade union representative could not attend. We concluded this was an act of unlawful s.15 discrimination for reasons given earlier. We conclude that there was no reasonable and proper cause for this discriminatory treatment; the meeting could have been held a short time later when the trade union representative could attend. We conclude that this treatment could potentially contribute to a breach of the implied duty of mutual trust and confidence.[315]Taking together the treatment which we have concluded could potentially contribute to a breach of the implied duty of mutual trust and confidence, we conclude that this did constitute a breach of the implied duty of mutual trust and confidence and a fundamental breach of contract.[316]We consider next whether the claimant resigned, at least to a material degree, because of this breach.[317]The claimant did not resign until after her application for ill health retirement was successful. However, we conclude that the claimant would not have submitted that application had the respondent not committed this breach of contract. As the claimant told Mr Maloney in the appeal hearing on 30 June 2023, she would not have resigned if she had not been in that position. We conclude that the claimant would not have resigned if the respondent had allowed her to work from home for a further period.[318]We do not consider that the claimant affirmed the breach; she continued to protest against the respondent’s actions through the grievance process up to and beyond her resignation.[319]The respondent has not shown a potentially fair reason for the constructive dismissal.[320]We conclude that the complaint of constructive unfair dismissal is well Breach of the ACAS Code of Practice on Discipline and Grievance[321]We conclude that there was a breach of paragraph 33 of the Code in relation to the delay in hearing the grievance, which Mr Maloney described as extraordinary. We do not consider there was a breach of the Code in relation to the time taken to hear the grievance appeal, given the reasons for this delay (illness of a panel member then the chair of the panel leaving the Trust so another chair needed to be found). We do, however, consider that there was a further breach of the Code (paragraph 45) by reason of the delay in providing the claimant with the appeal outcome. Some of the delay was attributable to the further enquiries Mr Maloney asked Joan Smith to make of Cathryn Buckley but we do not consider that a 3 month delay can be properly explained by this. The enquiries produced no useful information for Mr Maloney so he did not have extensive new information to consider before reaching a conclusion.[322]The amount of the uplift to any compensation because of these breaches will be determined at the remedy hearing. Approved by: