Miss A Chernysh v Metropolitan Housing Trust Ltd and Thames Valley Housing Association Ltd: 2603272/2023

EMPLOYMENT TRIBUNALS

Case No 2603272/2023

Between

Miss. A. ChernyshClaimant

Metropolitan Housing Trust Limited and Thames Valley Housing Association LimitedRespondent

Before

Employment Judge Broughton

Members

Ms French

Ms Lowe

In person for claimant

Ms Duane (instructed by Counsel) for respondent

Date 6 June 2026

JUDGMENT

The claims are not well founded and are dismissed in their entirety.

REASONS

[1]The claim was presented on 12 December 2023 following ACAS early conciliation which started on 19 August 2023 and ended on 30 September 2023.

[2]The claimant’s employment ended on 20 September 2023 in circumstances where she claims it amounted to a constructive unfair dismissal. The claimant has a post viral syndrome commonly referred to as Long Covid and complains of disability discrimination, harassment, victimisation and a failure to make reasonable adjustments. She also makes a claim for unpaid time off in lieu (TOIL) and an unpaid bonus.

[3]The respondent accepts that the claimant had the condition of Long Covid and that it qualified as a disability at the relevant time for the purposes of section 6 Equality Act 2010. It does not accept knowledge or the pleaded substantial disadvantages.

Preliminary Matters

[4]An Order had been made for the hearing to be conducted remotely by CVP. This Order was made on the application of the respondent. It was not made on medical grounds but on the grounds of convenience and saving of expense.

[5]Orders had been made that the respondent was to file an agreed bundle electronically 7 days before the final hearing. The morning of the first day of the hearing was allocated as reading in for the Tribunal Panel.

[6]The respondent sent in an email link to the bundle of documents however by the time the tribunal clerk had attempted to download the bundle the link had expired. The respondent re-emailed the link on the morning however the documents were too large to download by pdf and eventually they were uploaded to the DUC. The Tribunal Panel did not have access to the documents and witness statements until 12.00 midday. No hard copies had been filed therefore the Tribunal Panel had insufficient time to read into bundle of over 1000 pages. The afternoon was taken up with preliminary matters and the Tribunal panel had to complete its reading in the morning of the second day of the hearing.

[7]When the Tribunal Panel began hearing evidence, there were then difficulties with the CVP in that it was difficult at times for the parties to hear one another or for the Tribunal Panel to hear the parties. Those problems persisted into the second day. The claimant misheard questions put to her in cross examination and the Tribunal Panel were having to repeatedly ask to clarify both the questions and the answers. The audio sound was ‘tinny’ and echoey and it was proving a strain for the Tribunal Panel.

[8]There was a discussion with the parties about converting the hearing to an attended hearing. The claimant had no objection. The respondent objected on the basis that it would be inconvenient for their witnesses and counsel and would incur more cost in terms of accommodation.

[9]The Tribunal Panel took into account the respondent’s representations but determined that continuing remotely put at risk a fair hearing and that it was in the interests of justice to convert to an attended hearing The technical issues represented a material change in circumstances and Order was made that the hearing take place in person.

[10]It was agreed between both parties that remedy would be dealt with after liability. Submissions were however heard on a Polkey deduction

[11]There was a separate remedy bundle. The claimant explained that there were documents in the bundle that she would refer to and had referred to in her evidence in chief.

List of Issues

[12]A list of list of issues (LOI) had been filed however on checking with the parties that this was agreed, the claimant made the Tribunal Panel aware that she had sent in another version.

[13]Ms Duane, counsel for the respondent, understood that the LOI had been agreed on 27 February 2025 but for minor amendments and had filed that version on 18 July 2025 however a few days prior to the final hearing, the claimant had submitted a revised LOI which Ms Duane was surprised by because the witness statements had been prepared on the basis of the LOI prepared on 18 July 2025.

[14]The respondent was concerned that the claimant’s LOI was seeking to amend her claim and felt that the Tribunal must therefore, go through the contentious points.

[15]The LOI were discussed with the parties and ultimately the LOI were agreed and a final version provided to the Tribunal on 30 September 2025 and are set out in Appendix 1 to this judgment. Without Prejudice Correspondence

[16]The respondent complained that the claimant referred to without prejudice discussion in her claim form where she refers to a discussion with ACAS. The claimant confirmed that she was content for those references to be removed and with agreement of both parties 2 paragraphs were struck out.

The Findings of Fact

[17]The Tribunal make the following findings of fact reached on a balance of probabilities; some findings may be recorded in the conclusions section where they sit more conveniently. All the evidence has been considered but findings are made on the evidence the Tribunal consider material to the determination of the claims. The claimant identified the documents it wanted the Tribunal to consider within the remedy bundle.

[18]The references in square brackets are to pages in the agreed bundle. Witnesses

[19]All witnesses swore to the truth of their statements. The claimant gave evidence and was cross examined. The following individuals were called as witnesses for the respondent: Mr Chris Clarke, Head of Fire Safety and Asbestos, Ms Janet Cornthwaite, Senior Regional Head of Property, Mr Damien Martin, Director of Financial services Ms Thorpe, now Operations Manager but at the material time, Head of Customer Experience and Ms McCarthy, Head of People

Evidence

[20]The agreed liability bundle numbers 1129 pages. The remedy bundle numbers 499 pages and reference to that bundle will be prefixed by R. Employment - Background

[21]The claimant initially worked for the respondent since 2018 through an agency. She commenced employment as an Energy Co-ordinator within the Compliance and Technical Services Department on 2 September 2019 [page 79 – 80].

[22]The respondent is a provider of affordable housing. Contract Manager Role: 2022

[23]Following a proposed restructuring in 2021/2022, the claimant’s role was matched to the role of Contract Manager and the claimant was appointed into this role with effect from 1 June 2022, confirmed by letter of 10 May 2022 [page 96 - 100]. The claimant was served with an addendum to the contract of employment confirming her change of job title and pay. Trade Union Representative

[24]The claimant confirmed in cross examination that while working for the respondent she had been a trade union representative but could not recall she said for how long. She had sought advice from the trade union she confirmed on her case on 20 May 2023 and around October 2023 but drafted her own claim form. Contract of Employment: Contract Manager

[25]The applicable contract of employment (Contract) [Page 81-89] provides [para 87]: Paragraph 16 : CODE of CONDUCT, RULES AND PROCEDURE You are required at all times to comply with the organisation’s Code of Conduct, as well as the Disciplinary Policy, which forms part of your contract of employment. …” Paragraph 18: DATA PROTECTION … By signing this contract you also agree that you are giving consent to the organisation processing the data it collects which relates to you for the purposes of the administration and management of its employees and business and for compliance with acceptable procedures, laws and regulations…

[26]The Contract Manager role profile [page 90 – 94] dated 23 March 2021 provides that the responsibilities of the role include: “8. Effectively lead, manager and motivate your team to provide a responsive service to the stakeholder … 22. To promote a culture of openness, innovation, involvement, teamwork and performance… 25. To maintain the highest standards of personal and profession integrity and report any departures from these standards…

[27]The claimant had a team which she directly managed which at the relevant time in 2023, consisted of two Contract Officers who reported directly into her; Ms Jesseca Spencer and Mr Richard Bridge.

[28]The claimant reported directly into Ms Farish, who in turn reported into Mr Alex Spencer.

[29]The claimant had previously filed a grievance against Ms Farish in 2022 about her excessive workload.

[30]The claimant had a friendship with her two direct reports, and a particularly close friendship with Ms Spencer. May 2023

[31]On 11 May 2023 the claimant received an email and her position was and remains, that she does not know who sent it. It was sent to her work email address from a sender identified as ‘AJ Vlad’ to her work email at 09:37[page 103].

[32]The email made comments about Ms Spencer and Mr Bridge. In essence the email alleged that they were ‘stabbing’ the claimant in the back, that they felt the claimant was bossing them around and that Ms Spencer felt unappreciated and that they both wanted to leave her team for a better position.

[33]On 12 May 2023 the claimant was sent a second email from AJ Vlad at 18:26 to her work email alleging that the claimant should not trust them, that Mr Bridge was manipulating Ms Spencer against the claimant and it alleged they were having an affair [page 340].

[34]The Tribunal stress that these were anonymous allegations and that Ms Spencer and Mr Bridge denied this and neither were called as witnesses in this case. There are no findings in relation to their relationship outside of work and their position was that these were malicious emails.

[35]Mr Bridge’s, partner (Karen), was also receiving messages from an “anonymous” Instagram user. The claimant accepted in cross examination that she knew Karen’s Instagram account details.

[36]The claimant’s evidence is that Karen had accused her of having an affair with Mr Bridge in the past and the claimant accepted that she and Ms Spencer had made unflattering comments about Karen. The Tribunal consider that it is apparent that the claimant engaged in inappropriate and unprofessional behaviour, blurring the professional and personal boundaries with her direct reports.

[37]On 15 May 2023 the claimant received another email from AJ Vlad at 16:14 which was almost identical to the content of the email sent on 11 May 2023 at 09:37(apart from it not containing a snake symbol at the foot of the message) [page 339]. Claimant’s Actions

[38]The claimant was on annual leave and claims that she did not look at her emails because it was her birthday and therefore did not notice the messages until she returned to work on 15 May 2023.

[39]The claimant accepted in cross examination that she did not report to her manager or IT or block the emails on 11, 12, 15 or 16 May 2023 [page 103, p339. p340, p1045]. She did not report them on her return to work on 15 May, claiming to have been too busy with work. She was not too busy however to discuss them with Mr Bridge. Disclosure to Mr Bridge

[40]On 15th May 2023 the claimant forwarded to Mr Bridge the anonymous emails from Aj Vlad. Mr Bridge was upset and informed Ms Spencer.

[41]The claimant accepted in cross examination that the content of the messages was only something who someone who worked for the respondent could have produced and that it was “very unlikely for Karen to witness” what was described in the message and accepted that sending these messages would constitute “at least misconduct”.

[42]Mr Bridge and the claimant on 15 May then had a Microsoft Teams call (Teams). The claimant was clearly aware that the emails represented a data breach because in her calendar she referred to the meeting as a meeting about a “Data Breach.” The claimant was working from home. Mr Bridge would say in his evidence, during the subsequent investigation that he told the claimant during this call to contact IT and report the anonymous emails. Mr Bridge gave further evidence that that same evening the claimant send Mr Bridge another anonymous email, which included a screenshot of a Teams message/chat between him and Ms Spencer which was conducted at work on the respondent’s Teams platform and which she had been sent the from AJ Vlad. The Teams message/chat between Ms Spencer and Mr Bridge was critical of the claimant, accused her of creating drama and critical of her treatment of her line manager, Fiona Farish during a previous grievance the claimant had raised [page 121].

[43]Ms Spencer at 2:20pm on 16 May 2023 sent the claimant a Facebook message. Clearly, she was concerned about the claimant having seen the message. Ms Spencer refers to the claimant having seen the Teams chat between her and Mr Bridge and now knowing that Ms Spencer had applied for another role [page 156]. Ms Spencer refers to the claimant as her ‘closest friend’ and that she applied for another role out of haste after “Alex was chatting some drink shit” [page 156].

[44]This does the Tribunal consider support the assertion that Mr Alex Spencer had made some comments about the future of the department and that this had led Ms Spencer to look for another job or at least that was the explanation she provided to the claimant. .Ms Spencer had clearly not spoken to the claimant about her decision and in one of the messages Ms Spencer sent to Karen [page 160] she states that: “I applied for the new role because I was told the department was going to be ripped apart my out hire ups [sic] but that’s not going to happen for a while.” . Ms Spencer was not called as a witness and therefore the Tribunal have not heard evidence from her. It appears clear from the messages she sent to Tribunal, that Ms Spencer considered that the claimant was responsible for accessing the Teams message and sending the anonymous emails. There is no mention of Ms Spencer fabricating anything but she does comment in messages to Karen that she hopes the claimant is dismissed.

[45]The Tribunal find on balance that something was said to Ms Spencer by Alex Spencer about a restructure although it seems this was not to be imminent.

[46]The claimant had still not informed Ms Farish or IT about the anonymous emails or that the workplace Teams chat of two employees had been accessed without their knowledge and sent to the claimant with obvious malicious intent. WhatsApp Messages from the claimant

[47]In the early hours of Wednesday 17 May 2023, a number of WhatsApp messages were sent from the claimant’s mobile telephone to a Group WhatsApp account entitled “MTHV Energy Team”. The Whatsapp also had the respondent’s official logo as its group picture. The group consisted of only the claimant and her two direct reports.

[48]The claimant, as she would later admit during an investigation meeting, was upset at seeing the Teams chat between Ms Spencer and Mr Bridge and felt betrayed.

[49]The message from the claimant’s mobile telephone sent at 01:14am contained a screenshot of the work Teams chat between Ms Spencer and Mr Bridge.

[50]A message including a link to a Spotify and a song entitled “Fuck You and All Your Friends” was sent from the claimant’s account at 01:42 to Ms Spencer and Mr Bridge [page 343]. It included explicit and offensive song lyrics, including: “I'm done with you for good…You're always searching for the next best thing and it's for the better So I guess best friends don't last forever” and “Don’t trust a ho, never trust a ho, ‘cause a ho won’t trust me.” [page 356-362].

[51]Further messages were sent at 2 am and 3:15am.

[52]The claimant denies that she personally sent these messages but accepts they were sent from her personal phone and her Whatsapp account. The claimant blames a friend, Sonny, who was at her home, for sending them without her knowledge.

[53]Her evidence on who was responsible for sending these messages, which we shall return to, is wholly unconvincing and implausible.

[54]Ms Spencer responded, clearly trying to repair the friendship. She sent the claimant a message at 6:49 am that same morning on 17 May [page 344]: “Yep you do that is you do like to ruffle feathers and u love the drama who doesn’t. However we wouldn’t change u for the world. What I want to know is who managed to get access to my teams? Was it you who requested access?”

[55]Ms Spencer sent another message at 6:58am [page 344/345]: “…sending those sad songs at 3am looks like it has been playing on your mind…There’s nothing in there that’s not true and I don’t come to work for stress …I think we need to speak about this properly will come visit you after work today if we don’t get to chat on teams. Like you’ve always said were friend before work so don’t let these stupid screen shots get in the way of that….I’ll be reporting these to hr today as its clearly someone trying to hack us and quite frankly I don’t appreciate someone making shit up about me …” Tribunal stress

[56]The claimant replied and made it clear that she did not want to speak to Ms Spencer: “…please don’t come around to talk. Major no thank you on that one. I’ve had time to process things yesterday and I really don’t want to talk about anything, there no point I can’t move on past what you did…” [page 348] Report by Ms Spencer

[57]On 17 May 2023 Ms Spencer reported the anonymous emails from Aj Vlad and the accessing of the Teams chat to IT on the morning of the 17 May and the claimant was asked to forward the anonymous messages to IT [page 101-5].

[58]The claimant then reported the emails to IT on 17 May 2023 after Ms Spencer had already reported them and told her that she would be reporting them [page 101, para 37, p389]. Sick leave

[59]The claimant then went off sick from 17 May to 23 May 2023 [page 570]. The claimant claims that she went off sick because she was upset about a proposed restructure following finding out about what Alex Spencer had said to Ms Spencer, however the claimant did not speak to her line manager or HR about any proposed plans before. The Tribunal do not find it plausible that the possibility of a further restructure caused such a severe and immediate reaction. An alternative, and the Tribunal consider far more plausible explanation, is that the claimant was upset and worried because Mr Bridge and Ms Spencer had reported the messages.

[60]The claimant alleges that she had a discussion with Ms Farish on 17 May 2025 about the anonymous emails. The conversation is not referred to in any documentation produced by the claimant until 2 August 2023 and is not referenced at all in her witness statement. The respondent disputes this discussion took place and refers to this as ‘fanciful’ on the basis that while the claimant went to the trouble to set up a meeting entitled “data breach” with her direct report and claims this lasted 1 hour/1.5 hours, she took no steps to arrange or set up a meeting or even forward the emails to Ms Farish and made no reference to this purported discussion to either Mr Clarke or Mr Alder at any stage. However, the Tribunal note that she did say to Mr Clarke at the investigation meeting on 7 June that she had told Ms Farish on 17 May that there was a ‘stalker’ .The Tribunal find that this was the extent of what she said, she provided no details and accepts that she did not provide Ms Farish with copies of the emails from Aj Vlad.

[61]In terms of not reporting the anonymous emails and the Teams chat which had been accessed, the claimant claims that she was not trained on data protection and therefore was not sure what to do. The Tribunal do not find that explanation plausible.

[62]The claimant had undertaken various training modules in Data Protection and Cyber/IT security which covered data breaches and how to action suspicious emails however, even putting that aside, the claimant is an intelligent individual who claims to have 2 law degrees and would show herself capable of researching and applying complex principles of law and had experience as a trade union representative. It is simply not plausible that she did not know to report these emails to either her direct line manager and /or HR or IT. Her direct reports did so promptly and it is therefore not surprising that Ms Spencer and Mr Bridge were suspicious that the claimant was the author of the emails.

[63]The claimant would later challenge the respondent with respect to their compliance with data protection. Contract of Employment and Policies

[64]Under the Contract the claimant was “required at all times to comply with the organisation’s Code of Conduct, as well as the Disciplinary Policy.” [Clause 16, page 87].

[65]The Contract includes provisions on data protection, [Para 18, P87]: “By signing this contract you agree to comply with the organisation’s policies on data protection, information security and confidentiality (as set out in the HR section of the intranet), which are written in accordance with the relevant legislation. By signing this contract you also agree that you are giving consent to the organisation processing the data it collects which relates to you for the purposes of the administration and management of its employee and business and for compliance with acceptable procedures, laws and regulations…”

[66]In terms the WhatsApp messages, the Disciplinary Policy [ page 631] states: “This policy applies throughout every aspect of your work with MTVH and also extends to events outside of the workplace where there is a formal link to work e.g. work-related social events, or where you could be identified as working for MTVH..”

[67]The Disciplinary Guidance [page 638] provides that; “Allegations of misconduct and gross misconduct can take place in a number of forms, for instance, physically, verbally, in writing or online such as on social media websites like Facebook.”

[68]The claimant accepted in cross examination that she was aware of the Code of Conduct which stipulated that as an employee “You must not harass, bully or attempt to intimidate any person at any time.” “You must not discuss topics or display materials in the workplace which other people might reasonably find offensive.” “You must not use language, express views or display materials which other people might reasonably find offensive.” [p610, clause 2.6]. 25 May 2023

[69]On 25 May 2023 Mr Bridge and Ms Spencer reported the anonymous emails and WhatsApp messages to Ms Farish.

[70]Ms Spencer sent Ms Farish the messages from the ‘MTVH Energy Team WhatsApp Group’ at 1:28 pm [page 120 – 122 & page 342 – 348] which included links to offensive song lyrics songs and the rest of the messages at 1:37pm on 25 May 2023 [ page 123 – 128]. These included the screenshotted Teams chat message between Ms Spencer and Mr Bridge discussing the claimant and her treatment of Ms Farish.

[71]The claimant disputes that the Group WhatsApp was work related but claims that it is a private group chat and therefore nothing to do with the claimant’ s employment. The claimant in her cross examination of Mr Clarke put it to him that they “had not used it as a chain of communication [for work matters] until Jessica messaged me” on the 16 May 2023 about the Teams chat. However, the claimant had herself put the screenshot of the Teams chat on the group and those discussions concern the claimant’s behaviour at work (ruffling feathers), a discussion about the Aj Vlad emails alleging a work related affair, and there are discussions later about problems with Ms Spencer’s work computer and pops up appearing and the claimant advising her to raise an IT ticket [page 127]. Ms Spencer also uses this platform to inform the claimant that IT do not want her to delete any of the Aj Vlad emails she had received. The claimant does not at any point inform Ms Spencer that it is not appropriate to discuss work related matters on the WhatsApp Group. Investigation

[72]Ms Samantha Henderson of HR contacted Chris Clarke, Head of Mechanical & Electrical on 25 May 2023 by email at 2:29pm [page 131] to inform him that the respondent was looking to suspend the claimant following the disclosure of the messages she had put on the Group Whatsapp on 17 May (not in connection with the Aj Vlad emails).

[73]A meeting had taken place with Mr Alex Spencer, Ms McCarthy of HR and Ms Farish on 25 May when the decision was made to suspend the claimant pending an investigation [page 133-4].

[74]Mr Clarke was asked to lead the investigation however it was made clear to him that the decision to suspend had been taken made. He was made aware that the decision to suspend related to the claimant sending inappropriate messages to Ms Spencer and Mr Bridge but he was not provided with the detail or any evidence at this stage. His undisputed evidence in cross examination is that he was told that this was considered to be in the interests of all parties, there was no discussion with him about any alternatives. He had a follow up meeting with Ms Henderson of HR and Ms Farish later that same day when Ms Henderson explained the HR process to him because he had not carried out a suspension for the respondent at that point. In cross examination he confirmed that he did not question the decision to suspend and had not seen any of the WhatsApp messages before he carried out the suspension. He was given his instructions by email from Ms Henderson: “She will need to be suspended today, issued with the letter and the disciplinary policy and procedure… Please follow the suspension checklist and ensure all points have been carried out …I need to ensure the allegations are air-tight and in the right format.”

[75]Mr Clarke in cross examination gave evidence that he understood the reference to being ‘airtight’ to mean that he had to make sure it was done correctly and the Tribunal on balance accept that as a reasonable interpretation. Ms Henderson did not however allude in her email to any consideration of alternatives to suspension. Suspension

[76]The suspension meeting took place over Teams at 3:20pm on 25 May [page 351-2]. It is evident from the brevity of the notes that this was a short meeting in which there was no discussion about alternatives to suspension and there was no attempt to explore with the claimant any response to the allegations. It was explained that it related to WhatsApp messages sent on 17 may between 1am and 3am and an inappropriate message sent at 8:57am.

[77]The claimant would later be sent a copy of the notes and made a couple of fairly minor amendments to them [page 242] however Mr Clarke did not agree the changes [page 244]. Nothing much turns on this other than the claimant’s assertion around alleged inaccurate note taking. The Tribunal certainly do not regard the disputed comments as significant. (The claimant could not recall Mr Clarke saying that suspension was to protect all parties including the claimant and that she had said, when talking about the WhatsApp messages, that “she was aware where this was coming from.”)

[78]The letter of suspension did not identify that it was Ms McCarthy and Mr Spencer who had made the decision to suspend, rather it gives the incorrect impression that Mr Clarke had made the decision.

[79]The claimant was suspended on full pay.

[80]The claimant did not raise at this stage any issue about any adjustments she would require during the process because of her disability.

[81]The day before the claimant’s suspension the claimant sent an email chain from a thirdparty client who, on the claimant’s instruction, had been advised to exclude Ms Spencer from further emails from 24 May 2023. The claimant appeared to suggest that Ms Spencer was leaving the business, [page 324-6]. The claimant in cross examination suggested that this was an “agreed course of action” from April however the Tribunal accept that this explanation of her conduct is not credible. This instruction was given by the claimant in late May 2023 and Ms Spencer expressed “shock” when she became aware of the email. The Tribunal find on the evidence that the claimant acted in this way to exclude Ms Spencer because she remained upset with her. The respondent was not aware of this conduct at the time of suspension however the Tribunal consider that had it been, it would have given the respondent good reason for believing that suspension was appropriate. Alternatives to Suspension

[82]The evidence of Ms Thorpe is that alternatives to suspension were considered but the challenge was that they had to consider avoiding any interaction between the claimant and her two direct reports who said they felt threatened by the claimant.

[83]Ms Thorpe gave evidence that since the claimant’s case they have ‘evolved’ and now the respondent have a form they use for suspensions which explains who made the decision and records the alternatives considered. Decarbonisation Role

[84]In cross examination the claimant gave evidence that she could have been transferred to a Decarbonisation job she had applied for.

[85]Ms Thorpe gave supplemental evidence that she had been made aware a couple of months before giving her evidence in this tribunal, that the manager in charge of recruiting for the Decarbonisation role did not intend to pursue the claimant’s application because there were better applicants. However, this had apparently been decided at around the time of the claimant’s suspension. It is clear however that this was not something the respondent considered at the time however, Mr Martin however gave evidence in cross examination that: “It was open for [the claimant] to apply, but someone accused of gross misconduct, would not I think be allowed to walk into an advertised job.”

[86]The Tribunal accept that it would be unreasonable to expect an employer to put someone facing charges of gross misconduct and potentially dismissal into a new and quite senior vacancy. EPC Role

[87]The claimant further argues that as an alternative she could have been allocated to alternative duties, including assisting in completing EPC validation. As part of her objectives, she had been given the task to complete EPC validation to provide more accurate data to the auditors and could have carried out work on that task, something she had started but not completed. This involved inputting data into a large Excel spreadsheet and her evidence was that she would not have had to work with anyone on this task. When it was put to her in cross examination that Ms Spencer and Mr Bridge would need to feed in data, her unchallenged evidence was that for at least 2 weeks she could have inputted existing new data.

[88]The claimant in answer to a question from the judge, clarified that her evidence is that she first raised the possibility (as an alternative to suspension) of doing EPC project work with Mr Martin at the grievance appeal hearing on 3 August 2023, which is documented [page 409]. Mr Martin had commented in that hearing, that he was “fully aware of the EPC question”.

[89]The evidence of Ms Thorpe in supplemental evidence was that the EPC role is not a standalone role but a task undertaken across a couple of teams and would require involvement with contract managers, contract officers and the Decarbonisation Team and would not have been appropriate.

[90]The Tribunal find on balance that there was no meaningful consideration to alternatives to suspension and certainly no discussion with the claimant. Investigation

[91]A letter was then sent to the claimant on 1 June 2023 setting out the offences:• “It is alleged that you have sent inappropriate message to contract officers at 1:42 , 2:00 and 03:15am on the 17th May 2023 using Whatsapp messenger, in particular song lyrics containing explicit and offence [sic] language. [i.e. the song lyrics sent to the Group Whatsapp]

• It is alleged that at 8:57am on the 17th May 2023 in a message response via Whatsapp you acted inappropriately and unprofessional to a direct report that lined into yourself.” [i.e. the response the claimant sent to Ms Spencer telling her that she cannot move on past what Ms Spencer had done and did not want to discuss it] … It is anticipated that your suspension will be reviewed on 8th June 2023…” Tribunal stress

[92]Mr Clarke’s evidence is that he spoke with the claimant on 1 June about the date for the investigation hearing, the claimant however denies a telephone discussion on the 1 June. The Tribunal do not consider anything material turns on this point of dispute. A second letter dated 1 June 2023 [page 120] informed the claimant that she was required to attend an investigation meeting on 7 June with Mr Clarke, (who reported into Alex Spencer). That gave the claimant 6 calendar days’ notice. The disciplinary policy [page 630 634] provides that: “At all formal stages of this process an outline of the allegations will be provided in writing, including the possibility of dismissal, with a minimum of 3 days’ notice of a hearing.” [Page 632]

[93]The claimant was told that she should not access the workplace and was provided with details of the respondent’s counselling service.

[94]The respondent makes the point that the claimant does not allege that she was sent any further anonymous messages from Aj Vlad after her suspension as evidence that the claimant may well have sent the anonymous email herself and the Tribunal accept that this is possible, to ‘ruffle some feathers’ or perhaps because of some objection to the friendship or suspected relationship between her two direct reports.

[95]The claimant spoke with Mr Clarke by telephone on 5 June 2023. Mr Clarke in cross examination accepted that there was a discussion where she mentioned that she was scared of Mr Bridge and Ms Spencer and that while she was away from her home there had been nails left on her drive in May 2023. Mr Clarke as a result of this discussion, arranged for Mr Bridge and Ms Spencer to work from home when the claimant came in for the investigation meeting. He denied in cross examination that the claimant had mentioned to him that they were making false allegations about her and when questioning Mr Clarke the claimant clarified that what she meant by this was that the allegations they were making about her were insufficient as there was no evidence, with reference to their belief that the claimant had sent the Aj Vlad emails (which was not the matter being investigated). The claimant had been made aware by Karen that they believed the claimant had sent the emails.

[96]The claimant mentions this in her witness statement [page 57/58]. The Tribunal find on balance that it is more likely than not that she did mention this to Mr Clarke because she set it out in her follow up email to him on 7 June 2023 [P142] however, the Tribunal consider that it is more likely than not that she phased it in the same way i.e.. that Ms Spencer thought that the claimant had sent the AJ Vlad emails but did not consider she had enough evidence to take it to HR, not that they were ‘targeting her’ because of the AJ Vlad emails. In her 7 June email she only goes as far as stating; “I haven’t said a single bad thing about them, despite this atrocious situation they have put me in due to this horrid case of mistaken identity”.

[97]The claimant attached to her 7 June email numerous screenshots of private messages she had been sent from Mr Bridge’s partner, Karen, which included private messages between Karen and Ms Spencer. The claimant also attached copies of numerous messages from the ‘MTVH Energy Team WhatsApp Group’ [page 153] to show nonwork-related discussions. Investigation meeting: claimant – 7 June 2023

[98]The investigation meeting took place with the claimant in person on 7 June 2023 [page 138 -141] commencing at 13:03. The invitation letter explained that this would be in person at Waterfront House, the office where the claimant was based. The claimant did not indicate any difficulty attending in person and did not ask for any adjustments.

[99]At this meeting the claimant asked to see the Whatsapp messages which it was alleged she had sent. These were shown to her. The claimant’s initial reaction when shown the messages was not to deny she had sent them: “The train of messages is between me, Jess and Ritchie. We have a private friendship outside of work. When Jess was being hired, I ask [sic] HR if I need to make them aware of our friendship and they told me no.”

[100]When asked if she remembered sending them her reply was: “No, it seems likely that I would say something like that.”

[101]And when asked again if she remembered sending them answered; “I had a friend with me, he was the who [sic] sent it”.

[102]The claimant went on to state that this was a private conversation and if it is to be used it needed to be stated in a policy.

[103]The claimant was asked about the Teams message between Mr Bridge and Ms Spencer which was critical of her behaviour at work and which had been exchanged at work using the company’s Teams platform. The claimant explained that both she and Mr Bridge’s partner, Karen had been sent it anonymously. The claimant accepted that this particular message was work related and which the claimant herself had gone on to post on the Group Whatsapp on 17 May: Chris Clarke “The message that went to Karen and you, you then sent it to the team message chat. This was a work-related message that was sent to her personal email address. Can we say that the reason you send the message was because you were upset.” Claimant: “Absolutely” Chris Clarke: “So, when you received the message, did you reach out to your line manager?” Claimant: “Yes, right before I went off work due to stress. My Manager had a history for not reporting misconduct/gross misconduct, but now she has encouraged my friends to do so.” … Chris Clarke: “ Why did you send the screenshot at 1:14am in the morning?” Claimant: “My best friend betrayed me, and I was devastated.” Chris Clarke: “As a manager do you think you should have sent this message?” Claimant: “No, I shouldn’t have sent those messages.” Chris Clarke: “Then 20 mins later, you are telling me that your friend sent the links to those songs?” Claimant: “He send (sic) the message and I wasn’t aware.”

[104]The claimant in her evidence in chief alleges that the meeting minutes were not accurate and that she never called Ms Spencer her best friend or said she was “devastated by her betrayal” [Para 74 claimant’s w/s]. The respondent contends that this was simply not credible, as the claimant’s own grievances cited how she exchanged messages with her “closest friend betraying her” and “the betrayal from my closest friends”, [para 23 page385, para 28 page 387]. In cross examination of Mr Clarke, the claimant put it to him that she had not referred to Ms Spencer as her best friend, but as her close friend. The Tribunal find on the evidence, that the claimant had said what was recorded in the notes however, whether she described her as a close friend or her best friend, not much turns on it.

[105]The claimant admitted in this meeting that she would find it inappropriate if she was sent the messages with the same song links but went on to make a number of accusations.

[106]The claimant alleges that on the 13 May there were screws left over her driveway and appears to suggest that Mr Bridge and Ms Spencer did it. She provided no evidence to substantiate this allegation. In cross examination the claimant gave evidence that her police report was not progressed and mentioned that in May 2023 she had her doors and windows replaced. The Tribunal accepts the respondent’s submissions that if there were nails/screws on her driveway, the most plausible explanation was that these had been left following the work on her property and the Tribunal note the claimant’s willingness to make serious allegations with no evidential basis.

[107]She also alleged that she had told Ms Farish there was a ‘stalker’ just before the claimant went off work sick and that Alex Spencer had told Ms Spencer to ‘jump ship’ at an event when Mr Spencer had had been drinking and had said he wanted to ‘tear the team apart.’

[108]The claimant at the end of the meeting stated: “If I knew that my private conversation would have been used, then I wouldn’t have done this.” Tribunal stress

[109]The claimant challenged the right to use private messages and referred to having applied for another role with the respondent in Decarbonisation but she had not heard back.

[110]The claimant complains about Mr Clarke’s conduct at this meeting. The Tribunal do not find any evidence to suggest he behaved oppressively or otherwise inappropriately Following this meeting on 7 June 2023 the claimant made no mention of any such concerns in her email [p147] and she does not suggest she reported such conduct to HR or her trade union. The Tribunal consider this to be an unfounded allegation and the start of numerous complaints and grievances which in no small part the Tribunal consider on balance, had the likely aim of deflecting and stalling a disciplinary hearing. Adjustments

[111]The claimant did not request any adjustments at this stage for her disability; she did not make reference to her disability and did not raise any difficulties in attending the meeting in person. Investigation meeting with Mr Bridge: 7 June 2023

[112]Mr Clarke met with Mr Bridge on 7 June 2023 after his meeting with the claimant (commencing at 2pm).

[113]Notes of the investigation meeting [page 312-316] record Mr Bridge describing the WhatsApp group with Ms Spencer and the claimant as “little bit of work” but also personal. He stated that the claimant on 15 May showed him the anonymous email and then sent him another screenshot and he asked her to report it and she told him not to do so and then sent him another email after work at about 6:30pm and then on 16 May sent him a screenshot from his Teams message/chat with Ms Spencer, the messages from the claimant were sent to his personal phone. He stated that he had come into work and bumped into Ms Farish who told him that the claimant had not mentioned these messages to her.

[114]Mr Bridge was asked by Mr Clarke whether he was asked if he wanted to raise an allegation to which Mr Bridge states that Ms Farish had mentioned there were grounds to raise a grievance, he did not it seems initially want to do so, he did not want to “ fuel the fire” but, “I just wanted to move on”, he was to start a new role, however he described how Ms Spencer then had a breakdown and he felt that he wanted to raise a grievance.

[115]The Tribunal note that he does not assert that he was encouraged by Ms Farish to raise a grievance only informed he had the right to do so and it was the reaction of Ms Spencer with whom he had a close friendship, that made him to decide to take it further.

[116]Mr Bridge also asserted that when he had worked on a temporary basis for the respondent previously the claimant had told him to return his mobile phone and laptop to her personal address and he queried whether she had returned his phone. It appears from the evidence however that the claimant had done so.

[117]In terms of the claimant, he described her behaviour as follows: “She has her moments when she has her rants. So sometimes she will have meltdowns and goes off sick.”

[118]Mr Bridge referred to a number of incidents where the claimant’s behaviour had been inappropriate: “Yes, on several occasions. For example, when I passed my probation, she told me that just because I have passed doesn’t mean that she still can’t manage me out…She said that if you were going to be on this team you need to drink with me. I felt like I was back in school being peer pressured…”

[119]Mr Bridge described not socialising with the claimant other than at work related events. He mentioned also that his partner had been receiving messages from an anonymous person on Instagram including from his work Team chats with Ms Spencer and that they referred to things he had only said to the claimant and Ms Spencer including something he regretted having said. He also referred to the claimant referring to his partner as a ‘dwarf’ (which the claimant would accept was a comment she had made about his partner) and that he should leave her. Mr Bridge had prior to these events applied for another role and on 18 May confirmed that he would accept the offer of this other role within the respondent. Investigation meeting with Ms Spencer: 7 June 2023

[120]Mr Clarke then met with Ms Spencer. The meeting commenced at 3pm and was minuted [page 317-9].

[121]Ms Spencer stated that before she received the screenshots of the Teams chat with Mr Bridge from the claimant at 01:14am on Wednesday 17 May. On Tuesday 16 May, the day before, Mr Bridge had a message from the claimant asking whether Ms Spencer had applied for another role. Ms Spencer had sent a Facebook message to the claimant stating that she knew the claimant was aware that she had applied for another role but the claimant had not acknowledged it. She described feeling angry about the song lyric links sent to her on 17 May and that they were offensive and described it as: “childish, not professional and like being back at school” and that the friendship was over between them.

[122]Ms Spencer also stated that she was happy for this to be dealt with as a complaint and that she had not been coerced to move it forward and did not feel forced to do so.

[123]Ms Spencer described previous behaviours by the claimant including where the claimant had told her she was not like other managers and “will manage you out…and then laughed about it.” Described the claimant as a “very reactive manager” and that she believes the claimant to be “an angry person in general”

[124]In terms of the WhatsApp Group Ms Spencer described it’s content generally: “there was work related chat in the WhatsApp group as well as personal, feels that the messages from Anna have come from Anna as a manager rather than Anna as a friend as it was in response to the Teams chat.” Disclosure from the claimant

[125]On 7 June 2023 at 5:01pm the claimant sent to Mr Clarke various screenshots including of Whatsapp and Instagram messages sent to the claimant by Mr Bridge’s partner, Karen who had received them from an anonymous sender and messages from Ms Spencer to Karen, accusing the claimant of being the anonymous sender but stating that they do not have enough evidence of the claimant sending them to take the matter to HR. The claimant also included screen grabs from the WhatsApp Group referring to non-work-related matters to support her contention that this was a private and not workrelated Group and referred to

Article 8 ECHR

and a court case around when there may be an expectation of privacy. The claimant argued that the respondent’s polices did not apply to messages between friends. The claimant also complained about Mr Alex Spencer’s alleged comments to Ms Spencer about the future of the department and Ms Farish not following the sickness reporting policy and her unmanageable workload.

[126]The claimant also sent to Mr Clarke the message from Ms Spencer from 16 May 2:20pm [page 156]. Adjustments

[127]The claimant did not raise in this long letter any need for adjustments because of her disability. Mr Bridge and Ms Spencer

[128]It is important for the Tribunal to stress that neither Mr Bridge nor Ms Spencer were called as witnesses by either party and therefore have had no opportunity to comment on the evidence presented during these proceedings. Suspension Review

[129]The claimant was informed by letter dated 8 June 2023 [page 167] (which appears to have been wrongly dated because within it Mr Clarke refers to having spoken to the claimant on 9th June) that her suspension had been reviewed and that it would continue to allow a fair investigation.

[130]There is no reference to any further consideration of alternatives. Evidence

[131]On 9 June 2023 Ms Spencer sent to Chris Clarke copies of emails and screenshots relating to matters she raised at the investigation meeting and referred to the claimant on 25 May having contacted one of the contractors Ms Spencer deals with daily and informing them not to contact Ms Spencer or Mr Bridge [page 1032].

[132]Email correspondence between the contractor and Ms Spencer appears to confirm that the claimant had requested that Ms Spencer and Mr Bridge were no longer to be copied into correspondence [page 324-326] with the contractor remarking in that email train: “I may have misunderstood but my understanding was communications were to go straight to Anna [claimant] going forward, no reason for this was given, I just presumed you may have left the company...”

[133]The respondent was reasonably concerned by this behaviour in the circumstances. Investigation meeting

[134]On 13 June [page 169] Mr Clarke invited the claimant to a further investigation meeting. The claimant made no mention of requiring any adjustments when accepting the meeting which was due to take place by Teams. First Grievance: 14 June 2023

[135]The claimant presented a grievance about her suspension from work.

[136]The claimant made no reference to her disability or the need for adjustments [page 520 – 521]. The claimant in essence complained that there had been a failure to consider alternatives before taking the decision to suspend and that it was a ‘knee jerk’ reaction.

[137]The claimant argued that this was a breach of the implied duty of trust and confidence and while not accepting that it repudiated the Contract at that time she reserved her right to do so; “I continue to accept my pay under protest. …I do not affirm and/or acquiesce to the erosion of the implied term of mutual trust and confidence.” Second Grievance: 15 June 2023

[138]The claimant submitted a further grievance about the disciplinary and grievance process [page 523 524]. The claimant in essence raised 5 complaints:• That she had not been provided with minutes of meetings

• A complaint under section 15 Equality Act 2010 in that the suspension had caused an exacerbation of her Long Covid symptoms

• Failure to consider the impact on her health of suspension

• A failure to make reasonable adjustments or refer the claimant to OH

• A request that the process to stop the investigation and refer the claimant to OH

[139]The claimant referred to her disability but made no reference to any adjustments that she identified she needed. Investigation suspended: 16 June 2023

[140]Mr Chris Clarke wrote to the claimant cancelling the investigation meeting pending the grievance investigation [page 172]. Acknowledgement of 1st and 2nd Grievances

[141]The claimant’s first and second grievances were acknowledged by HR on 18 July 2023, [page 246]. Evidence: Mr Bridge

[142]On 20 June 2023 Mr Bridge forwarded by email to Mr Clarke copies of the emails the claimant had received from the Aj Vlad email attaching the Teams message/chat between him and Ms Spencer and explained that these showed that the claimant had received the first 2 emails on 11th and 12th May but complained that they had not been disclosed to him by the claimant until 15th and 16th May and that he had asked that she report it to IT. He also attached screenshots of anonymous Instagram messages sent to his partner claiming he was having an affair with Ms Spencer [page 1036, 1041- 1056]. Grievance Hearing

[143]By email of the 26 June the claimant was offered 3 dates for a grievance hearing [ page 175]; 28 June, 29 June and 6 July 2023 on 26 June 2023.

[144]The claimant replied stating that she could accommodate any of the dates and left it for the respondent to select a date [page 175]. The claimant did not raise any concerns about the meeting, the time she would have to prepare or any adjustments she may require. Her reply was brief and courteous: “Thank you for your email. I can accommodate any of those dates/times, please let me know which would be most suitable for the other party.”

[145]The claimant was invited by letter of 26 June to a meeting on 29 June and was informed that this would be chaired by Mr Alder, a solicitor instructed by the respondent to act as a consultant, supported by Richard Ing as HR support.

[146]On 27 June the claimant confirmed that she would be attending but without union representation due to the short notice but did not ask to adjourn the meeting [page 181]. 29 June 2023: Grievance Hearing

[147]The meeting was conducted via Teams on 29 June to deal with both the grievances of the 14th and 15th June.

[148]The claimant covertly recorded the hearing and the transcript had been produced [page 182 – 192]. The respondent has also produced its minutes [page 201 205]. The respondent complains that this covert recording was not permitted under their disciplinary policy. However, the Tribunal have regard to the fact that the claimant had not been sent copies of the notes from the suspension or investigatory meetings by this point and a failure to provide copies of notes promptly makes it difficult to check the accuracy of them. The respondent should have been more diligent and sent the notes out promptly. However, the claimant could and should however have asked that she be allowed to record the meeting or ask that the respondent record it or asked to adjourn the meeting until she had a union representative with her to assist with note taking if she was concerned about the time it was taking to send her the notes.

[149]At the outset of the hearing Mr Alder asked the claimant to let him know if she required a break. The claimant did not raise any adjustments that she may require.

[150]Mr Alder explained that he would only be dealing with the issue around the suspension and the claimant confirmed that she understood the remit of the grievance.

[151]The claimant clarified that her complaint was that there was no reason to suspend her to allow for a full investigation to take place, that Mr Clarke had suspended her within ½ hour of being contacted by HR and there was no discussion about other options e.g. deployment. The claimant referred to a breach of trust and confidence. It was clear that she had either obtained advice and/or carried out some pretty thorough research on employment law. The claimant confirmed when asked expressly [page 184], that she was not repudiating the contract; “At this point, no.”

[152]The Tribunal consider that some of the language and questions put to her by Mr Alder were inappropriately legalistic for an investigation with a lay person, technical legal terms such as ‘repudiation’ are difficult legal concepts however, in this case the claimant had clearly informed herself about employment law, she says she has read law and has 2 law degrees and is clearly an intelligent individual able to understand those concepts.

[153]The claimant described the impact of the suspension in terms of the build-up of work she may have to return to deal with but also that as she cannot talk to colleagues or contractors, she was concerned people would think she had left and referred to the impact of the suspension both mentally and physically: “It’s completely ruined half a year worth of progress I’ve made with long covid. My symptoms are now worse than they have been in a really, really long time. And on top of that I have plenty of other medical issues that have been caused by this...”

[154]The claimant during the hearing referred to her blood pressure spiking but did not request a break. The claimant did not refer the Tribunal to any evidence that she attended her GP around this time for issues with her blood pressure.

[155]The claimant was also asked about her second grievance and asked to explain what she had communicated about her Long Covid condition and replies [page 185]: “It’s been communicated since I got the original infection in March 2020. My current manager and my director, who are apparently very heavily involved in all of this, are very acutely aware that I’ve got long covid and the kind of symptoms that come with it. I’ve previously sent information and I’ve talked to my manager, who is heavily involved in all of this, about it- so the employer should be acutely aware that I have long covid and that these kind of things , especially extreme stress this is causing me, will have massive adverse effects on my long covid and the symptoms of it.” Tribunal stress

[156]The claimant referred to having sent in a Fit note previously and the recommendations on the Fit note had been disregarded.

[157]The claimant complained that the respondent should have considered her condition when deciding whether to suspend and perhaps involved OH.

[158]The claimant had also raised complaints about a failure to make adjustments and explains that she feels some adjustments should be made with some input from OH. The claimant did not feel able to identify what adjustments she felt she may need [page 188]: “I’m requesting for a referral to occupational health, for the employer to liaise with occupational health to ascertain what reasonable adjustments would be reasonable to make for somebody with a medical condition such as mine.” Tribunal stress

[159]The claimant also raised an allegation again against Mr Alex Spencer alleging that the “entire thing was instigated by…his commentary, his inappropriate remark” to Ms Spencer. It seems the claimant blamed the remark from Mr Spencer to Jesseca Spencer for her decision to leave the claimant’s team, and it seems therefore for the offensive song lyrics that were then sent from the claimant’s phone. The claimant was it seems still not prepared to accept any responsibility for the messages that were sent on 17 May from her phone but clearly perceived Mr Spencer to be the person who set off the chain of events.

[160]The claimant raised that she had contacted IT to confirm that she had returned the equipment from Mr Bridge that he had handed into her when he had left the respondent previously, but she had not heard back from IT. The issues over whether she had access to his laptop was however not about the messages she had sent on 17 May to the Group WhatsApp. Grievance Investigation

[161]Mr Alder held an investigation meeting with Chris Clarke on 3 July 2023 [page 215-6]. Mr Clarke confirmed that he had been told to suspend the claimant in a Teams call with Mr Spencer, Ms Farish and Ms McCarthy of HR. Mr Clarke was candid, in that he accepted that he had not questioned the decision. He stated that he was aware that the claimant had Long Covid but had no knowledge of the symptoms. Mr Clarke understood that he had been asked to conduct the investigation because of a possible conflict, in that the claimant had previously raised a grievance against her own manager, Ms Farish and therefore it had been decided that Ms Farish should not conduct the suspension or investigation. Interview with Ms McCarthy on 3 July 2023

[162]Mr Alder met with Ms McCarthy on 3 July 2023 [page 217-8].

[163]Ms McCarthy confirmed that the decision to suspend the claimant had been made by her and Mr Spencer and this was because of the: “potential misuse of her management position and if she remained at work, she might have undue influence on the two colleagues.”

[164]Ms McCarthy did not indicate that any alternatives to suspension had been considered and commented that she was aware the claimant had Covid in the past but not that she had been signed off with Long Covid.

[165]Enquires were made to ensure the claimant’s work was being covered and Ms Farish confirmed by email on 4 July 2023 that it was [page 219].

[166]There is an email dated 5 July 2023 timed at 08:26 from Mr Alder to Mr Ing in which Mr Alder states that he will confirm to the claimant that the meeting notes of the suspension meeting and investigation will be sent to her and confirms that he “is now in a position to communicate his decision to the claimant” and that the “disciplinary investigation and proceedings should now be restarted.” [P813]. It is clear from the documents alone that Mr Clarke was only instructed to recommence his involvement in the disciplinary investigation after this date. Bonus

[167]On 6 July 2023 the claimant was informed by letter that a non-contractual bonus was going to be paid although the respondent had fallen slightly short of its Financial and Customer performance targets, a discretion has been applied to pay it to those who had met certain criteria which were set out in that letter [page 231]. The criteria included that the employee was not under investigation within any of the HR policies at the point at which time the bonus is processed for payment. The claimant was informed that she did not meet the criteria.

[168]The Disciplinary Guidance document [page 635] provides: “Clause 13: Pay review & bonus As MTVH expects a high standard of conduct from, you at all times this is taken into consideration when we are considering eligibility for bonus payments and pay reviews…. When we do the bonus and/or pay review if you have a final written warning that has not expired on your file then you will not be eligible for these. Where you have a first written warning that has not expired we will take the severity of the allegations into account when deciding eligibility for a pay review and/poor bonus payment”

[169]The clause does not refer to how an employee on suspension will be treated for the purposes of the bonus.

[170]The Contract itself makes no mention of bonus payments.

[171]The criteria as set out in the 6 July 2023 letter is different from what is set out in the Disciplinary Guidance and the respondent does not aver that it informed the claimant (or employees generally) of those different criteria prior to the decision being communicated about the payment of bonus on 6 July 2023.

[172]The Contract states that with regards to suspension the respondent shall have the right to suspend on “full pay and benefits” [page 86].

[173]To the extent the terms of the criteria were agreed through the Joint Consultation and Negotiating Committee (JNC), clause 22 of the Contract [page 88] provides that: “The organisation reserves the right to vary the terms of this contract or other terms and conditions which do not form part of this contract. Prior to any such variation the company shall give notice and consult and negotiate with the employees through the Joint Consultation and Negotiating Committee concerning proposed changes with a view to mutual agreement where possible. Where agreement is not possible the organisation reserves the right to give 28 days’ notice of implementation of any variation.” Notes

[174]The claimant was sent a copy of the grievance investigation minutes and she challenged their accuracy. The claimant unbeknown to the respondent had recorded the hearing and provided her marked up version of the notes on 6 July 2023 [page 221].

[175]In her email the claimant and requested that any and all communication going forward is done in writing via email. The claimant had not asked for the hearing to be recorded and the Tribunal note that as she was recording it she was able to refer to her full version and mark-up the notes accordingly. In her markup the claimant had identified some elements missed and some inaccuracies in the respondent’s own minutes however the Tribunal note that the essence of what was discussed was captured. The respondent had noted some things less helpful to itself, such as recording that the suspension had impacted on a year of her progress recovering from Long Covid when in fact the claimant had referred to half a year. The claimant in her markup notes also added some detail. Where she mentioned the spike in her blood pressure, she amends the respondent’s notes to add detail not set out in her own recording [page 202 / 224]: Claimant’s Recorded Notes: “I’m not really comfortable going through this bit by bit verbally. It’s spiking my blood pressure quite badly, so I’m struggling”. Respondent’s note: “Going through my grievance bit by bit is spiking my blood pressure “ Claimant adds in her mark-up: “Answer advised that she was uncomfortable going through the grievance item at a time, when the grievance was in itself hard to write in the first instance and that going through such in detail, weeks after grievances were submitted, made her uncomfortable and was spiking had blood pressure and that she was struggling.”

[176]The emboldened words were not recorded in the claimant’s covert recording and it was therefore disingenuous to add them. She had not complained that the grievance was hard to write and would only later allege that she suffers with ‘brain fog’ and ‘cognitive disfunction’. Written Communication

[177]Because she was not happy with how the notetaking had been carried out the claimant requested that all future communications are in writing only [page 220-1]. The claimant did not say that she needed the communications to be in writing because of her disability but because the respondent’s notes were not fully accurate. She did not ask that the respondent record the meetings. The respondent’s notes do state [page 201] that they are not intended to be a verbatim record. The claimant wrote: “In order to observe the natural justice, it is in both parties interest to have true and accurate notes on any meetings relation [sic] to this serious matter (s). As such, I am requesting and an all communication going forward is done in writing via email only.” [page 221] Tribunal stress

[178]The claimant now asserts in her claim that she needed any communication to be in writing due to her disability but that is not the reason she gave here and she was of course covertly recording the meetings in any event, which she continued to do. Disciplinary

[179]A Disciplinary Investigation Report was produced by Chris Clarke on 7 July 2023, prior to the claimant registering her next grievance on 1 August 2023, [page 232-239]. This grievance is the only Protected Act the claimant relies upon in respect of her claim of victimisation.

[180]The recommendation by Mr Clarke was for the matter to proceed to a disciplinary hearing. Mr Clarke was clear in his evidence that the decision to proceed to a disciplinary hearing was because: “the song lyrics and the content in them was not appropriate and it obviously made Ms Spencer and Mr Bridge feel threatened to the extent that they needed to bring it to the respondent’s attention. They viewed this as threats from their line manager.”

[181]Mr Clarke further confirmed that in terms of the Group WhatsApp chat and whether its content was work-related, his findings were that: “the title of the group is the respondent, both Ms Spencer and Mr Bridge confirmed that they had work chats on the group and the claimant had also confirmed that she had shared work related activity.”

[182]The claimant did not put it to Mr Clarke in cross examination that the findings he made in his report were because he anticipated that the claimant may bring a grievance. Indeed, the claimant never put it to any witnesses that any actions they took were because they expected the claimant to raise a further grievance/Protected Act.

[183]In cross examination Mr Clarke gave evidence that he had been told to complete his investigation by Alex Spencer although he had wanted to ask some more questions before completing it but could not recall what those questions were that he wanted to ask but he had been told to complete his investigation report. He believed that because a grievance had been raised against him, it was no longer appropriate from him to continue to investigate and he should complete his report based on his findings so far.

[184]The Tribunal take into consideration that it may have been seen a pretty clear-cut case of misconduct in terms of the offensive song lyrics having been sent from the claimant to her direct reports and given the delay in progressing it because of the grievance investigation, there was a keenness move forward with the process. While Mr Clarke had clearly felt he would have liked to ask further questions, the Tribunal have regard to the fact that it did appear to be a rather straightforward case, and while there was a dispute over whether the WhatsApp was work related, that was matter which could be explored further at the disciplinary stage (albeit the claimant in attaching the work Teams chat had herself introduced work related matters on to the Group WhatsApp.)

[185]The claimant confirmed in discussion with the Tribunal panel and the respondent counsel during the hearing on 3 October 2025, that she was not asserting that there was a failure to make reasonable adjustments or raising an indirect discrimination claim in respect of the suspension itself or the investigation process. Grievance Outcome: 10 July

[186]Mr Alder wrote to the claimant by email on 10 July 2023 setting out the outcome from the first and second grievance [page 246-248] and confirms that it had in fact been Mr Spencer and Ms McCarthy who had decided to suspend her and not Mr Clarke.

[187]He explains his finding that the suspension was appropriate: “Both were concerned that in circumstances where allegations had been made by your team members, about you, as their manager or someone to whom they reported in, it was appropriate to remove you from the business while those allegations were investigated, to protect both those individuals and to protect you, and to ensure and enable an impartial investigation to be undertaken…”

[188]What Mr Alder fails to respond to is the allegation that no alternatives were considered. His letter is silent on this point and the Tribunal note that the meeting notes with Ms McCarthy do not record this being explored with her. The Tribunal consider that his investigation was deficient in this respect although the Tribunal accept that given the claimant’s relationship with her small team, continuing to manage them would not have been an option and she would have had to be temporarily removed from her normal duties.

[189]The claimant had [page 184] raised in the meeting with Mr Alder that other options such as deployment or separation should have been considered. Mr Alder states that the decision to suspend was not ‘irrational’ and points to the respondent having the contractual right to suspend (Contract para 13).

[190]Mr Alder referred to the fact the claimant had not yet been sent the notes from the suspension and investigation meeting and explained that he had recommended these were provided.

[191]In terms of the complaint that the impact of the suspension exacerbated her symptoms of Long Covid, he explained that he did not accept that the treatment was on the grounds of disability: “The decision to suspend you was unrelated to any long Covid symptoms from which you suffer, rather it was to allow a full and fair investigation in relation [sic] allegations made against you.”

[192]The Tribunal note however that the claimant was not in the meeting alleging that she had been suspended because of her disability but that the impact should have been taken into account when considering whether to suspend. As she stated in the grievance meeting: “I’m saying the employer needs to consider the medical condition and the effects of what the suspension would do to that condition.” [page 186]

[193]Mr Alder does go on state that in terms of the stress exacerbating her symptoms: “Ms McCarthy confirmed to me that she was aware that you were suffering from long Covid but that she did not regard this as a reason not to suspend you, I do not believe it is reasonable to require an employer to refrain from investigating allegations of gross misconduct – and, where it believes it appropriate, imposing a period of suspension …” Tribunal stress

[194]The notes of his meeting with Ms Carthy record Ms McCarthy stating that she had checked whether the claimant was off sick at the time of the suspension and she was not. She was aware the claimant had Covid in the past but not that she has been signed off with Long Covid and they had discussed how to minimise the stress for her. There does not therefore appear to have been any consideration given however to the claimant in the context of her disability, there is no reference to this in any documentation relating to the suspension

[195]Mr Alder also states that with respect to the complaint of a failure to make adjustments to the disciplinary process, he refers to the claimant being unable identify any, (outside of a referral to Occupational Health, which is not of itself an adjustment) and in any event finds the decision to proceed to a disciplinary hearing be a reasonable one.

[196]The claimant had not suggested any alternative adjustments even in broad terms that would ameliorate the alleged substantial disadvantage i.e. the stress of the suspension, other than not to have been suspended in the first place. However, he made no recommendation that going forward, it would be advisable to refer her to OH and indeed that never happened, had the respondent done so, it may well have had a clearer understanding during the process of the claimant any actual disadvantage/adverse effects.

[197]The claimant was informed of her right to appeal by 17 July, within 5 working days and told to write to Khilna Chandarana, Head of People (Development). The claimant was not carrying out any work for the respondent at this time but remained on paid suspension. Appeal: 17 July 2023

[198]The claimant appealed the grievance outcome in a lengthy letter emailed on 17 July 2023 [pages 249-262].

[199]The Grievance Policy is silent about timings however the Grievance Guidance document [page 628] provides at paragraph 10.2.2 that: “Your appeal will normally be heard within 10 working days after we received it.”

[200]And at paragraph 10.2.3 provides: “The appeal hearing manager will usually send a written outcome to the appeal within 10 working days of the date of the appeal hearing which will explain to you the reason for the decision.” [page 629].

[201]Khilna Chandarana confirmed receipt of the appeal on 18 July 2023 [page 246] and explained that she would come back to the claimant with the next steps. Within the appeal, the claimant complained that the suspension was a breach of section 15 Equality Act 2010 and complained of a failure to make reasonable adjustments to the disciplinary policy. The letter was largely setting out legal principles and the law and alleging a failure to identify the ‘something’ arising from the disability and a failure to investigate conscious and unconscious bias. In terms of the section 15 claim, that claim is not part of the claims before this Tribunal to determine and the claimant appears to have misunderstood the application of that provision. The claimant referred to the impact of the suspension on her symptoms as set out in the grievance letter including: “chronic fatigue, inflammation, insomnia, blood pressure, ability to consume food and depression” [page 250].She does not allege in this letter that she was suspended because of something arising from her disability but appears to be linking the exacerbation of her symptoms on the act of suspension.

[202]The claimant continued to challenge the decision to suspend in this appeal letter and whether alternatives had been considered, alleging it was a ‘knee jerk reaction.’

[203]The claimant also complained that giving her 5 days to appeal the grievance put her at a disadvantage because of her symptoms. The claimant had not asked for an extension of time and rather than notify them that she wished to appeal and follow that up with the expanded letter, she submitted all 13 pages by Monday 17 July 2023. That is a pattern in the way the claimant conducted herself, she did not ask for extra time or adjournments but then complained that she had carried out a lot of work in putting together lengthy documents and that she had suffered a disadvantage because of her condition in doing so. Arranging the Appeal

[204]The appeal hearing did not take place within 10 days of the respondent receiving the appeal application i.e. by 27 July. The Tribunal accept that the reason for this was because Ms Chandarana was on leave and arranging the appeal was passed to Mr Ing. The Tribunal heard unchallenged evidence from Ms McCarthy about Mr Ing’s heavy workload around this time, which on balance it accepts. The request was dealt with by Mr Ing [page 267] and he emailed the claimant on 24 July 2023 explaining that Ms Chandarana was on leave and he was working to identify someone to hear her appeal. There are emails to and from Mr Martin and Mr Ing on Monday 24 July arranging for Mr Martin to hear the appeal. Mr Martin confirmed that same day that he could assist and the hearing would be held 8 working days later.

[205]The claimant in cross examination clarified that she was not really complaining about how long it took Mr Martin to deal with her appeal and send her the outcome letter but about the delay in appointing him in the first place. When it was put to the claimant in cross examination that her expectations of Mr Martin were unrealistic and that in 16 days, he had carried out 4 interviews, met with the claimant and produced his outcome letter, her response was: “The appeal was raised on the 17 July, I did not meet with him until 3 August, initially it was set for Khilna [Chandarana] to do investigation on 17 July, she confirmed receipt, not reasonable for such a delay, saying Khilna on annual leave, she would have known when leave would be …then told she was on leave and need to appoint another person.”

[206]The claimant was asked whether she was saying that the delay in the grievance appeal was due to her disability to which she answered; “I am suggesting that it was because of lodging my grievance on 1 August 2023.”

[207]The Tribunal note that the LOI 9.3.8 refers to a failure to provide timely grievance outcomes as an act of victimisation. However, the claimant clarified that what she is complaining about is a delay as a result of Ms Chandarana taking leave which she was not made aware of in the outcome letter, however the Tribunal find that events around Ms Chandarana not communicating about her leave and Mr Ing appointing Mr Martin all took place before the Protected Act was made i.e. before 1 August 2023:

[208]Further, the Tribunal find that neither the grievance outcome letter nor the acknowledgement from Ms Chandarana stated that Ms Chandarana would actually be the person hearing the appeal and the Tribunal accept on balance, (although the claimant appears to have assumed otherwise) that Ms Chandarana of HR was the point of contact but she was not going to chair the grievance appeal. Further, the claimant did not in cross examination dispute that Ms Chandarana was genuinely was on leave but complained only that she should have appointed someone else before she was identified in the outcome letter as the person to appeal to because she must have known that she was going on leave. The Tribunal find that the claimant was mistaken, and that Ms Chandarana was only ever to be the contact person in HR who would organise the appeal (and in any event, if she had made a decision not to tell the claimant before 14 July that she was taking leave, that cannot have been because of the 1 August protected act). 20 July 2023

[209]On 20 July, before the claimant filed her grievance of the 1 August 2023, a Team meeting took place to discuss preparation or for a disciplinary hearing between HR and the disciplinary officer [page 1094].

[210]The claimant conceded in cross examination that there had been a decision made prior to 20 July 2023 (before her Protected Act) to appoint Ms Cornthwaite as the disciplinary office. Disciplinary

[211]Mr Ing contacted Janet Cornthwaite on 20 July 2023 to discuss the claimant’s case [page 1094].

[212]On 24 July 2023 Mr Ing emailed Ms Cornthwaite the documents relevant to the disciplinary proceedings along with the Disciplinary Policy and Guidance [page 264].

[213]On 24 July 2023 it appears a letter was prepared informing the claimant that she was required to attend a disciplinary hearing on 7 August 2023, in the event the letter (although the date of the 24 July was not changed) was not sent out by email to the claimant until 1 August timed at 4:31pm [page 424]. It attached the evidence and disciplinary policy and a warning that this may result in dismissal. Ms Cornthwaite in cross examination denied any knowledge of the Protected Act on 24 July, and the claimant did not challenge her evidence on this. Ms Cornthwaite did not know why the invitation to the disciplinary was not sent out until 1 August but presumed this was due to Mr Ing’s workload at the time.

[214]The disciplinary invitation letter was therefore sent out about 3 hours after the claimant had emailed across the grievance on the 1 August (sent on 1 August at 1:34pm) [page 292] and thus this the Tribunal finds accounts for the claimant’s (mistaken) belief that the decision was made to proceed with the disciplinary hearing because of her 1 August

[215]There was no reference to any adjustments the claimant may require within this letter.

[216]There was no proposal to make a referral to OH to assess the claimant’s condition and what adjustments she may need. Internal Communications re appeal

[217]On 26 July 2023 with reference to her appeal, the Mr Martin, Director financial Services who had been contacted to chair the grievance appeal, read the documents and asked the following of Mr Eng [page 268]: “Did we consider other options besides suspension on full pay. If we did why isn’t it mentioned somewhere? If we didn’t why not? Disability Do we consider Anna’s long covid as a disability? Did her manager have any conversations with her regarding reasonable adjustments? This area doesn’t seem to have been considered in the grievance investigation but from experience it is an area where need to be proactive in our duty of care... I feel like I need to interview everyone concerns to be able to ally my concerns. I believe this requires a very thorough investigation.” [ page 26]

[218]Mr Ing replies that Mr Martin had raised some very valid points and suggests they meet to discuss this. There is no record of what was discussed however Mr Martin asked the claimant about her condition at the hearing and asked her about adjustments.

[219]On 26 July 2023 there are emails exchanged between Mr Ing and Damien Martin trying to arrange a date for the grievance appeal hearing in which Mr Ing refers to the disciplinary hearing taking place on 7 August and therefore wanting to avoid that date [page 1057]. Grievance Appeal for 1 & 2nd Grievance

[220]A letter was sent to the claimant on 27 July at 3:29pm inviting her to an appeal hearing on 3 August 2023 via a Teams meeting with Mr Martin [page 271-2].

[221]The claimant was informed that Mr Martin had identified the ‘knub’ of the appeal namely that the grievance was not properly investigated in that the investigation did not explore the support she received with respect to her disability, alternatives to suspension were not explored and she was treated unfairly as consideration was not given to the effect a suspension may have on her health.

[222]The claimant was informed that she may explain her grounds at the hearing, she may include new evidence or she may if she preferred write to him in advance and set out her position in writing and he states that he will send an outline of the questions he intends to ask but explains that he may ask supplementary questions if he feels he needs to explore something.

[223]The letter explained that the claimant should take all reasonable steps to attend the appeal hearing, which is consistent with the wording of the respondent’s Grievance Guidance document and that if she does not attend a decision may be made on the information available but will reschedule if the reason for non-attendance is beyond her control and unforeseeable [page 271]. Request for adjustments

[224]On 27 July 2023 at 4:37pm [page 273] the claimant sent in an email with 19 questions she wanted put to the witnesses in respect of the disciplinary process. Many of the questions were not directly relevant to the alleged offensive WhatsApp which the claimant did not deny had been sent from her phone to Mr Bridge and Ms Spencer but appeared to relate to the suspicions that the claimant had sent the anonymous emails, which was not offence she was being charged with.

[225]The email also included a request for reasonable adjustments; it is a 3 ½ page letter but in summary the request was for [page 276 -279]:• To conduct the disciplinary and grievance procedures in writing with no meetings in person, via video or phone calls

• To be provided with a list of questions

• That OH advice is sought

[226]The claimant goes on to state that if those adjustments cannot be met, she requested:• Minutes of meetings immediately after the meetings

• To appoint a competent and impartial person

• All the evidence and allegations provided no less than 5 working days of her email.

[227]The claimant makes other requests not related to reasonable adjustments for her disability e.g. for provision of 1-2 months of messages between her and the Contract Managers, and asked that various matters she had already raised were addressed which concerned the behaviour of others e.g. the conduct of Mr Spencer in terms of what he had said to Ms Spencer about the department and Ms Farish not conducting a return-to-work conversation etc. [age 278] Meeting

[228]On the next day, on the 28 July [page 288] the claimant replied to Mr Martin’s invitation to the appeal hearing and despite her email of 27 July to HR stating that a reasonable adjustment would be to only communicate in writing, she now confirms that she will attend the hearing, says that she has emailed her union representative to attend with her and asks for his questions. She does not raise any concerns about the hearing taking place via Teams and does not request that it is conducted in writing only.

[229]The list of questions was sent to the claimant on 1 August 2023 at 17:17 [page 290]. This was quite short notice however there are only 14 pretty straight forward questions which include a number of questions about her condition and whether a referral to OH had been discussed with her and about possible alternatives to suspension. 1 August 2023: 3rd Grievance – Protected Act

[230]The claimant filed a third grievance on 1 August 2023 [page 293-307]. It was lengthy, just over 14-pages. This grievance now raised allegations about excessive workload and what was alleged to be bullying and harassment by Ms Farish and Mr Spencer. The claimant mostly made general statements about the employer’s obligations and general comments about bullying and ignoring her excessive workload. The claimant had raised a grievance about her workload in 2022 and appears not to have raised any issues since, until following the decision to proceed to a disciplinary hearing. She now referred to various incidents including a meeting with Mr Woodward, Mr Farish’s manager, back in November 2022, a lack of one to ones with her manager with the last being back in December 2022, the lack of a return to work conversation after her short period of work on 17 May 2023 and asking that a stress risk assessment be undertaken and alleges that ‘long exposure’ to ongoing work related stress is effecting the symptoms of her Long Covid and refers to chronic fatigue, inflammation, insomnia, blood pressure and depression.

[231]It was emailed at 1:34pm. It was sent only to Mr Ing and Ms Henderson of HR [ page 292].

[232]The claimant relies on this grievance alone as a Protected Act for the purposes of the section 27 Equality Act 2010 claim of victimisation.

[233]The Tribunal find that it is clear from the evidence, including contemporaneous documents, that the respondent had made the decision following the outcome of the grievance conducted by Mr Alder, to proceed with the disciplinary hearing before the claimant’s putative Protected Act on 1 August 2023. This grievance did not explain the sending of the WhatsApp messages on the 17 May. Ms Cornthwaite

[234]The evidence of Ms Cornthwaite is that she did not see the grievance of 1 August 2023 [w/s para 8 and 10] until after 1 August 2023 and thus after the claimant was sent the invitation to the disciplinary hearing on 1 August [page 310-11], [page 367]. Ms Cornthwaite was unsure whether she even noticed the reference in the 2 August 2023 grievance which she was copied into, to the 1 August grievance [page 370 – 371].

[235]In cross examination of the claimant, the claimant claimed that Ms Cornthwaite had knowledge of her 1 August grievance on the basis that Mr Ing did, she put forward no other basis for her assertion that Ms Cornthwaite had knowledge of its content and on balance the Tribunal accept that Ms Cornthwaite was unlikely to have taken the time to read through a lengthy grievance until such time as she may need to do so but in any event, the decision to proceed with the disciplinary hearing had been taken before ethe 1 August. Disciplinary Invitation

[236]The letter inviting the claimant to the disciplinary hearing set out the same two offences (albeit mistakenly the Tribunal accept it referred to the 8:57am message on 17 May 2023 having been sent to Mr Bridge, when it was in fact sent to Ms Spencer). The evidence was attached with it including minutes of meetings with Mr Bridge and Ms Spencer.

[237]The claimant was advised of the right to be accompanied and offered the right to provide documentary evidence.

[238]The claimant was given 6 calendar days’ notice of the hearing.

[239]The disciplinary hearing never actually took place.

[240]The claimant was provided with no less than 3 days’ notice to provide any written documentation she wished to rely on. In cross examination it was put to the claimant that she had been given 4 working days to which she argued quite rightly in the Tribunal’s view that the notice should start from the day after the letter was received on 1 August at 16:31, which would make it by her own calculation 3 working days’ notice that she was given.

[241]The claimant in cross examination alleges that after receiving the invitation to the disciplinary hearing [page 310], she had a ‘massive crash’ and was signed off as unfit for work the next day by her GP i.e. on the 2 August. She did not clarify what the symptoms of this ‘crash’ were. Despite this at 22:12 on 2 August, the claimant wrote to Mr Martin about the hearing on the 3 August, making no mention of a ‘massive crash’ that day or stating that she could not attend the meeting with him. 2 August 2023: 4th Grievance

[242]The claimant submitted a further grievance against Ms Cornthwaite on 2 August 2023 alleging disability discrimination [page 370-377]. This now alleged unlawful victimisation, less favourable treatment, unfavourable treatment, indirect disability discrimination, ongoing failure to make adjustments and breach of trust and confidence. The claimant also claimed she had ‘blown the whistle’. The claimant alleged that having submitted a grievance on 1 August she was then called to a disciplinary hearing and complained that being called to a hearing by video link put her at a disadvantage due to her diminished cognitive function, ‘brain fog’ and impaired memory function. It is a detailed letter, citing case law and statutory provisions throughout. It is essentially seeking a stay of the disciplinary and if and when it proceeds, for it to be conducted in writing.

[243]Within this grievance letter, now alleged that attending the disciplinary hearing by video link would put her at a disadvantage because of Long Covid. Despite this, she attended the grievance appeal hearing chaired by Mr Martin by Teams with her union representative in attendance. The claimant did not complain that she could not attend this Teams meeting because of her symptoms of Long Covid.

[244]In the 2 August grievance [page 371] she alleged that she suffered diminished cognitive function, brain fog and impaired memory function, she did not explain what this prevented her from doing and to what degree and whether this had become worse over the recent period, (given that she had successfully been carrying out a very responsible role which included holding meetings over Teams).

[245]In cross examination when asked if she was alleging that from 4 August (the claimant suggested it should be from the 2 August) up to 20 September, she was not capable of carrying out any meetings by Teams or in person, she gave evidence that: “I could have but I would have immensely struggled, which I did, felt like I had concussion, so harder to process and communicate effectively, not confident could advocate for myself.”

[246]The GP Fit note recorded no such limitations or concerns.

[247]Ms Cornthwaite gave evidence that before 2 August she had no knowledge of the claimant’s Long Covid condition and while she received the 2 August email, she then received the 3 August email the next day which she took as an indication that the claimant wanted to proceed with the disciplinary hearing and the only adjustment she now asked for was to change the date of the hearing to allow her union representative to attend.

[248]In cross examination the claimant did not dispute that she had not asked on 3 August adjourn the disciplinary hearing to be carried out by Teams, for any reason other than the unavailability of her union representative.

[249]It is not disputed that the disciplinary hearing did not proceed due to various availability issues. The claimant was asked to provide her dates of availability for after 29 August 2023 when Ms Cornthwaite was due to return from leave but the claimant never sent them and was not chased for them because in the event she resigned before the hearing was rearranged [p423-4].

[250]The evidence of Ms Cornthwaite was that she expected to be removed from chairing the disciplinary because of the grievance brought against her, albeit this grievance appears the Tribunal notes to have been predicated largely on a misunderstanding about the timing of the decision to proceed with the disciplinary hearing, the claimant believing it to have been in response to her 1 August grievance. Ms Cornthwaite, as the claimant rightly points out in her submissions, gave evidence that she would have accommodated reasonable adjustment requests, but took no action upon receipt of her 2 August email but in cross examination gave evidence that she would expect HR to deal with any OH report. In any event, no disciplinary hearing took place.

[251]Ms Cornthwaite gave evidence in cross examination that she has no experience of a grievance and disciplinary processes running at the same time, and the claimant refers to this as evidence of a difference in the treatment of her grievance. However, in response to a question from the Tribunal Panel, Ms Cornthwaite explained that she had never had experience of someone actually raising a grievance during a disciplinary process. Further, the Tribunal note that the disciplinary hearing had been stayed while the first and second grievances were addressed and it would be unreasonable to expect an employer to keep delaying a disciplinary hearing to deal with further grievances where such grievances have no direct bearing on the actual offences the employee is charged with or could be dealt with as part of the disciplinary process to the extent there was any cross over.

[252]The Disciplinary Guidance [p. 645] makes it clear that: “If you decide to raise a grievance during the disciplinary process then we will arrange a grievance hearing or you and both processes will run at the same time. We may determine that the disciplinary process needs to be temporarily paused whilst we deal with your grievance. This will be decided on based on each case individually and will be by exception.” Tribunal stress

[253]Ms Cornthwaite’s evidence was that when the letter inviting the claimant to the disciplinary hearing was sent out, she was unaware of the claimant’s condition and the claimant did not challenge this in her cross examination of her. The claimant did not put it to Ms Cornthwaite that she had victimised or harassed her. The claimant also did not put to Ms Cornthwaite any questions to establish what knowledge she had of the claimant’s disability at the relevant time. Ms Cornthwaite in response to questions from the Tribunal Panel stated that she did not know how long the claimant had the condition for. Replies to questions

[254]On the 2 August 2023 at 10:12pm the claimant sent to Mr Martin and Mr Ing her written answers to the 14 questions Mr Martin had sent her [page 378]. Mr Martin had not asked that she provide any written answer. The claimant’s document setting out her answers and further points she wishes to make, was extensive amounting to a document of 23 pages [page 339- 402]. She stated within the covering email that she had been put at a substantial disadvantage in terms of how long before the hearing the questions had been sent to her. However, the Tribunal have regard to the fact that the claimant was not required to provide written answers and she did not ask for more time in which to do provide them and had not confined her document to replying to the 14 questions but had chosen to set out a significant amount of additional information. .

[255]The claimant did not describe having had a ‘massive crash’ that day as she alleged she had in cross examination but explained the effects of her condition as: “…adverse effects which my long COVID has on my cognitive function and thought process.”

[256]Because of some of the language contained within her document, the respondent’s filters had blocked the email and Mr Martin could not immediately access it.

[257]Within the document the claimant set out some further information about her disability: “In end of January 2022/start of February 2022 I had a mental breakdown due to extreme work stress and such having a significant detrimental effect on my long covid symptoms, I discussed this with my GP who had provided a FIT note requesting alternative to hours and workplace adaptations. This was ignored by my manager, in consideration of this and my managers historical bullying I had no choice but to raise a formal grievance. …

[258]The claimant also set out what she appears to have considered to be relevant background including that Karen had contacted her initially on Instagram on 18 August 2022 accusing the claimant of having an affair with Mr Bridge. She also set out background events concerning Ms Spencer and Mr Bridge’s conduct at a social evening at which she was present in October 2022. The claimant referred to another event in November 2022 concerning a complaint she had raised about another colleague, unrelated to the events of May 2023, but complained that Ms Farish did not deal with the concerns and thus she escalated them to Mr Spencer. She mentioned how Mr Bridge and Ms Spencer would come to her house to play video and board games with her [page 381] and provided details about a conversation with Mr Spencer in January 2023 about progression and a pay rise for Ms Spencer and how she had told him that if Ms Spencer left the claimant would also leave. The claimant referred to various unrelated social events including Ms Spencer spending the weekend with her partner, the claimant and the claimant’s friend in April.

[259]The claimant referred to bullying in terms of excessive workload and that Mr Bridge had told her on 16 May 2023 that Ms Spencer had applied for another job. She referenced the alleged comments by Alex Spencer at the work event on 21 April 2023 to Ms Spencer. She set out the exchanges between Ms Spencer and Karen about the claimant which Karen had provided to the claimant. The claimant explained how she had taken leave from 25 April 2023: “The holiday …had allowed me to feel relief in years, my long covid symptoms had significantly improved in this time for the first time since March 20202 [sic]…” [page 384]

[260]The claimant went on to explain how she had been on annual leave on 10-12 May 2023 for her birthday on 11 May. That Ms Spencer had visited her at her home on 10 May to give her a birthday gift, even setting out what the gift was and how Ms Spencer had booked for them to see a male stripper and the arrangements were discussed on the Whatsapp Group chat along with Mr Spencer mentioning on it what he was buying the claimant for her birthday. Further comments about intimate personal discussions with Ms Spencer were set out.

[261]The claimant, 6 pages into the document refers to the events of the 15 May and the claimant states that she returned to work on 15th May to face an overwhelming number of emails and among them was the start of harassing emails sent to her by Aj Vlad. The first had been sent on 12 May and was accusing her two direct reports of having an affair. The second email from Aj Vlad was dated 11 May but she only received on 16th May which accused her two reports of stabbing her in the back and alleging critical and defamatory comments had been made by them about her. The claimant states in this document that on the 15 May she opened the last email (which would appear to suggest that the claimant in fact saw all 3 emails on the 15 May) and this included the screen shots of the Team chat between Ms Spencer and Mr Bridge. She asserts in this email that she did not believe the anonymous emails until the saw the Team chat and then: “I did not believe the allegations … until I saw the exchanged messages, with my closest friends betraying me and ending our friendship since 2016.” page 385] Tribunal stress

[262]The claimant states that she was not upset that Ms Spencer had looked for another job but it was the comment about her ‘ruffling feathers and starting fires’ and alleged that the claimant had treated Ms Farish badly. Ms Farish had taken extended time off work as a result of the allegations/grievance in 2022 made by the claimant and Mr Bridge and Ms Spencer were clearly expressing sympathy and support for Ms Farish in this exchange which clearly the claimant considered a betrayal. She alleges that at first she was not sure who Mr Bridge was exchanging the messages with.

[263]The claimant relates how she shared the emails from Aj Vlad with Mr Bridge on 15 May. She then states that she had told Mr Bridge to refer the matter to HR and she would speak to Ms Farish. The screenshotted messages she says were then received and she sent those to him and he spoke to her, explained that they were between him and Ms Spencer and that Ms Spencer had looked for another job after a conversation with Mr Spencer. Ms Spencer was on annual leave until 16 May. On 16 May 2:20pm Ms Spencer, having been made aware of the messages the claimant says she received, contacted the claimant by Facebook messenger. That is the message stating the claimant was her closest friend.

[264]On 16 May she alleges in this document that she had told her best friend Sonny about what had happened and spent the evening it seems discussing it with him and she describes the impact: “I was in and out of crying spells. At this point in time, I had only confided in Sonny about this and my devastation over the betrayal and the end of our friendship... Sonny was very unhappy over how his best friend was treated and that this had caused his best friend so much pain and tears.” Tribunal stress

[265]This document is in effect a witness statement such is the level of detail. What the claimant does not allege in this document is that she had contacted Ms Farish before 17 May to report the events or been in contact with HR or IT to report that someone appeared to have been sending to her work address malicious emails and that someone had apparently hacked into the respondent’s Teams account and accessed messages sent between her direct reports on the work Teams platform.

[266]The Tribunal do not find on balance, that the claimant had on 15 or 16 May reported any of these matters to anyone else within the respondent, other than Mr Bridge.

[267]The claimant in this document [page 388] goes on to allege that without her knowledge Sonny sent the Spotify links from her phone to the Whatsapp Group and that he had access her phone.

[268]The claimant goes on in this document to explain why she did not see the messages: “I have a longstanding habit of deleting any conversations that will cause me trauma and worsen my long covid symptom, deleting any aggravating [sic] conversations before I go to sleep .I had no knowledge of any Whatsapp Spotify links until my notice of suspension, after such I questioned Sonny about this. I had believed he had sent an entirely different song in wracking my brains on what was possibly sent. The song I thought was sent and referenced [ sic] to in my suspension notification is particular song lyrics containing explicit and offence [sic] language “ “was song by Machine Gun LKelly and The Kid LAROI.. I next read Jesseca’s private Whatsapp response on 17th May 2023 starting at 06:49am right before I was due to start work at 09:00am.” Tribunal stress

[269]This account, that she had deleted messages is not however consistent with what she had said initially when interviewed by Mr Clarke in the investigation meeting: “Chris Clarke: Do you remember sending the lyrics? Claimant: I had a friend with me, he was the [one] who sent it. … Chris Clarke: “Then 20 mins later, you are telling me that your friend sent the links to those songs? Claimant: He sent the message and I wasn’t aware Chris Clarke: Did you not look at the links and wondered who sent it? Claimant: No

[270]At no point did the claimant assert that she had deleted the messages on her phone before she went to sleep.

[271]In cross examination the claimant asserted that she and Sonny allowed each other fingerprint access to each other’s mobile telephones. Sonny

[272]In terms of the claimant’s account of what happened on 17 May, she had when she was first spoken to by Mr Clarke, blamed her friend for sending the messages. During the process she had not said that her friend would provide a statement to confirm he had sent the links, she did not produce anything in writing from him accepting responsibility for the messages, despite the potential impact on her employment and the closeness of their friendship. The claimant did not call Sonny as a witness to these proceedings and he did not attend to provide any support. Fit note and grievance: 2 August 2023

[273]The claimant was sent the invitation to the disciplinary hearing on 1 August [page 367] and then promptly submitted the Fit note for “work related anxiety and stress” and “Long Covid”.

[274]The Fit note stated that the claimant had been assessed on 2 August 2023 and that she was unfit for work until 16 August 2023 [page 418]. It did not set out any functional effects or any proposed adjustments. It did not state she that she was not fit to attend a meeting with her employer.

[275]Mr Ing sent the Fit note to Ms Farish on 3 August 2023 at 13:15pm to register it [page 417]. Usually, the Tribunal find that the respondent’s normal practice is that the person’s direct line manager would confirm receipt of it to the employee however, at this time the claimant gave evidence in cross examination that she had no contact with Ms Farish because the terms of her suspension were that she was not to contact colleagues.

[276]The sick note was however processed and the claimant’s absence was changed from suspension to sickness [page 417].

[277]The respondent invites the Tribunal to accept that the correspondence from Mr Ing at 13:15 suggests that the fit note may not have been received until 3 August 2023, [P417] and the more likely explanation is that the respondent was unaware of the fit note until after the grievance appeal hearing which took place at 10am on 3 August.

[278]There is email evidence [page 366] that the claimant sent the Fit note on 2 August 2023 at 11:09 am to Mr Ing and Ms Cornthwaite along with the 2 August grievance. The Fit note was not sent to Ms Farish until the next day and there is no email informing Mr Martin about it.

[279]The Tribunal find on balance that the sick note was sent on 2 August but not processed until the next day however, the Fit note does not state that the claimant is too unwell to attend the grievance appeal hearing and the grievance she sends with it does not sate that she cannot attend the grievance hearing either. In the grievance she sent with the Fit note she repeatedly state that the disciplinary hearing should be stayed until after the grievance has been dealt with but she does not request that the grievance process is stayed: “The ‘requirement’ to attend the disciplinary hearing in person via video link is the ‘something; which puts me at a disadvantage because of my disability.”… “To stay the disciplinary hearing until such time as the grievances, which I have raised in my grievance letter dated 1.8.23, have been investigated and outcome provided…” Tribunal stress

[280]The claimant has clearly carried out a lot of legal research and cites case law and the principles around indirect discrimination and reasonable adjustments and while she asks that the disciplinary hearing is stayed and objects to attending that hearing in person, she does not raise these concerns in the context of the grievance appeal hearing which the Tribunal find she was happy to attend and did attend [pages 370- 377].

[281]In terms of being able to submit written representations rather than attend a grievance hearing, the claimant in cross examination confirmed that she was familiar with the grievance policy; “I had read the Policy intently over and over again so I was familiar with it”… Cancelled Disciplinary Meeting

[282]On the 3 August the claimant wrote explaining that her union representative was not available on 3 August and offered alternatives dates of 16 or 17 August [page 424] to attend the disciplinary hearing however, Ms Cornthwaite was to take some annual leave and wrote to the claimant on 7 August asking the claimant to provide some alternative dates after 29 August [page 423]. The claimant agreed to discuss alternative dates with her union representative and did not raise any issue about postponing the hearing beyond that.

[283]The claimant did not state within her emails that she wanted the hearing to be adjourned because she did not feel well enough to attend.

[284]The proposal at that stage was to hold the hearing after 29 August when Ms Cornthwaite was due to return, The Fit note would also have expired by this date.

[285]Ms Cornthwaite gave evidence in chief which the Tribunal accept, that had the claimant asked for more time to prepare for the disciplinary hearing for health reasons, she would have considered it and likely accommodated it and that it is not unusual for colleagues to ask for more time and for this to be accommodated if reasonable [w/s para 16].

[286]When Ms Cornthwaite returned from leave and enquired about an update on the disciplinary process she was informed by Mr Ing on 30 August that it was on hold because the claimant had resigned. Knowledge: Mr Martin

[287]In terms of the knowledge of Mr Martin, the Tribunal find that by the 3 August, he was aware that the claimant had Long Covid and that it had lasted more than 12 months. The claimant had provided details in her answers to his questions [page 400] and set out a link to the symptoms and referred to suffering from most of those. With respect to fatigue however, the claimant did not in this letter or in the meeting explain the extent of her fatigue in particular. However, in cross examination Mr Martin confirmed that he had seen, prior to the 3 August 2023, a copy of the claimant’s letter of the 15 June 2023 [page 523] in which she refers at paragraph 3 and 4 to having Long Covid and refers to symptoms of ‘Chronic Fatigue’ as well as other alleged symptoms.

[288]The claimant had also copied Mr Martin into her 1 August 2023 grievance letter [page 286] by email dated 1 August timed at 13:45 in which the claimant refers to the symptoms of Chronic Fatigue [para 6 page 294] and feeling ‘tired all the time’ which was having an effect on her day-to-day activities. Although Mr Martin in his evidence in chief [para 55] had stated that he had not been sent the grievance letter, on being taken to the email to him, he accepted he had been copied in but had not recalled that.

[289]On balance the Tribunal find that by 1 August Mr Martin had sufficient knowledge of the claimant’s condition, its longevity and effect on normal to day activities in terms of the fatigue it caused, to have actual (and constructive) knowledge that she was disabled when dealing with her appeal.

[290]It was explained to the claimant by the judge that she must put directly to Mr Martin any allegations which related specifically to his conduct e.g. victimisation and/or harassment.

[291]The claimant put it to Mr Martin that he had treated her differently (without specifying how) because of the 1 August 2023 grievance and referred as evidence of this, to him having referred to the 1 August grievance in his investigation outcome report. However, what he refers to is the email of the 1 August setting out the questions he planned to ask the claimant at the 3 August hearing, not the grievance. The claimant was again reminded that she had not put the allegations of what he was alleged to have done by way of victimisation to him and that her case on this remained unclear therefore she needed to put the allegations clearly to him however she still did not do so.

[292]The claimant clarified during her cross examination of Mr Martin that LOI 9.3.4 did not relate to Mr Martin, given his evidence, which she appeared to accept, that he had not seen her Fit note. The claimant also confirmed that LOI 5.2.1 was not relevant to Mr Martin or the direct discrimination claim. The claimant did not assert that Mr Martin had intended to or otherwise subjected her to harassment which had the purpose or effect of causing any proscribed effects and did not identify what he had done to victimise her. 3 August 2023. Grievance Appeal for Grievance 1 & 2

[293]The claimant was advised that there may be some delay to the grievance appeal process due to annual leave and the need to interview relevant witnesses.

[294]The claimant suggests that the annual leave should have been cancelled to accommodate a grievance interview meeting however the Tribunal do not accept that insisting other employee’s cancel leave to accommodate the claimant’s grievance would be reasonable.

[295]Mr Martin had been appointed to oversee the grievance approximately a week later. The claimant was invited to the appeal hearing on 27 July, [page 271] affording her no less than 5 working days’ notice as requested.

[296]Mr Martin held a meeting with the claimant and carried out four interviews and produced a grievance appeal report and grievance outcome letter.

[297]The appeal hearing which was chaired by Mr Martin went ahead and took place on 3 August 2023 at 10am [page 419]. Mr Martin was supported by Mr Ing as note taker. The claimant did not ask to adjourn it until after her fit note, did not ask to adjourn pending a referral to OH and did not ask for any adjustments other than breaks if required.

[298]The claimant attended with an experienced Regional Officer from Unite, Mr Guye who had been an officer for 29 years at that stage. The claimant recorded the hearing and a Transcript has been provided [page 404-416].

[299]The respondent produced minutes of the meeting [page 419].

[300]Mr Martin checked at the outset that the claimant was comfortable to proceed with the hearing. The claimant confirmed that she was and made it clear that she wanted the process resolved as quickly as possible and referenced the preference for an ‘amicable resolution’: Mr Martin: … “ You’re okay and that, you know, you’re comfortable to carry on this morning …and you know, go through this. Claimant: “I am as I can be this morning, and for the period that this had been happening I am keen to get this discussed and resolved and as Garry said, reach an amicable resolution to this.” Tribunal stress

[301]Mr Martin explained that the 2 August document with her written answers which she had sent by email had been blocked by the respondent’s firewall because of some of the language within it however he had spoken to the IT department and managed to access it and printed out a copy.

[302]The claimant did not object to attending the hearing and explained why she had wanted to know the questions in advance, not to avoid having to take part in a hearing, but because [p406]: “…I’d asked for the processes to be done in written format to alleviate any unnecessary stress on me, because it will make me really, really unwell and the last thing I need at the moment is a light hospital visit. So, what I’ve requested , reasonably, was for answers to be provided in advance, for me to be able to digest it, understand what you’re asking of me, and to provide my response in advance of the meeting – to make these meetings go a lot smoother and not cause me more stress and harm…” Tribunal stress

[303]The claimant complained about only having the questions the day before and that because of that she worked from 8am to 10pm producing replies [page 406]. Mr Martin explained that it was not the intention that she reply in writing. The Tribunal consider that it is likely that she did not ask for more time because she was keen to complete the process as quickly as possible. The Tribunal also consider that Anyone working on a document for 12 hours [p408] would be fatigued. The claimant accepted that what she had included in her lengthy document included matters which fell outside the appeal process; “Yes, it is outside the appeal process, you just asked for a sequence of events leading up to my suspension, I provided it.”

[304]The claimant told Mr Martin in this meeting that her blood pressure had ‘spiked’ and she would need breaks. It does not appear from her own covert recording and the respondent’s minutes, that in the event she felt she needed any breaks whether to take blood pressure medication or otherwise.

[305]The claimant as is recorded was asked about her Long Covid symptoms and provides no specifics. She refers to having gone through “thousands of symptoms” since she was first diagnosed [page411]. In her document in response to the question, she was asked about her symptoms she attaches a link to an article with a summary of Long Covid symptoms. In the meeting she states that the majority of the symptoms in the article apply to her without identifying which do or which do not. The claimant then complains in the hearing that she has requested adjustments which have not been made and at first alleges none have been made, then alleges some have been made but does not identify what adjustments she needs which have not been accommodated: “No adjustments have been made. … Ah…I mean some adjustments… I don’t know, I’ve asked for adjustments basically, my GP has asked for adjustments…”

[306]The Tribunal find that the claimant appeared in this meeting unable or unwilling to provide a clear picture of her symptoms and what adjustments she felt she needed which had not been accommodated.

[307]The claimant mentioned sometimes having ‘brain fog’ [ page 412]: “… I’m not somebody who takes sick leave, I make sure… I have a really strong work ethic, if I’m not dying basically, unless I’m going on my death bed or its affecting my brain where I can literally not read or comprehend- so when I’ve had really bad instances of brain fog, those are the few rare instances I had to go off sick. And that one time I had that that really horrible covid infection where I had to be prescribed, like really serious on medication because of the amount of pain it caused me. I’ve barely had any time off sick, maybe a couple of weeks a year . Mostly I use my annual leave to deal with me being unwell.” Tribunal stress

[308]The claimant did not complain of experiencing ‘brain fog’ during this meeting (or at the suspension meeting). The Tribunal note that her sickness record does not support her assertion that she had taken a couple of week or so due to Covid related sick leave every year. While the claimant refers to the amount of time she spent preparing the responses she does not complain that she suffered brain fog as a result, she refers to a spike in her blood pressure but it is not clear whether she is saying that is because of working late or the stress of the process, she does not say she has sought medical attention or that she intends to. The only adjustment she refers to needing is to be provided with questions in advance [ page 406].

[309]The claimant then mentioned in this hearing having requested on a number of occasions a referral to occupational health (OH) but then goes on to refer to just one conversation after the grievance outcome.

[310]In terms of the suspension the claimant mentions that there was an alternative to dismissal, and that one of the respondent’s current year objectives is to reconcile all the data on their managed EPC’s , there were a couple of hundred thousand properties that needed reconciling and she mentions that she could have undertaken that task. Mr Martin acknowledged in the meeting that he was aware of the EPC task.

[311]In her written answers to the Mr Martin’s, the claimant had agreed that it would not have been possible however to continue to work with Mr Bridge and Ms Spencer; [page 400]: “Question: Do you accept that if the allegations made against you are true, then it will have had an impact on your direct reports that would have made it difficult for you to continue working closely together until the allegations were investigated? Claimant: regardless of whether the allegations made against me being true or false, it would have made it difficult for all parties involved to continue working closely together., not only the direct reported having made malicious false allegations due to their negligent and incorrect decision that I was AJ/Vlad/ Concern staff and intending to make false allegations until I was fired for being AJ/Vlad/Concern staff. …” Tribunal stress

[312]Despite confirming to Mr Martin that she was fine to continue with the grievance appeal hearing on the 3 August and expressing how keen she was to resolve it, (and the request to adjourn the disciplinary was granted), the claimant alleges now in her evidence in chief that: “The unwanted conduct I was subjected to - including being forced into live hearings while unwell, disregarding my fit note, and pressing ahead without adjustments – was related to my disability…” [para 212 w/s] Tribunal stress

[313]That allegation is not consistent with the facts which are that the claimant was keen to push on with the grievance appeal and asked for the disciplinary hearing to be adjourned not on health grounds but because of the availability of her union, and she was never ‘forced’ to provide alternative dates for it and in the event the disciplinary hearing never took place. Her description of what took place is the Tribunal find fallacious.

[314]The claimant’s allegations about being ‘forced’ into ‘live’ meetings is not credible and the Tribunal consider is disingenuous.

[315]The claimant also gave evidence in this tribunal hearing that from 4 August 2023 to 20 September 2023 she was not capable of carrying out any in person or virtual meetings, stating “I would have immensely struggled which I did. I was not confident in my ability to advocate for myself.” The respondent contends that this is fundamentally undermined by the fact that during the period covered by the claimant’s fit note and in the immediate days after she was actively applying for various roles and underwent no less than two virtual interviews. While the Tribunal accept those submissions as to the fact, the Tribunal also note how thoroughly and robustly she presents her case and challenges the respondent in detailed and lengthy correspondence and in meetings. The picture she presents of not being able to advocate for herself is not borne out by the evidence, not least the documents and records of meetings Interviews

[316]Mr Martin met with Ms Farish on 7 August 2023 and interviewed her [page 419]. She Gave evidence that she was aware that the claimant had caught Covid and she was allowed to work from home due to the effects of medication and there was no OH referral in 2022 because the claimant had said ‘no’ to one. She confirmed she was not part of the decision around suspension.

[317]Mr Martin met with Ms McCarthy [page 421] on 7 August 2023. She gave evidence that she spoke with Alex Spencer about dismissal, they decided to suspend to take the “heat out of the situation to conduct the investigation as quickly as possible and minimise disruption to the team”. She gave evidence that there was no other contract manager role for her to do. She was not the Tribunal find, asked about EPC project work.

[318]Mr Martin met with Mr Alder on 9 August 2023 [page 428] who said that he had not asked about alternatives to suspension because he was satisfied with the explanation why Ms Mcarthy and Mr Spencer decided on suspension

[319]Mr Martin met with Mr Alex Spencer on 15 August 2023 [page 441]. He stated that he discussed the decision to suspend with Ms McCarthy and that the direct reports of the claimant had described feeling extremely uncomfortable and they needed to consider the working environment for the claimant as well. He stated that the decision was made by Mr Clarke and Ms McCarthy but later corrected this to say that it was made by himself and agreed by Ms McCarthy. The claimant is not alleging that the previous complaints she had raised about Ms Farish, (who is Mr Alex Spencer’s direct report), and her working conditions, is a Protected Act. If Mr Alex Spencer harboured any ill feeling, that is not the alleged Protected Act.

[320]None of the witnesses were asked about the EPC project work. It is clear from the outcome letter that Mr Martin [page 477] accepted the reasons for the suspension were fair. 10 August 2023: New Employer Interview

[321]The claimant in cross examination confirmed that she had an interview conducted via Teams with a company who is now her new employer on 10 August 2023. The respondent points out that this was during a period of sick leave. 16 August 2023

[322]The claimant wrote to the respondent on 16 August 2023 claiming that the WhatsApp messages she had sent were personal and private and amounted to a data breach, [page 446 & 495].

[323]This information was passed to the respondent’s Data Protection Team to review.

[324]The claimant’s Fit note had now expired. Ms Farish did not contact the claimant to carry out a return-to-work meeting and the claimant complains that this is in breach of the Attendance Policy [page 657]. However, Ms McCarthy’s evidence was that whilst an employee is on suspension, it would not be normal practice to conduct a return to work until they had actually returned to work after any period of sickness. The Tribunal accept the sense in her evidence given that the purpose of a return to work meeting is to discuss what it required for a return to duties and that in this situation where an employee is on suspension pending a disciplinary hearing, (and perhaps more so for an offence which may result in termination), it would seem sensible and reasonable to conduct a back to work interview as and when/if they will be returning to work. The Attendance or Disciplinary Policy does not provide otherwise. The claimant does not identify anyone treated differently who was on suspension. 18 August 2023: Grievance Appeal Outcome Timing

[325]The Grievance Guidance document provides that the appeal hearing manager will ‘usually’ send the outcome of a grievance appeal within 10 working days from the appeal hearing [page 629].

[326]The claimant was notified on the 18 August 2023 that her appeal against the grievance outcome was not upheld by Mr Martin [page 477-8] [page 468-email]. 327. 10 working days from 3 August 2023 would have been 17 August 2023. The claimant had exchanged emails with Mr Martin [ page 454- 452], he had not simply failed to keep her updated. On 16 August he explained that he has spoken to Mr Ing and was awaiting a response to one item and apologised. He indicated he was shortly to go on leave and would need to provide the outcome on his return. Initially he had told the claimant in an email that he was returning on 30 September [page 452]. On balance despite the claimant’s assertion that this error was deliberate so that she would not get the outcome until after the disciplinary hearing, the Tribunal find that this allegation is nothing more than mere conjecture on the claimant’s part and conclude that he gave the wrong date by mistake. The claimant replied to Mr Martin at the time, not alleging any ulterior motive but expressing appreciation for his efforts [page 454]: “I really appreciate your consideration and the updated response. I appreciate that these things time take for a thorough and fair full investigation, but we do have a policy timescales to reasonably abide by, thus I really appreciate your efforts in this matter.” Tribunal stress

[328]The Tribunal note however, that the Guidance says ‘usually’ and that she had submitted a voluminous document which although she accepted included information outside the remit of the appeal, she was insistent he read it in full and all the documents she had provided to date: “Can you please ensure that you very thoroughly read everything that I’ve provided the employer to date – The HR requests, the questions to the people making allegations, and all of the grievances – before you interview anyone , to get a good overview as to what had has happened…” [page 415]

[329]The claimant the Tribunal considers, was unreasonable in her attitude, insistent on the timescales of 10 days being adhered to without taking into account that Mr Martin also had a responsible job to perform while undertaking a grievance appeal in circumstances where the claimant was insisting he read all the documents she had sent, including a 23 page discursive and prolix document. Mr Martin however produced the outcome within a day or two of the recommended timescales.

[330]In cross examination Mr Martin was taken to his grievance appeal summary document which appears to have been signed off on 15 August 2023 [page 440]. Mr Martin gave evidence that he had completed his report but was due to go on leave, he did not want the claimant to wait until his return so he drafted the outcome letter before he went and left it with Mr Ing to send it out while he was away on 18 August.

[331]Mr Martin had concluded that the decision to suspend was made by Alex Spencer and Clare Mc Carthy who considered that there were no appropriate roles to move the claimant into and suspension was the only way to ensure no further stressful contact occurred.

[332]In terms of adjustments, he referred to interviewing her manager Ms Farish [page 219] and Ms McCarthy [pages 421- 422] who had confirmed that reasonable adjustments had been made by allowing the claimant to work from home unless it was absolutely necessary.

[333]Mr Martin was not involved in the disciplinary process. His comment around the adjustments was whether these had been considered and implemented in connection with the appeal against the suspension. Ms Farish had informed him that an OH report was to be obtained in 2022 but the claimant did not agree to it and that adjustments had been made for her, nonetheless. The claimant had not alleged that she had requested other adjustments which Ms Farish had failed to implement. Mr Martin’s conduct

[334]The claimant complains about how Mr Martin treated her in this meeting and alleges he was hostile. The transcript does not support those allegations. The Tribunal note that the note suggests he was sympathetic and making enquiries about her welfare. She was represented by an extremely experienced trade union representative who at no point raised concerns about Mr Martin’s behaviour toward her and nor has he given any statement for the purpose of these proceedings to support that allegation.

[335]The Tribunal do not find that this allegation is made out and find it to be a further allegation which lacks credibility. 18 August 2023

[336]The claimant in cross examination accepted that she had a second interview with her now employer on 18 August 2023. 19 August 2023: Acas

[337]The claimant contacted Acas on the 19 August and started the early conciliation process [page 13]. Data Protection Team

[338]The claimant complained to the respondent about the handling of her personal WhatsApp messages. Darren Sullivan, Data Protection Lead from the respondent’s Data protection team contacted the claimant on 21 August in an email sent at 17:04 [page 498] in which he asserted that because it was a member of the WhatsApp Group who handed over the messages, there was no unauthorised handling of personal data and that they would erase it in accordance with their policy which was following termination of her employment and after 6 year .

[339]The claimant filed a complaint with the ICO who contacted the respondent on 26 October 2023 and again on 13 November 2023 [page 558] wanting information about whether the WhatsApp messages were being stored and why. A reply was sent by the respondent to the ICO on 14 November 2023 [page 561] in which they stated that; “…whilst this group may be accessed by individual’s personal devices the name of the group and conversations within this would suggest that this was discussing business matters. Therefore, all participants are governed by their employment contract to use appropriately in line with MTVH’s code of conduct as such we would be processing this data under the lawful basis of Contract… Further, to this on 7 June 2023, the Data Subject also shared Whatsapp messages with MTVH demonstrating she was happy for MTVH to process this data and consenting to its use as part of a wider investigation…” Tribunal stress

[340]The ICO replied on 6 December 2023 [page 562] stating that they were satisfied that the respondent had complied with its data protection obligations.

[341]The claimant chose to resign before the ICO had given its decision or the respondent had provided the required information to the ICO.

[342]The claimant referred to the workplace chats of Ms Spencer and Mr Bridge being treated as private by the respondent’s IT team when looking into the anonymous emails from Aj Vlad attaching the screenshots of their Teams chats [page 104 – 116] however, Mr Proctor (according to the unchallenged evidence of Mr Martin) works in IT, and he refers to not attaching them for privacy reasons but does say to ask if they are needed. Not disclosing them because it is not necessary. The documents have been processed by the respondent, the issues here appear to be whether it is ‘necessary’ to attach them with his report, and thus the Tribunal find that it is not a comparable situation. 21 August 2023: 5th Grievance

[343]The claimant submitted a further grievance in a letter dated 18 August but sent under cover of an email dated 21 August 2023 which contained complaints about the grievance and disciplinary process [page 480]. It was a lengthy 12-page letter [page 481- 492]. It alleges violation of data protection laws and goes on to make numerous allegations about almost every step in the process including allegations that Ms Spencer and Mr Bridge have defamed and slandered her. August 2023: Claimant accepts offer of new employment

[344]In answer to questions from the Tribunal Panel, the claimant gave evidence that she updated her status on LinkedIn after the suspension to say that she was available for work, she could not recall when but it was sometime in May 2023. The claimant had the second interview for the job she secured on 18 August and could not recall if she had been told then that she was successful but thought it was only couple of days later that she was told adding “ish” and that she had to disclose the issues about a reference “after the 18th”, which the Tribunal consider indicates that it is likely that she had been told on 18th October they were offering the role to her, subject to references. A contract of employment was sent to her by her new employer and the claimant in answer to the Tribunal’s questions thought this may have been sent to her around 21 August. A copy of it was included by the claimant in the remedy bundle but the claimant had not produced a copy of the covering email sent with it confirming the date it was sent. The claimant confirmed in cross examination that she accepted an offer of employment with her new employer on 21 August 2023. In terms of her state of mind at this time, she gave evidence that: Judge: what was your state of mind before you got the letter from the data protection team – were you intending to still work for the respondent? Claimant; No. I knew the respondent would dismiss me but I would continue to defend myself

[345]The claimant went on to say that regardless of this she intended to go through the disciplinary process. The Tribunal do not consider that her evidence was plausible given her attempts to postpone the disciplinary hearing and the fact that she did not provide dates of availability for it to proceed after her Fit note expired. That lack of action does not indicate someone keen to go through the process and defend herself.

[346]The Tribunal consider that the claimant had, before receiving the letter from the data protection team on 21 August, already made up her mind to leave and take up the offer of new employment which was likely communicated to her before her resignation and more likely than note given her evidence, before the letter from the data protection team but that she waited for the formal offer and contract of employment before resigning, perhaps because there has been some discussion after 18 October about the problem of obtaining a reference. 23 August 2023: Resignation

[347]The claimant resigned by email serving notice at 14:01 and confirmed that her last day would be 20 September 2023, [page 505-510]. It is a lengthy over 2-page resignation email. The claimant listed as a number of alleged breaches, including general headers e.g. less favourable treatment under the Equality Act 2010 and more specific breaches which she asserted undermined the implied duty of mutual trust and confidence, describing the final straw as: “The last act being the final straw, in the latest of the Employer’s workplace mobbing directs at my person, the employer has stated on 21st August 2023 that they have been “ appeased” in their attempt to justify their actions by referring to the employment contract between us , claiming that it allows them to justify their actions by referencing the employment contract between us, claiming that is allows them to process my personal information…” Tribunal stress

[348]In her evidence in chief [ para 237] the claimant states under the header: “The final straw & resignation”; “21/08/2023 – 17:03pm I received a response from Darren Sullivan to my Data Protection Complaint submitted on 14/08/2023. Darren stated that after discussing my allegations with HR, they have been “appeased” about the content of the Whatsapp messages…” Tribunal stress 23 August 2023

[349]The respondent’s Data Protection Team responded to the claimant about her complaint of a data breach at 17:04 on 21 August 2023 and confirmed that there had been no breach of her personal data, [page 498-500]. Without Prejudice Discussions

[350]Without Prejudice discussions were held between the parties albeit the claimant states that the discussions were not referred to as ‘without prejudice‘ at the time [page 504/515]. There are emails about meetings arranged via Teams for 23 August 2023 between the claimant and Khilna Chandarana.

[351]The parties have not waived privilege in terms of the content of those discussions.

[352]It is not disputed that following the claimant’s resignation the parties were engaging in “discussions” [pages 504] and that whilst this was occurring the grievance and disciplinary processes were paused [pages1068]. While the claimant may not have expressly agreed to this, she did not complain about that pause until it seems the discussions broke down. 30 August 2023

[353]On 30 August Mr Ing sent an email to Ms Cornthwaite who had returned from leave and was asking about what was happening with the disciplinary process and he informed her that all the processes were on hold [page 1068]: “Khilna is now looking at the risks etc of accepting their request and for now all processes are on hold, pending her conversations…” Tribunal stress

[354]The Tribunal accept on balance, given the reference in the contemporaneous document to “their request” and the indication previously that the claimant was hoping for a resolution, that the parties were actively engaging in discussions. 6 September 2023

[355]Ms Chandarana had in an email on 6 September informed the claimant that her concerns would be investigated and offered her the opportunity to reconsider her resignation however, she did not retract it [page 516].

[356]It is not clear when the discussions without prejudice discussions ended however the respondent confirmed on the 12 September 2023 that her resignation was accepted. Grievance Process for the 3rd, 4th and 5th Grievance

[357]Ms Thorpe was contacted by Mr Ing on 18 September 2023 and asked to be the investigation manager for the claimant’s outstanding grievances and they met to discuss them on 21 September.

[358]It is not in dispute that Ms Thorpe had no prior knowledge or contact with the claimant.

[359]Ms Chandarana informed the claimant on 21 September 2024 [page 544] that Ms Thorpe was now looking into the grievances.

[360]Ms Thorpe dealt with the grievance on the papers. It is apparent from the evidence in the bundle that Ms Thorpe had a considerable amount of information to consider and her undisputed evidence [w/s para 10] is that on receiving the information she cleared her diary for that week to focus on the documents and had to cross reference the documents because of a degree of repetition across the grievances. Just how much information she had to consider is evidenced by her response on receipt of it to Mr Ing on 26 September [page 540]: “ Wow, this took some reading and concentration !”

[361]Ms Thorpe’s evidence is that she considered that the claimant had not raised any new grievance points that had not already been addressed over the previous months. That there were some learning points for the respondent. Ms Thorpe felt the 1 August grievance was a repeat of the previous 2022 grievance but flagged that the issue of workload, lack of 121s, one way end of year review and lack of sickness process would be looked at and learnings taken from it. She comments that perhaps the claimant should have been offered the chance to offer a written statement for the disciplinary hearing. In terms of the second grievance, she felt that other than asking whether she was kept up to date and the decision to restart the disciplinary process, most of the rest of the 2 August grievance would have been addressed at the disciplinary hearing.

[362]Ms Thorpe, given the volume of written information including notes of meeting with the claimant and colleagues, did not feel any information was missing and did not feel she needed to speak to the claimant and with HR advice gave a written outcome. Her evidence is that she considered that this was proportionate based on the information she had and had nothing to do with the claimant’s Long Covid or because she had raised grievance.

[363]Ms Thorpe had considered the information and set out her summary view by 26 September 2023.

[364]There appears to have been some confusion because she was resent the 1st of August grievance on 24 October and Ms Thorpe reviewed that. Mr Ing also sent Ms Thorpe on 26 September a copy of the claimant’s resignation letter to consider [page 533].

[365]Mr Ing wrote to the claimant on 24 October to confirm that the claimant would be updated on the grievances shortly [page 548].

[366]HR put together a draft letter to reflect Ms Thorpe’s findings and sent this to Ms Thorpe on 26 October 2023.

[367]It does appear to have taken HR a significant amount of time to prepare the draft outcome letter, from 16 September to 26 October. Ms Thorpe in cross examination confirmed that she had failed to chase to send the outcome letter and agreed that it was not dealt with in a timely manner and she could not comment on why Mr Ing did not send it out sooner.

[368]Mr Ing was named in the grievance and Ms Thorpe confirmed that it was Mr Ing who instructed her to deal with the grievance on the papers however, Ms Thorpe’s evidence was that given the claimant had exited the business so to her mind it made sense to conduct it on the papers.

[369]However, Ms Thorpe gave evidence in cross examination that she had been instructed by Mr Ing only to see if there was anything new in the 18 August grievance as compared to the 1 and 2 August grievance; “just told to see if anything new in 18th August grievance compared to 1st and 2nd August.”

[370]The 18 August 2023 grievance [page 490] includes allegations that Richard Ing and Ms Henderson had failed to respond in a timely fashion to requests she had made e.g. for provision of policies and allegations of failure to make adjustments amongst others. The claimant referred in her cross examination of Ms Thorpe to the fact the claimant had raised new items in the 18 August grievance against Mr Ing.

[371]Ms Thorpe on being taken to various complaints the claimant raised about Mr Alex Spencer, including events in April 2023 and removal of a bonus [page 492], Ms Thorpe accepted that those could not have been covered by the 2022 grievance the claimant had raised before and gave evidence that: “I cannot confirm if it had been raised before but at the time I was confident it had been raised.”

[372]Ms Thorpe also had no explanation for why she had not raised with Mr Ing that the 18 August grievance had raised new allegations against him personally. The claimant did not put it to Ms Thorpe in cross examination that she had victimised her or subjected her to any form of discrimination based on her disability or that Mr Ing had exerted any influence over her.

[373]The grievances were not upheld [page 553] in her outcome letter of the 26 October 2023 which set out her findings and recommendations. She confirmed that she has reviewed the previous grievances submitted on 14 June, 15 June, the grievance outcome dated 10 July, the grievance appeal and the grievance outcome. By the date of this outcome letter, the claimant had resigned and taken up new employment.

[374]The claimant was informed that she had the right to appeal. She did not appeal the decision. TOIL

[375]The claimant wrote to Ms Chandarana on 13 September 2023 [page 528] asking about payment of TOIL for the period from 25 May 2025 [page 529]. She appears to be claiming for work done on her disciplinary and grievance, in excess of her normal contracted hours totalling 213.59 hours. She does not set out what exactly she had done given during this period she was on suspension or sick leave. On the 21 September 2023 [page 527] she is informed that no payment is due because she was on sick leave or suspension.

[376]The claimant does not allege anyone had authorised payment or that she had discussed with anyone being paid for any work she did producing evidence or compelling grievances and nor is it clear how she has spent such a vast amount of time.

[377]The claimant had an experienced trade union representative, neither he nor she identifies any policy which provides for payment in these circumstances or any occasions where this has been paid to anyone else who has spent time while on suspension or sick leave carrying out work including beyond their contracted hours.

[378]The claimant in cross examination the judge asked the claimant to clarify her answer to questions put by counsel in respect of the victimisation claim: Judge: “do you say if you had not put in the grievance, you would have been paid for the work you have done on preparing for the disciplinary hearing ? Claimant: “I don’t know” Termination Date

[379]The claimant’s employment terminated on 20 September 2023.

[380]On the 21 September 2023 the respondent responded to the claimant’s request for overtime to be paid for the time she spent preparing working on her grievances etc and advised that no payments were due because during her suspension her access to the systems was restricted and the claimant was not required to carry out any work [page 527].

[381]The claimant commenced new employment on 23 September 2023 [page 104-110].

[382]By the claimant’s own admission, she was able to commence a full time 40-hour role, requiring weekly travel to London from 25 September 2023, only 5 days after the claimant’s employment terminated with the respondent. Disability: Symptoms and Adjustments : Findings of Fact

[383]The Tribunal will now address the facts relating in particular to the issue of disability and limit it to the documents the claimant identified as relevant in the ‘remedy bundle’ or those she was taken to in cross examination.

[384]In October 2019 the claimant asked to work more regularly from home, as she herself confirmed in a later email on 22 July 2021 [page 95] she asked for this adjustment not because of any health condition but (the claimant speaking in the third person): “…she finds working in the office can be disruptive and she has a dedicated office at home and feels she is more productive at home.”

[385]The claimant in cross examination confirmed that she was not required to be in the office to carry out the role, there were distractions in the office and it was agreed, before the contracted the Covid virus, that her attendance in the office would depend on business need. This arrangement continued throughout her employment. April 2020

[386]A screenshot from the claimant’s medical records [page. R. 90] show two relevant entries: “24 March 2020: Suspected 2019 N Cov (Wuhan) infection 1 April 2020: Post – COVID 19 syndrome. (Tribunal stress)”

[387]This medical information, the claimant confirmed under cross examination, was not however disclosed to the respondent until these tribunal proceedings. It does however confirm that following suspected Covid infection she was diagnosed in April 2020 as having post Covid symptoms but it does not identify what the symptoms are or how severe they are (or a prognosis).

[388]The claimant accepted in cross examination, when taken to the respondent’s sickness records, that she was absent from work for a total of only 5 days in 2020 due to Covid related sickness over a period of under 5 months [page 572] and that of itself does not indicate a long term or significant illness and there are no GP entries or any medical evidence relating to this period. 24 March 2020: 1 day 4 – 7 August 2020: 4 days July 2021

[389]On 22 July 2021 [page 95] the claimant sent an email to Ms Farish, her new manager, setting out extracts from one-to-one records with her previous manager regarding her working from home arrangement. These record a conversation in April 2020 where Covid is referenced and the fact that the claimant, due to having the virus, is still struggling with tiredness and requested a day’s annual leave to rest. There is no information around the extent of or impact of the tiredness.

[390]No other symptoms are reported, only tiredness.

[391]The claimant further refers in this email to what happened on 22 July 2021 when she had attended the office (at Waterfront House). She describes how she went into the office for an induction and had expressed concern about the risk of catching Covid from colleagues given the size of the induction groups, lack of social distancing and masks not being work correctly by some colleagues. The claimant also described the symptoms of her post Covid condition: “I still cannot make my way upstairs [sic] as good as I should be which I didn’t know until now, I felt dizzy for the most part and then I was exhausted when I got home which really isn’t where I thought I would be with my recovery (but then again I spent most of my time recovering at home and not pushing myself too much as I don’t really know how much something like that would take out of me). Happy to have a discussion about my long covid with you if you wish to have such a discussion…” Tribunal stress

[392]There is no mention of any other difficulties other than climbing stairs and the apparent fatigue this caused. No other symptoms e.g. physical pain, brain fog, etc are mentioned.

[393]In cross examination, when taken to this account of 22 July 2021, the claimant did not allege that she had failed to mention any other symptoms she was experiencing at the time, she confirmed that the problem she had encountered had been climbing the stairs.

[394]In 2022 the claimant was absent due to post viral syndrome [page 684] from 7 February 2022 to 30 April 2022. The Fit note stated: “Would benefit from reduced working hours e.g. 4 days a week being able to work more at home, starting from 15. 2. 22.”

[395]The Fit note does not provide any more details about the effects of the condition. It does not identify that the claimant suffers with brain fog, with physical pain or susceptibility to stress or anxiety. The reduced hours would indicate fatigue.

[396]On 23 February 2022 [RB page 212] the claimant emailed the respondent’s team that were dealing with Covid testing about what protection was being put in place for employees and stated: “Approx. [sic] 1.3 million people in the UK have long covid, with symptoms lasting more than weeks and months post original infection, some affected individuals are now 2 years into the post viral syndrome arising out of a covid infection, I am one of those individuals.”

[397]The claimant presented a formal grievance on 24 February 2022 about her line manager, Ms Farish [page 670]. The complaints included failure to carry out one to ones and support and the claimant having an excessive workload. Within this grievance letter the claimant referred to workload demands from April 2021 had been “overwhelming” and referred to the impact on her health: “The ongoing, constant pressures and stress have caused significant detriment to my physical and mental wellbeing, causing a number of Long covid relapses, one Emergency Room Hospital visit, and lately a mental breakdown on 31/01/2021 which has a subsequent long covid relapse. Replaces [sic] include the likes of tachycardia, brain fog, significant physical all over body pain, shortness of breath etc, please refer to the wider internet for further guidance on the symptoms of long covid causes…” Tribunal stress

[398]It appears that the claimant is not describing here her particular symptoms but explaining the sort of symptoms which people who have Long Covid may experience.

[399]The claimant complains about the impact of an excessive workload: “…the excessive stress and workload has caused my long covid symptoms to worsen and months of slow progress are now wasted.”

[400]The claimant does not mention taking any medication and states that she had returned to work on 14 February 2022 prematurely and [page 673]: “I had returned with a severe case of tonsillitis and a body temperature of +38 degrees. I was rather unwell, running a fever, in considerable amount of physical pain etc. I had believed this was another bad long covid relapse but a discussion with GP notes this was a bad case of tonsillitis and antibiotics prescribed.” Tribunal stress

[401]Other than the Fit notes, and despite the claimant referring to having 5 mental breakdowns in that financial year [page 672], there is an absence of any medical evidence relating to this period detailing the effects of her Long Covid and no medical evidence to support what she says about ‘mental breakdowns’ related to Long Covid. There is reference in the medical evidence in the remedy bundle to a depressive disorder but this is back in 2011 and therefore cannot relate to Long Covid [page 91].

[402]The claimant in her witness statement alleges (para 23) that Long Covid symptoms include cognitive dysfunction and brain fog, memory impairment, insomnia, headaches, fatigue and physical weakness. However, other than fatigue (given the doctor’s recommendation to reduce her hours) the medical evidence does not suggest any other symptoms and while the claimant refers to brain fog etc this appears to be in the context of what sort of symptoms can result generally from Long Covid. She does not set out in her letter that she personally has all these symptoms or provides any detail of the extent or impact of them. The complaint is not that she is struggling to do her normal work but that she has been allocated an excessive amount of work, excessive not only for her but for the nondisabled colleagues in her team (she does not allege they had any disabilities): “I have verbally and, in writing my concerns over my own and my Teams workload and resourcing available…” [page 671]. Tribunal stress

[403]The claimant also sent to the Ms Farish an email on 12 July 2022 with information about the symptoms Long Covid can cause, she did not however again identify the specific symptoms she was experiencing, which if it was brain fog, headaches etc the Tribunal find it difficult to understand why she did not set that out.

[404]The outcome of a grievance the claimant raised in February 2022 which related to excessive workload [page 213] included in its May 2022 recommendations that: “Due to some concerns that I have heard during the meetings with Anna and in further respect to her ongoing health I would like to see Anna agree to participate in an occupational health review provided by [the respondent]…”

[405]Ms McCarthy gave evidence in cross examination that she was aware from discussions with Alex Spencer in the summer of 2022 that that the claimant was to be allowed to work from home due to ‘fatigue’ from working in the office environment.

[406]It is not in dispute that the OH referral did not take place.

[407]The claimant in cross examination gave evidence that she discussed the OH referral with her line manager at some time between May and November 2022 and alleges that she had agreed a letter of referral and while counsel for the respondent questioned the claimant about failing to chase for the report to be carried out, the Tribunal consider that the responsibility was on the respondent to action that. However, the claimant is clearly someone who will robustly assert herself and if she was suffering to the extent she describes (e.g. 5 mental breakdowns in one year), it is puzzling why she did not follow up the discussion about involving OH. The Tribunal consider that the only reasonable conclusion to reach on the evidence is that the actual symptoms and effects are not as the claimant describes them in her impact statement and that she did not consider that she needed any further adjustments (and she would not raise a need for any adjustments until the proceedings arising from her alleged misconduct the following year in in May 2023).

[408]The claimant was absent from work for 3 days in 2022 from 6 to 10 July 2022 due to testing positive for Covid and being unwell with symptoms. The return to work was carried out by Ms Farish on 11 July 2022. The back to work form is brief [page 746]. It states that the claimant was not referred to OH, makes no mention of the previous recommendation and in terms of her fitness to work states that she is fit and that she is taking no medication which would affect her performance. It makes no reference to any specific symptoms. The claimant does not allege that she gave information about any symptoms and gave evidence that she was at this time: “desperate to return to work.”

[409]The Tribunal find that the claimant did not report any symptoms to Ms Farish at this return-to-work meeting, she said she was fit for work and wanted to return to work. Her evidence is that she thought the OH referral was still going ahead and felt no need to mention it. The Tribunal do not consider it plausible that if the claimant was experiencing the symptoms she describes in such detail her impact statement, (including the physical pain and limitations and cognitive symptoms and impact, including brain fog, ‘crashes’ and breakdowns), regardless of any self-management, she would not be keen to make sure the employer was aware of the extent of the impact and enquire when the OH report was going to be arranged or chase it up thereafter.

[410]There is then a one-to-one meeting on 12 July 2022 [page 748 – 749], where there is mention of the claimants’ workload, which is the subject of an ongoing review, and includes the following recorded notes:• “AC advised JS has found it difficult to return to the office during recovery from covid with main symptoms being tiredness. Agreed to have a phased return approach with back to full expectation by 1st September 2022. AC to put plan together and send to FF by 15/07/22

• AC advised as had covid in the last week, hard to know how this will impair her already existing long covid. FF to book time next week to look at phased return to work plan for AC”. Tribunal stress

[411]The report also includes the following comment: “AC to keep FF updated of symptoms.”

[412]There is no report of any other symptoms experienced by the claimant being reported to Ms Farish at or after this meeting. The contemporaneous evidence is not supportive or consistent with how the claimant details the impact and symptoms in her impact statement and nor is her description consistent with the limited medical evidence disclosed.

[413]The Tribunal note that on 24 October 2023 [RB page 23], which is after the claimant’s employment had ended and she had completed the Acas early conciliation period, there is a document confirming an online consultation with her GP practice, where the claimant now self-reports various symptoms: “Long covid worsened recently: fatigue, exhaustion [sic] with ease, aches and pains, ear pressure and drum sensitivity, brain fog, dizziness and feeling faint, intolerance to mild exertion [sic], spikes in blood pressure…. How long has this been going on for? Worsened in the recent few moths [sic] ans [sic] jasnt [ sic] improved still.”

[414]None of the above symptoms are set out in the medical evidence in 2022 and the GP does not identify those in the Fit notes she was issued in the section on the form where the functional effects can be recorded.

[415]There is no medical report or expert evidence which confirms the claimant’s description in this 24 October 2023 document of her symptoms or their connection to Long Covid.

[416]The Tribunal were taken to a document [RB page 90] which refers to April 2020 Post Covid Syndrome and the claimant has produced a photograph of her medication and an email she sent to her GP on 28 June 2023 describing symptoms [RB page 80]. She refers to pressure in her head and ears. She is prescribed Propranolol but there are no records disclosed from her GP to confirm what this was prescribed for, it is a beta blocker and the Tribunal understand that beta blockers can be issued to manage high blood pressure and to also prevent migraines. There is no link made between these symptoms and Long Covid by her treating doctors.

[417]It is not clear how the claimant would be aware that her blood pressure was ‘spiking’ and has not disclosed the results of any blood test or any opinion as to the cause of any rise in her blood pressure (or indeed confirmation that the claimant was diagnosed with high blood pressure and/or that any symptoms were linked to it rather than other possible causes e.g. lifestyles choices).

[418]The claimant in an email to Alex Spencer on 5 January 2023 [RB page 222] which the claimant referred the Tribunal to, complained of an excessive workload causing her stress, anxiety and depression and complained that it had made her Long Covid worse, and referred to insomnia, but she does not refer to the many other symptoms and effects she now details in her impact statement. She does not allege that she could not carry out her work due to ‘brain fog’ but complains of the workload she had carried. She describes how she had managed to complete the work by sacrificing lunch breaks and doing unpaid overtime. While referring to being so unwell “standing and walking for the majority of the period over Christmas was unsafe”, alongside what she describes as a “multitude of other unpleasant body system responses” and to what she describes as a “cardiac event on 31 December 2022”, none of that is reflected in her medical records which we were taken to. We were not taken to any medical evidence of a ‘cardiac event’ and the claimant reporting to her GP that she had been so unwell she could not stand. Despite all these alleged symptoms/effects which she raised as part of a complaint about her manager and her workload, when the respondent discussed obtaining an OH assessment, the Tribunal find that the claimant did not want to pursue that assessment.

[419]The claimant has produced limited medical evidence and referred to only certain documents as relevant within the remedy bundle. There is no actual report from her GP or other medical practioner or independent expert providing an opinion on which of the symptoms she details in her impact statement are likely to relate to Long Covid and which are as a result of other possible causes and what her actual symptoms (or likely) symptoms of Long Covid at the relevant time were (or other possible causes) and their impact.

[420]On balance the Tribunal find that in 2022 the claimant experienced fatigue when climbing stairs and more likely than not similar physical activities. Due to excessive workload in the first part of 2022 the claimant suffered the effects of stress which is more likely than not to have in turn caused more fatigue, taking judicial notice of the impact stress can have on the body generally.

[421]The claimant has not produced a report from her GP confirming the history of the symptoms of the condition and on balance the Tribunal find, that the claimant continued throughout 2020 to 2023 to suffer some additional tiredness as a result of the after effects of having Covid and therefore the symptom of fatigue was by 2022 long term but not that that she has proven on a balance of probabilities that she was experiencing the other symptoms she reported in 2023. She was not saying to the respondent in her 2022 grievance that because of ‘brain fog’ she could not cope with a ‘normal’ workload. Her complaint was about the stress she was suffering due to an excessive workload, and she was concerned about the impact not only on her health but the impact on her team of the amount of work they were having to carry out (she does not allege members of her team had any disability).

[422]The Tribunal have regard to the guidance set out in the government guidance on matters to be taken into account on questions relating to disability and the Appendix which sets out a non-exhaustive list of factors which, if experienced by a person, it would be reasonable to regard as having a substantial adverse effect on normal day to day activities and which includes the following guidance “difficulty in going up or down steps, stairs or gradients; for example, because movements are painful, fatiguing or restricted in some way.”

[423]On balance, the Tribunal find that the effect was more than trivial and long term by July 2022 at the latest and likely continued until her employment ended.

[424]The claimant was not absent again due to Covid until she was absent from work for 3.5 days testing positive for Covid and feeling unwell. The back to work interview records no further action and reports no ongoing symptoms.

[425]Prior to May 2023, the claimant had had no sick leave due to any alleged Long Covid related symptoms, since April 2022, over 12 months before.

[426]The claimant was absent from 17 to 23 May 2023 due to; “stress, depression, anxiety, neurasthenia, mental health and fatigue” [page 570]

[427]The claimant would then be signed off as sick from 2 August 2023 until her employment ended, from work related anxiety and stress and long covid [page 418]. The only information given in the sick note which is for 2 to 16 August 2023 is; “Work related anxiety and stress. Long Covid.” Symptoms - disadvantage

[428]The claimant’s impact statement sets out initially some general information about the nature of long covid. The claimant describes her symptoms (para 7) as: “cognitive impairment, fatigue, and physical weakness among others”…

[429]The claimant lists 39 symptoms, physical and mental including; brain abnormality, Neurocognitive impairment, attention deficit and that it presents as a cluster of symptoms and subject to flare ups. It is a lengthy and detailed 32-page impact statement.

[430]In her impact statement (paras 343- 344) the claimant gives evidence about the situation from 17 May 2023. She states that she had to take time off due to workload and an “acute serious stress triggered a crash”, that her neurocognitive symptoms were severe and she could barely function and her friend had to look after her. She does not refer to seeking any medical assistance despite the alleged severity of her symptoms.

[431]The claimant did not refer the Tribunal to any medical evidence relating to this absence.

[432]The claimant states she ‘prematurely’ returned to work on 24 May 2023 and was suspended the following day. The claimant had only been absent from Wednesday 17th May to Thursday 23 May (5 working days). The Tribunal do not find it plausible that the claimant would have experienced the effects she describes and yet took only 5 days off work and never sought any medical support or advice. She claims that the suspension on 25 May 2023 enabled her to continue her ‘therapeutic rest’ and further exacerbated her Long Covid symptoms however, she does not say in her impact statement which symptoms or to what extent (para 343).

[433]The claimant states in her impact statement (para 343), (which includes considerable detail), that she had to drive into the office on 7 June 2023 and that she had rested as much as she could but it was not sufficient: “Thankfully the next meeting scheduled for 15th June was to be done in person via video link, which was a better alternative as I could not drive at the time due to severe symptom exacerbation. By 29/06/2023 I was not able to alleviate my exacerbated symptom with therapeutic rest and medication stack protocol, my inflammation was high and I had developed an excruciating back pain from being unfavourable treatment of routine and experiencing serve symptoms exacerbation due to the extreme levels of stress I was subjected to. My GP prescribed additional anti-inflammatory pills to counter digestive side effects of the antiinflammatory pills and codeine to help manage the additional excruciating back pain.. was unable to do my usual day to day activities nor my brain functioning well due to exacerbation of cognitive impairment symptoms…”

[434]The claimant has produced an email she sent to her GP on 29 June 2023 [RB page 80] in which she describes back pain and asks for painkillers, she describes inflammation, dizziness, loss of appetite, flared depression, nausea and fatigue, pressure in her head and ears. There is no record of any consultation but prescriptions for Codeine, Naproxen [RB page 79]. There is no medical evidence linking these symptoms to Long Covid and while she refers to ‘flared depression’ does not seek any treatment or consultation for that but medication for the inflammation and does not complain of cognitive impairment. These symptoms are not confirmed by a medical report or medical evidence.

[435]The claimant did not accept in cross examination that the first time she raised that a symptom of her disability was impaired cognitive functioning was in her email of the 2 August 2023 to Mr Martin and Mr Ing. The claimant accepted that if this had been the first time she had raised it the respondent could not reasonably have known about this being a symptom before this: Claimant: “If it was the first time I accept – if it was the first time maybe but my long Covid should have been explored since April 2022 and I had communicated long Covid before.” Counsel: “ …you did not provide any medical documents to the respondent in May 2023 to suggest your cognitive ability was impaired?” Claimant: “There was no medical evidence to provide.” Tribunal stress

[436]The claimant could not recall whether her very experienced trade union representative had mentioned cognitive difficulties in the 3 August 2023 meeting. The notes do not record him doing so and the Tribunal find on balance that he did not raise this as a concern and this begs the question why not?

[437]In terms of the impact on her cognitive function, the claimant confirmed that prior to 25 May 2023 and her suspension, she had no issues with her ability to carry out her work: Counsel: “Before the suspension on 25 May 2023 you were carrying out day to day work with no issue? Claimant: “yes, when working from home, when not in a rush.” Counsel: “Before the suspension you were capable of Teams or in person meetings?” Claimant: “I managed Teams meetings, I struggled with in person meetings when intense meetings.”

[438]The claimant did not give any examples in her evidence of any in person meetings where she had actually struggled.

[439]The claimant referred to documents which evidence that she had raised issues with the respondent about her condition and referred to an email from the claimant to Ms Farish which is undated but appears to relate to a complaint about Mr Stewart and therefore would appear to be prior to 2023, which is when she complains about how he had behaved toward her at a meeting and that his tone made her stressed and anxious and negatively affected her Long Covid “due to excessive and unnecessary stress” but she does not say how her condition was affected beyond feeling stressed and anxious [page 878].

[440]The claimant does not allege that she was receiving any on-going support for Long Covid or attending any support groups or clinics and there is no medical evidence to show that her doctor had concerns about ongoing symptoms before August 2023. The claimant has not produced a medical report from her doctor or any expert to support her claims about the symptoms she describes being diagnosed and linked to Long Covid at any time during the relevant period. 441. The Law Burden of Proof

The Law

[442]Section 136 Equality Act 2010 sets out the burden of proof which applies in cases of discrimination: “(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.” Indirect discrimination: section 19 EQA

[443]The starting point is section 19 Equality Act 2010 (1)A person(a) (A) discriminates against another

(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a)A applies, or would apply, it to persons with whom B does not share the characteristic, (b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c)it puts, or would put, B at that disadvantage, and (d)A cannot show it to be a proportionate means of achieving a legitimate aim. (3)The relevant protected characteristics are— …race, religion or belief… Objective Justification

[444]Where all the requirements of S.19(2)(a)–(c) EqA have been satisfied in relation to the application of the relevant PCP, the tribunal must turn to the final element of the statutory test of indirect discrimination namely, whether the PCP is justified in accordance with S.19(2)(d) EqA. The application of the PCP will be discriminatory if ‘A cannot show it to be a proportionate means of achieving a legitimate aim’. This is commonly referred to as ‘objective justification’.

[445]In this regard, S.19(2)(d) EqA purports to implement the EU Equal Treatment Framework Directive (No.2000/78), which provides that a PCP will be indirectly discriminatory unless it ‘is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.’

[446]The key elements of the test of objective justification derive from the case law of the ECJ. In the equal pay case of Bilka-Kaufhaus GmbH v Weber von Hartz

1987 ICR 110

, ECJ, the Court held that, to justify an objective which has a discriminatory effect, an employer must show that the means chosen for achieving that objective: correspond to a real need on the part of the undertaking are appropriate with a view to achieving the objective in question, and are necessary to that end.

[447]Hardy & Hanson plc v Lax

[2005] EWCA Civ 846

, the Court held that in deciding whether an indirectly discriminatory act was objectively justified under s.1(2)(b)(ii) of the Sex Discrimination Act 1975 there had to be an objective balance between the discriminatory effect of the condition and the reasonable needs of the party applying it.

[448]It was an error for the Tribunal not to consider what different schemes might have been put in place which would have justified the discriminatory act: Redcar & Cleveland BC v Bainbridge

[2008] ICR 249

at paras 51 and 52 (an equal pay case).

[449]Cross and others v British Airways plc

[2005] IRLR 423

, a paras 54, 58-59 and 70- 73 of the judgment of the EAT delivered by Burton J.

[450]In Ryan v South West Ambulance Services NHS Trust [2020] 10 WLUK 49 (06 October 2020), the EAT reiterated that group disadvantage needs to be established before personal disadvantage, and that there needs to be a corresponding link between the two.

[451]Balcombe LJ in Hampson v Dept of Education and Science

[1989] IRLR 69

at p72: “In my judgment ‘justifiable’ requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party whom rp3 applies the condition”)

[452]The EAT gave an overview of the main principles to be drawn from the case authorities in City of Oxford Bus Services Ltd t/a Oxford Bus Company v Harvey EAT 0171/18,. Direct discrimination

[453]Section 13 EqA sets out the definition of discrimination: (1)A person (A) discriminates against another(B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[454]Section 23 EQA provides that on a comparison of cases there must be no material difference between the circumstances relating to each case.

[455]Detriment is established if treatment is of a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment: Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

HL, and particularly in the judgment of Lord Hope at paras 33-35.

[456]The Tribunal have reminded itself of the guidance in Field v Steve Pye and Co. (KL) Limited and Others

[2022] EAT 68

. …42. Where there is significant evidence that could establish that there has been discrimination it cannot be ignored. In such a case, if the employment Tribunal moves directly to the reason why question, it should generally explain why it has done so and why the evidence that was suggestive of discrimination was not considered at the first stage in an Igen analysis. Where there is evidence that suggests there could have been discrimination, should an employment Tribunal move straight to the reason why question it could only do so on the basis that it assumed that the claimant had passed the stage one Igen threshold so that in answering the reason why question the respondent would have to prove that the treatment was in no sense whatsoever discriminatory, which would generally require cogent evidence. In such a case the employment Tribunal would, in effect, be moving directly to paragraphs 10-13 of the Igen guidelines.

43. Although it is legitimate to move straight to the second stage, there is something to be said for an employment Tribunal considering why it is choosing that option. If at the end of the hearing, having considered all of the evidence, the Tribunal concludes that there is nothing that could suggest that discrimination has occurred and the employer has established a non-discriminatory reason for the impugned treatment, there would be no error of law in just answering the “reason why” question, but it is hard to see what would be gained by doing so, when the Tribunal has already concluded that there is no evidence that could establish discrimination, which would result in the claim failing at the first stage . There is much to be said for making that finding and then going on to say that, in addition, the respondent’s non-discriminatory reason for the treatment was accepted.

44. If having heard all of the evidence, the Tribunal concludes that there is some evidence that could indicate discrimination but, nonetheless, is fully convinced that the impugned treatment was in no sense whatsoever because of the protected characteristic, it is permissible for the employment Tribunal to reach its conclusion at the second stage only. But again, it is hard to see what the advantage is. Where there is evidence that could indicate discrimination there is much to be said for properly grappling with the evidence and deciding whether it is, or is not, sufficient to switch the burden of proof. That will avoid a claimant feeling that the evidence has been swept under the carpet. It is hard to see the disadvantage of stating that there was evidence that was sufficient to shift the burden of proof but that, despite the burden having been shifted, a non-discriminatory reason for the treatment has been made out…

[457]In Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases

2005 ICR 931

, CA, the Court of Appeal the court set out guidance on the approach to be taken to the burden of proof. Harassment: section 26 Equality Act 2010

[458]The starting point is the statutory provision under section 26(1) EqA 2010 provides that: “(1) A person(a) (A) harasses another

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

[459]The Tribunal have considered the guidance in: Tees Esk and Wear Valleys NHS Foundation Trust v Aslam & Anor

[2020] IRLR 495

[460]The Tribunal have had regarded to Pemberton v Inwood

[2018] ICR 1291

, CA, 1324.

[461]Thomas Sanderson Blinds Ltd v English EAT 0316/10 : unwanted conduct means conduct that is unwanted by the employee and whether conduct is ‘unwanted’ should largely be assessed from the employee’s point of view.

[462]In Reed and anor v Stedman

1999 IRLR 299

, EAT, the EAT noted that certain conduct, if not expressly invited, can properly be described as unwelcome. Victimisation

[463]Section 27(2) EqA 2010 states that victimisation occurs where a person(a) (A) subjects another person

(b) (B) to a detriment because B has done, intends to do, or is suspected of doing or intending to do, any of the following protected acts: a) bringing proceedings under the EqA 2010; b) giving evidence or information in connection with proceedings under the EqA 2010, regardless of who brought those proceedings; c) doing any other thing for the purposes of or in connection with the EqA 2010; and d) alleging that the discriminator or any other person has contravened the EqA 2010. … (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith

[464]The Tribunal have been referred by the respondent to the following case authorities which have been considered: Aziz v Trinity Street Taxis Ltd

[1988] IRLR 204

[1988] ICR 534

, CA and Chief Constable of West Yorkshire Police v Khan

[2001] IRLR 830

, HL on the causation point; a reference for an officer was withheld, not 'by reason that' he had brought discrimination proceedings, but because those proceedings were imminent at the time of the reference request and the employer needed to preserve his position.

[465]There may be cases where there is a connection between the employer's acts and the protected act, but it is not the 'reason'; where an employee was dismissed for making delusional accusations against the firm due to a mental condition (the employers taking the view that the situation might recur) that action was not victimisation because the protected act was only part of the background and the employer's action was separable from it: Martin v Devonshires Solicitors

[2011] ICR 352

, EAT. Failure to make reasonable adjustments

[466]Section 20 EqA provides: (1)Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2)The duty comprises the following three requirements. (3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage…

[467]Paragraph 20 (1) of Schedule 8 of EqA provides that : A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage

[468]Section 212 (1) EqA states that ‘substantial’ means ‘more than minor or trivial’

[469]The employer will only come under the duty to make reasonable adjustments if it knows not just that the relevant person is disabled but also that his or her disability is likely to put him or her at a substantial disadvantage in comparison with non-disabled persons.

[470]Knowledge, in this regard, is not limited to actual knowledge but extends to constructive knowledge (i.e. what the employer ought reasonably to have known).

[471]As set out in section 136 Equality Act 2010 and in Dziedziak v Future Electronics Ltd EAT 0271/11 and in Essop and ors v Home Office (UK Border Agency) and another case

2017 ICR 640

, SC, the claimant must prove on the balance of probabilities: 470.1: that employer(a) (A) applies or would apply the PCP to persons with whom B does not share the relevant protected characteristic: section 19 (2)(a) 470.2: the PCP puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share the characteristic: section 19 (2)

(b) 470.3 the PCP puts, or would put, B at that disadvantage: section 19 (2)(c)

[472]It is then for the employment tribunal to consider the final element in the statutory test, whether the PCP is justified in accordance with section19(2)(d) EqA.

[473]Langstaff J at the EAT recommended a 3-stage approach in Environment Agency v Rowan

[2008] IRLR 20

[474]The tribunal is concerned with outcomes and not process and/or the failure of the respondent to take a particular step or obtain particular advice is not in and of itself a failure to make an adjustment:Tarbuck v Sainsbury’s Supermarket Ltd

2006 IRLR 664

/ Spence v Intype Libra Ltd [2007]UK EAT / Hay Surrey County Council / Romec v Rudham [2007] UKEAT).

[475]When assessing whether an adjustment is reasonable the respondent in its submissions avers that the Tribunal must interpret the law in accordance with the Framework Directive, which stipulates there is no duty to take measures that would impose a "disproportionate burden on the employer".

[476]In Lamb v The Business Academy Bexley

UKEAT/0226/15

, the EAT held that: "An adjustment to a working practice can only be categorised as reasonable or unreasonable in the light of a clear understanding as to the nature and extent of the disadvantage".

[477]In RBS v Ashton

UKEAT/0542/09/LA

, the EAT held that an employer does not have a duty to address disadvantage suffered by a disabled person generally; the duty only encompasses disadvantage which the disabled person suffers compared to nondisabled persons as a result of the employer's PCP. Constructive knowledge

[478]EHRC Employment Code - employers must ‘do all they can reasonably be expected to do’ to find out whether a claimant has a disability. Effectiveness of proposed adjustment

[479]An essential question is whether a particular adjustment would or could have removed the disadvantage experienced by the claimant. It is sufficient for the tribunal to find that there would have been a prospect of it being alleviated. The Tribunal have also had regard to the Court of Appeal in Griffiths v Secretary of State for Work and Pensions

2017 ICR 160

, CA, and the remarks of Lord Justice Elias on efficacy in the context of whether an

[480]In Cosgrove v Caesar and Howie

2001 IRLR 653

, EAT: in this case neither the claimant nor her GP could think of a reasonable adjustment that would have enabled her to return to work. In these circumstances the EAT held that the tribunal had made an error of law in treating the claimant’s views and those of her GP as decisive on the issue of adjustments when the employer had given no thought to the matter itself.

[481]Although a claimant is not required to identify potential adjustments him or herself, the fact that the claimant does not do so is something that can be taken into consideration by a tribunal. In Dominique v Toll Global Forwarding Ltd EAT 0308/13.

[482]The test of reasonableness under section 20 EqA is an objective one and it is ultimately the employment tribunal’s view of what is reasonable that matters.

[483]The Equality and Human Rights Commission’s Code of Practice on Employment (2011) (‘the EHRC Employment Code’) list of factors which it may be reasonable for an employer to have regard which includes the extent to which taking the step would prevent the effect in relation to which the duty was imposed (i.e. the effectiveness of the step.)

[484]The claimant refers to the cases of: S v A 2201874/2018, Cosgrove v Caesar & Howie

[2001] IRLR 653

, EAT, Matuszowicz v Kingson upon Hull City Council,

[2009] EWCA Civ 22

and Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

, S v A 2201874/2018) in her submissions. Time Limit

[485]The applicable time limit is set out in section 123 EqA: (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable… (3) For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a)when P does an act inconsistent with doing it, or (b)if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. Constructive unfair dismissal

[486]The starting point is the statutory provisions pursuant to which a claim for constructive unfair dismissal may be brought.

[487]Section 95 of the Employment Rights Act 1996 provides :“(1) For the purposes of this Part an employee is dismissed by his employer if (and subject to subsection (2) . . ., only if)— (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.”

[488]The approach to constructive dismissal is set out by Lord Denning in Western Excavating (ECC) Ltd v Sharp 119781 1 All ER 713, 119781 QB 761, 119781 2 WLR 344, CA, in which he defined constructive dismissal as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed.”

[489]The guidance around a breach of the implied term of trust and confidence is set out in Malik v. Bank of Credit; Mahmud v. Bank of Credit (19987 AC 20; 1199713 All ER 1; 119971 IRLR 462; 1199713 WLR 95; 119977 ICR 606 where Lord Steyn held that an employer shall not: “…without reasonable and proper cause, conduct itself in a manner calculated (or) likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”

[490]In Lewis v Motorworld Garages Ltd 119867 ICR 157, Glidewell LJ pointed out that (at p 169 F-G) that the last action of the employer which leads to the employee leaving need not itself be a breach of contract.

[491]In Omilaju v Waltham Forest London BC 1200511 All ER 75 Dyson LJ gave the following guidance at paragraph 21: “If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.” Tribunal stress.

[492]If a final straw is entirely innocuous, this does not mean that all previous conduct by the employer is irrelevant: Mr C Williams v The Governing Body of Alderman Davies Church in Wales Primary School

UKEAT/0108/19

. HHJ Auerbach:"so long as there has been conduct which amounts to a fundamental breach, [the breach has not been affirmed], and the employee does resign at least partly in response to it, constructive dismissal is made out. That is so, even if other, more recent, conduct has also contributed to the decision to resign."

[493]Mr C Williams v The Governing Body of Alderman Davies Church in Wales Primary School: The conduct amounting to a repudiatory breach does not have to be the only reason for resignation, or even the main reason, so long as it materially contributed to, or influenced, the decision to resign.

[494]In Tullett Prebon plc and ors v BGC Brokers LP and ors

2011 IRLR 420

, CA, the Court of Appeal appeared to depart from the long and well-established principle that the employer’s subjective intentions are irrelevant when it suggested that an employer’s intention, objectively assessed, was of paramount importance in assessing whether there had been a fundamental breach of contract. However, in Leeds Dental Team Ltd v Rose

2014 ICR 94

, EAT, the Appeal Tribunal rejected the notion that the decision in Tullett Prebon had changed the law and confirmed that the test of whether there was a repudiatory breach of contract remains an objective one.

[495]The issue of affirmation is essentially one of conduct, not simply passage of time. In Leaney v Loughborough University

2023 EAT 155

, the EAT summarised the general principles on affirmation of contract in a constructive dismissal case, noting that affirmation may be expressly communicated or may be implied from conduct.

[496]WE Cox Toner (International) Ltd v Crook

1981 ICR 823

, EAT and Chindove v William Morrison Supermarkets plc EAT 0201/13 : the mere passage of time prior to resignation will not, in itself, amount to affirmation. A prolonged or significant delay may give rise to an implied affirmation because of what occurred during that period. Suspension

[497]The Court of Appeal commented in Crawford and anor v Suffolk Mental Health Partnership NHS Trust

2012 IRLR 402

, CA, that even where there is evidence supporting the employer’s investigation, suspension ‘should not be a knee-jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is’: As Lady Justice Hale, as she was, pointed out in Gogay v Herfordshire County Council

[2000] IRLR 703

, even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is. I appreciate that suspension is often said to be in the employee's best interests; but many employees would question that, and in my view they would often be right to do so. They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging. Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least I suspect because the suspension appears to add credence to them. It would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it. It was partly to correct that danger that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him. Unlawful Deduction of Wages

[498]Section 23 ERA 1996 provides:: (1)A worker may present a complaint to an employment tribunal— (a)that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2))… (2)Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a)in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or (b)in the case of a complaint relating to a payment received by the employer, the date when the payment was received.

[499]Section 13 ERA 1996 provides: (1)An employer shall not make a deduction from wages of a worker employed by him unless— (a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b)the worker has previously signified in writing his agreement or consent to the making of the deduction. (2)In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a)in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b)in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

[500]Section 27(1) of the Employment Rights Act 1996 (ERA) defines ‘wages’ as ‘any sums payable to the worker in connection with his employment’.

[501]The Court of Appeal in New Century Cleaning Co Ltd v Church

2000 IRLR 27

, CA, held that the term ‘or otherwise’ does not extend the definition of wages beyond sums to which the worker has some legal, but not necessarily contractual entitlement. Conclusions and Analysis

Credibility

[502]Before turning to the issue of disability, the Tribunal make some general observations in terms of the claimant’s credibility. Given the absence of a joint independent medical expert report or any report produced by the claimant which sets out clearly the diagnosis of Long Covid at the relevant time and the symptoms, there is limited medical evidence and therefore the claimant’s oral evidence is particularly important.

[503]The respondent made fairly lengthy submissions regarding the claimant’s credibility and in summary submits that her credibility had been impugned by her own hand throughout these proceedings, due to her continued insistence on casting aspersions and slurs against the respondent and its employees, often without any evidence beyond a bare assertion. Such comments directly attack the reputations of those involved and are, the respondent suggests, baseless and further submits that that on the balance of probabilities the claimant sent the WhatsApp messages.

[504]The Tribunal does have concerns about the claimant’s credibility for the reasons set out in its findings of fact. The claimant is an intelligent woman, well versed in her employment rights. The claimant claims to have been too unwell to attend even remote hearings and then attends the grievance appeal and is clearly able to participate effectively. The claimant alleges that she suffered serious ‘crashes’ but sought no medical attention. Her evidence around the WhatsApp Group Messages attaching the offensive song lyrics is particularly problematic in that it is simply not plausible and the Tribunal finds not credible. The claimant is also prepared to make serious allegations without evidence, such as alleging that Mr Bridge and Ms Spencer may have been responsible for nails left on her drive, which is a serious and unpleasant allegation. The Tribunal consider that it is appropriate to approach her oral evidence particularly about the description of her condition and its symptoms (given the paucity of medical evidence, which she could have addressed by obtaining an expert report) therefore with some caution. Disability

[505]The respondent concedes that the claimant was disabled at the relevant time because of Long Covid and accepts that a symptom was tiredness but disputes the other pleaded symptoms and disputes the pleaded substantial disadvantage.

Legal Principles

[506]The burden is on the claimant to establish the pleaded adverse effects and

[507]The EHRC Code B1 provides that : B1 …A substantial effect is one that is more than a minor or trivial effect. This is stated in the Act at S212(1). This section looks in more detail at what ‘substantial’ means. It should be read in conjunction with Section D which considers what is meant by ‘normal day-to- day activities’ B11. Environmental conditions may exacerbate or lessen the effect of an impairment. Factors such as temperature, humidity, lighting, the time of day or night, how tired the person is, or how much stress he or she is under, may have an impact on the effects. (See also paragraphs C5 to C8, meaning of ‘long-term’ (recurring or fluctuating effects). C5. The Act states that, if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur. (In deciding whether a person has had a disability in the past, the question is whether a substantial adverse effect has in fact recurred.) Conditions with effects which recur only sporadically or for short periods can still qualify as impairments for the purposes of the Act, in respect of the meaning of ‘long-term’ (Sch1, Para 2(2), see also paragraphs C3 to C4 (meaning of likely).) C3. The meaning of ‘likely’ is relevant when determining:• whether an impairment has a long-term effect (Sch1, Para 2(1), see also paragraph C1)

• whether an impairment has a recurring effect (Sch1, Para 2(2), see also paragraphs C5 to C11)

• whether adverse effects of a progressive condition will become substantial (Sch1, Para 8, see also paragraphs B18 to B23), or

• how an impairment should be treated for the purposes of the Act when the effects of that impairment are controlled or corrected by treatment or behaviour (Sch1, Para 5(1), see also paragraphs B7 to B17). In these contexts, ‘likely’, should be interpreted as meaning that it could well happen.

[508]For the purpose of section 6 EqA, the impairment must cause the adverse effect on the person’s ability to carry out normal day-to day activities, and the test of causation is objective. When it is in dispute whether the impairment has the claimed effect, this must be determined by the Tribunal on the evidence before it; it is not enough that the claimant truly believes that it does.

[509]Thus, in a case where the claimant asserts that engaging in a certain activity will risk triggering or exacerbating some adverse effect of the impairment itself, the Tribunal must consider whether it has some evidence that objectively makes good that contention.

[510]The Guidance provides that the cumulative effects of an impairment should be taken into account when working out whether it is substantial. An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effects on more than one activity, taken together, could result in an overall substantial adverse effect .

[511]Paragraph 5(1) of Schedule 1 to the EqA provides that an impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if measures are being taken to treat or correct it and, but for that, it would be likely to have that effect. In this regard, likely means ‘could well happen’. Brain Fog/ Cognitive Impairment

[512]The Tribunal found it credible (despite the absence of any medical evidence to support that this was the doctor’s opinion) that the stress of the disciplinary investigation process and in particular the decision to proceed with disciplinary action, caused some additional fatigue. However, the claimant’s evidence is that she was at times working in excess of 37.5 hours per week (hence her claim for overtime) to prepare documents and by working so excessively the Tribunal conclude that she failed to take reasonable steps to modify her behaviour to prevent any disadvantage this may have caused.

[513]The Tribunal also consider that anyone suspended from work is likely to experience some degree of stress and producing what were excessively lengthy documents would be more difficult in those circumstances and people without her condition are likely to find that exercise tiring however, on balance the Tribunal conclude that the claimant was likely to be more susceptible to fatigue when stress.

[514]The Tribunal find that the cumulative effect of the physical limitations (i.e. fatigue caused by climbing stairs) and increased susceptibility to tiredness at times of stress cumulatively amounted to a significant adverse effect on her normal day-to-day activities.

[515]The Tribunal are not persuaded however for the reasons set out above in the findings of fact, that the claimant suffered with ‘brain fog’ or impaired cognitive functioning beyond experiencing some additional fatigue after working excessive hours but not to an extent that it impaired her critical thinking or prevented her from effectively participating in the meetings held with her.

[516]The claimant produced lengthy documents and formulated legal arguments and complains of the impact of that work rather than being unable to do it because of impaired cognitive functioning.

[517]It seems in preparing long documents, the claimant was able to maintain her concentration for a prolonged period of time, albeit the focus is on what she could not do rather than what she could.

[518]The Tribunal do not consider that the claimant’s inability to work excessively long hours without feeling to a degree more tiredness that she would have before she had contracted Long Covid, (i.e. working over and above a normal working day), to produce lengthy documents would be a barrier to working life, as per the EAT decision in Banaszczyk v Booker Ltd

[2016] IRLR 273

, EAT at paragraph 47.

[519]The Tribunal do not find that the evidence suggests that the claimant’s condition significantly impaired her ability to communicate, deal with paperwork or digest information. The claimant participated in meetings, produced lengthy documents, researched and cited relevant case law. What could she not do? It is unclear, other than she experienced some additional tiredness after working excessive hours to produce those lengthy documents.

[520]The Tribunal did not find the claimant’s evidence credible or supported by the medical evidence in terms of the extent of the effects. While the claimant complained about attending Teams meetings and the impact of doing so, she nonetheless attended the investigation and grievance and grievance appeal meetings by Teams. The claimant had herself been a union representative and was supported by a very experienced union representative and still attended those meetings. Despite mentioning a ‘spike’ in her blood pressure, she did not ask for a break or adjournment. That she had a ‘spike’ is not supported by the medical evidence at the time and the Tribunal applies some caution to the claimant’s unsupported oral testimony. The Tribunal do not find on balance that the claimant had such a ‘spike’ in her blood pressure or believed she had.

[521]The Tribunal find that the claimant has embellished the impact during the relevant period, more likely than not to deflect and delay the disciplinary proceedings. While she now complains of attending Teams meetings, the claimant felt able to attend interviews for a new job over Teams. While complaining of ‘brain fog’ and fatigue the claimant seeks a payment for long hours she alleges she worked while on suspension over and above normal working hours, rather than request more time to prepare the documents. She complains of a mental health ‘crash’ but did not seek any medical assistance or report ‘crashes’ to her GP.

[522]The Tribunal conclude that while the claimant was disabled during the relevant period because alone the physical impact of extreme tiredness from climbing stairs was more than trivial. It is likely similar physical activities caused similar increased fatigue however the Tribunal do not find that the other symptoms, despite the detail impact statement, beyond some increased susceptibility to tiredness/fatigue when experiencing significant stress (including as a result of an excessive workload), have been made proven. The medical evidence (and other contemporaneous documents) do not support the detailed evidence about her symptoms set out in the claimant’s evidence in chief.

[523]The Tribunal are mindful that while there is no definitive test for Long Covid, and while it appears that the claimant had other health issues (e.g. ear problems, back pain etc), she has not established that they were linked (or likely) to be linked to Long Covid and the medical evidence does not establish that her treating doctors considered they were linked (taking into account her medical history and the timeline and severity of any reported symptoms). Nor has she established that any substantial effects were long term (or likely to recur at the relevant time). The claimant does not allege that in addition to Long Covid she had other unrelated conditions which were long term and should be considered in addition to the symptoms of Long Covid, her claim is firmly put on the basis that she was disabled because of one condition, namely Long Covid and the various symptoms of it, including alleged brain fog and cognitive impairment. Modification of behaviour

[524]The Tribunal also take into account that the claimant could have requested more time to put together the documents. The EHRC Code provides: B7. Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities. …Account should be taken of the degree to which a person can reasonably be expected to behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities. (See also paragraph B12.)

[525]The Tribunal consider that it would have been reasonable, for the claimant to have asked for more time and not worked on the documents late into the evening. That sort of work would exhaust someone in good health and there is no indication that this request would have been refused.

[526]It would be reasonable to expect the claimant to modify their behaviour so that she worked on the documents for a reasonable period e.g. the equivalent of a normal working day.

[527]The Tribunal consider that the claimant put herself under unnecessary strain and complained of the impact on her mental capacity in circumstances where she could have produced a document focussing on the relevant information and/or asked for more time and the Tribunal conclude that on balance, had she taken those steps, while still meeting the definition of being disabled (due to the ongoing restriction around climbing stars and similar physical exertion) the effect of tiredness would not of itself cause create a substantial disadvantaged. Unlawful deduction from wages (Employment Rights Act 1996 section 13)

[528]Bonus payment of £500 (a) Bonus Payment of £500 Jurisdiction -Time Limits

[529]The claimant complains that she was entitled to the bonus which the Tribunal conclude , was to be paid on 20 July 2023, in the normal payroll run. Are the payments wages?

[530]The Court of Appeal’s in New Century Cleaning Co Ltd v Church

2000 IRLR 27

, CA, held that the S.27(1) definition of wages required some legal, although not necessarily contractual, entitlement to the payment in question:. As Beldam LJ said in Church at paragraph 62: "62 For wages to be 'properly payable' by an employer, he must be rendered liable to pay, either under the contract of employment or in some other way. Section 27 contains some examples of sums which may be payable, either under contract or because for some other reason the employer is liable to make payment as an addition or supplement to 'wages'. An example of a sum properly payable otherwise than under contract would be a minimum wage payable by order of a wages council. Nor is it difficult to see how a fee, bonus, commission, holiday pay or other emolument referable to employment may be payable otherwise than under the contract of employment. Such payments may be customary or required by collective agreements without express provision being made in a contract of employment." Tribunal stress

[531]There has to be a legal obligation to make a payment before the requirements in section 13(1) and (2) ERA are to be considered.

[532]Bonuses to which a worker has no legal entitlement do not fall within the definition of wages under S.27(1)(a). However, a discretionary bonus may at some point crystallise into a contractual bonus, depending upon the terms of the contract.

[533]Chequepoint (UK) Ltd v Radwan, unreported 15.9.00, CA, the employer ran a discretionary bonus scheme and agreed to notify the employee of the terms of any such scheme. The Court of Appeal held that once the terms had been notified, the employee became contractually entitled to the bonus until such time as the employer gave notice that the scheme had been changed or withdrawn.

[534]Once an employer tells a worker that the worker is going to receive a bonus payment on certain terms, it is under a legal obligation to pay that bonus in accordance with those terms, at least until the terms are altered and notice of the alteration is given : Farrell Matthews and Weir v Hansen

2005 ICR 509

, EAT. According to the EAT in that case, this applies whether the discretion to award a bonus is granted under contract or by custom and practice or by an ad hoc decision. The employer’s argument based on S.27(3), that since the bonus had not been paid, it could not be wages, was misconceived. S.27(3) is limited to situations where an employer is not liable to pay bonuses but has made ex gratia or one-off payments to workers: 41. There may also be situations in which a payment, which could properly be regarded as a bonus, is paid on an ex-gratia or one−off basis. Such a payment may be made where there is no obligation by contract, custom or practice to make such a payment but where the employer chooses to make it. In such circumstances it may well be that there is no legal liability on the employer to make such a payment. Section 27 (3) in our judgment is designed to cover situations where such a payment has in fact been made.

[535]Contractual terms relating to bonuses should be interpreted in line with the meaning they would convey to ‘a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract’: Investors Compensation Scheme Ltd v West Bromwich Building Society (No.1)

1998 1 WLR 896

, HL. This means that if a term is badly drafted and its literal interpretation would lead to a result that had clearly never been intended by the parties, it should be interpreted by taking into account the context and commercial background behind it: Chartbrook Ltd and anor v Persimmon Homes Ltd and anor

2009 3 WLR 267

, HL. In that (non-employment) case, the House of Lords drew a distinction between context and background (which can be taken into account) and pre-contractual negotiations (which must not be taken into account) in determining the proper meaning of words in a contract.

[536]In the absence of an express agreement, courts and tribunals may be willing to imply entitlement to a bonus on the basis of the custom and practice of an individual employer. In Frischers Ltd v Taylor EAT 386/79, for example, a Christmas bonus had been paid to all employees for several years. The EAT held that there was an implied term that the bonus would be paid and that the employer was in breach of contract when withholding part of an employee’s bonus on discretionary grounds Claimant

[537]The claimant submits that the Disciplinary Policy does not include any provisions around eligibility for bonus on the grounds to justify the bonus being withheld from the claimant. The claimant averts that the respondent did not exercise their discretion fairly.

[538]The claimant refers to Noble Enterprises Ltd v Lieberum [1998] 6WLUK420 for the principle that once the bonus scheme had begun, the discretion was limited. It was made clear that if an employer wished to deprive an employee of the benefit of a bonus payment, then it was incumbent on the employer to make such a term clear in advance. Respondent

[539]The claimant contends that these allegations are significantly out of time as this act took place more than 5 months prior to the claimant initiating her claim in December 2023. Bearing in mind the knowledge and support the claimant had at this time it was reasonably practicable for her to have pursued these claims sooner than she did and/or that the Tribunal should not exercise its discretion to extend time.

[540]Alternatively, the respondent asserts that there is no contractual entitlement to a bonus since 6 July 2023, as the claimant had failed to meet the eligibility criteria, she was advised that no bonus would be paid [page 231] and notably, Mr Spencer and Ms McCarthy also had their bonuses withheld whilst they were under investigation due to the grievances the claimant had raised. The respondent contends that that the claimant’s disability had no bearing on this decision not to pay bonus. Ms McCarthy explained that the cut off for payroll is 5th of each month; any bonus is discretionary and subject to an eligibility criterion; and the claimant was advised on no less than two occasions of the eligibility criteria yet continued to pursue these claims in spite of this knowledge.

[541]The respondent relies on the Disciplinary Policy [clause 13, page 646] and invites the Tribunal to find that if the claimant had been subject to a final written warning then she would not have been eligible for the bonus. Moreover, if the claimant was dismissed the claimant would not be entitled to future bonus payments, as claimed for by the claimant in her schedule of loss.

[542]The Employment Rights Act 1996 defines wages as any sum payable to the worker in connection with his employment with a list of the types of sums included. At the top of the list is any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise.

[543]The Contract itself makes no mention of an entitlement to bonus.

[544]The Disciplinary Guidance Document provides that ‘conduct’ will be taken into account and the Tribunal consider that the meaning this conveys to ‘a reasonable person’ is that this is limited to circumstances in which a warning has been issued or there is an investigation into a warning, some form of formal process pursuant to which a decision will be made about conduct in which the employee will be able to make representations and challenge it.

[545]Have the terms of the bonus scheme therefore been notified such that the employees became contractually entitled to the bonus until such time as the respondent gave notice that the scheme had been changed or withdrawn? There is no term which states that that a bonus, discretionary or otherwise, will be paid.

[546]Was there a custom such that there was a reasonable expectation of a bonus? The claimant adduced no evidence to support that there was an established custom and practice of payment of payment subject to certain criteria or payment regardless of the conduct of the employee or the performance of the respondent in each bonus year.

[547]The 6 July 2023 letter states that the respondent had failed to meet its performance targets. The claimant does not allege that the respondent had in previous years paid a bonus when it failed to meet its performance criteria which may have led staff to understand that a bonus would be paid regardless of company performance. The indication in the letter is that as the performance criteria had not been met the bonus would not be normally payable however, the respondent had decided on this occasion (i.e. as a one off) to still pay one subject to certain further terms and subject to certain qualifying criteria.

[548]The claimant in cross examination referred to evidence about the bonus in her remedy bundle. The Tribunal have considered those documents.

[549]There is evidence of a bonus paid in 2021 and 2022 only in the remedy bundle [RB page 19] however there are no copies of the letters confirming the criteria applied or whether company performance criteria had been met.

[550]There is a copy of an announcement for the 2023/2024 bonus dated May 2024 [ RB Page 15] which states: “The decision on whether or not to pay a bonus is taken by the Board based on our financial and customer satisfaction performance measures. Ww met out financial operating surplus target …”

[551]It goes on to set out the criteria (which would seem to indicate that criteria are set when the bonus is announced because it does not refer to any other document where this has been previously set out). It includes that employees will not be eligible is there is a live sanction on file or they are under investigation within any “of our HR policies at the point at which bonuses are processed for payment. Subject to the outcome, your eligibility to the bonus will be reviewed e.g. if the outcome of the investigation proves the allegations are unfounded you will be paid your bonus in the future pay run.”

[552]The 2025 bonus announcement letter also refers to the Board deciding whether to pay a bonus based on the respondent’s performance and customer satisfaction criteria [page 17].

[553]On balance the Tribunal find that the bonus, not referred to in the Contract, was wholly discretionary, and a bonus was normally only paid when the employer met its performance targets which it seems to have failed to do so in 2023 but nonetheless had decided to still pay it subject to certain additional criteria.

[554]This was a relatively small bonus. It did not make up a significant element of the claimant’s remuneration package.

[555]The claimant has not established an actual legal, even if not necessarily contractual, entitlement to the payment in 2023 particularly given the respondent failed to meet its performance criteria.

[556]Even where a bonus scheme is found to be discretionary, the employer’s exercise of its discretion is not unfettered but is constrained by the operation of implied contractual terms.

[557]In Midland Bank plc v McCann EAT 1041/97, the EAT held that while there was no obligation to exercise a discretion reasonably, an employer could not exercise its discretion capriciously when deciding whether to award a performance bonus to a senior employee who was being made redundant. In Clark v Nomura International plc

2000 IRLR 766

, QBD, the High Court preferred the test of whether the employer had acted irrationally or perversely in exercising its discretion.

[558]The Tribunal do not find a decision not to pay bonus where an employee is under investigation for gross misconduct (or subject to a grievance investigation) is either perverse or irrational.

[559]In the Hellewell case which the claimant refers to, the EAT noted that: Para 31 It is therefore unnecessary to consider in any detail Miss Stout’s alternative submission, which is that there was an implied term of the 2009 scheme that if an employer was suspended pending an investigation into gross misconduct allegations, no bonus would be paid during the period of suspension, but my preliminary view is there is much force in this point.

[560]The Tribunal consider that equally there is force in the argument that any payment of a discretionary bonus would be suspended pending the determination of whether the claimant was going to be dismissed where there were extant serious conduct issues.

[561]The Tribunal conclude that sections 13(1) or (2) ERA do not have any relevance to the bonus and the Tribunal conclude that the decision not to pay the bonus to the claimant does not constitute a “deduction” so that sub-sections (1) and (2) of section 13 ERA are applicable, because at the earlier stage of the legal analysis it has not been shown that the bonuses were payable pursuant to a legal obligation and so were not in the words of section 13(3) ERA “properly payable”. What would have occurred if the claimant had been issued a final warning or dismissed?

[562]The Disciplinary Policy stipulates that: “When we do the bonus and/or pay review if you have a final written warning that has not expired on your file then you will not be eligible for these. Where you have a first written warning that has not expired we will take the severity of the allegations into account when deciding your eligibility for a pay review and/or bonus payment” [clause 13, P646].

[563]The Tribunal concludes that if the claimant had been subject to a final written warning or dismissed then she clearly would not have been eligible for the bonus.

[564]It is not the claimant’s case that the bonus was an act of disability discrimination however, in terms of any argument about the way the discretion was applied, the Tribunal conclude that the reason had nothing to do with the claimant’s disability but was because of her conduct in sending the 17 May 2023 emails. Time Limits

[565]Section 23 ERA provides that (2) subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with—(a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or

(b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received. And; (4) Where the employment tribunal] is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.

[566]The bonus was to be paid to those who qualified for payment, in the July payroll, which would have been on the 5 July 2023. The primary 3-month time limit to present a claim was 4 October 2023. Taking into account the Acas early conciliation period of 19 August to 30 September 2023, the time limit was extended to 15 November 2023. The claim was presented on 12 December 2023. It was thus presented, almost a month out of time.

[567]Given the claimant’s experience as a trade union representative, the support she had from the union, her own legal qualifications and ability to research employment rights, there is no good reason why the claimant could not have issued her claim for this payment in time. It was reasonably practicable for her to do so. The claim is dismissed because it has been brought out of time and the Tribunal have no jurisdiction but in any event, the Tribunal consider that the claimant has not in any event established an entitlement to this bonus.

[568]The claim is not well founded and is dismissed. (b) payment of TOIL on 23 August 2023, 13 September 2023 and 20 September 2023. Claimant’s submission

[569]The claimant submits that HR’s evidence confirmed that employees are expected to prepare disciplinary and grievance materials outside working hours, without pay or TOIL.

[570]The claimant submits that her extensive preparation for engaging in the grievance and disciplinary processes while on prescribed sick leave amounts to an unlawful deduction of wages for time reasonably spent defending herself in ‘employer-mandated processes’ and the expectations for engagement in the disciplinary and grievance processes were unrealistic for completion within contracted working hours, (especially with the claimant’s Long Covid symptoms being exacerbated at the time, and the repeated referencing of calendar days for preparation time). The claimant alleges that there was ‘implied agreement’ because of the hearing manager’s-imposed obligations. Respondent submissions

[571]The respondent in essence submits that the Contract states that overtime is not payable in this post and that any request for “paid overtime must be agreed in advance by your manager” and no consent was given.

[572]The Tribunal consider this claim is without merit.

[573]The Contract is clear that any overtime must be agreed in advance, it is an unambiguous express term , and the claimant conceded in cross examination (and does not submit otherwise) that prior to her dismissal she had not obtained permission to claim for any overtime. Under cross examination the claimant conceded that during the period of 1 August and 20 September 2023 she was either on paid suspension or on sick leave and she was paid her full salary from 25 May 2023 to 20 September 2023.

[574]The claimant does not identify nor allege that there was a practice of the respondent to pay overtime to an employee who spends preparing for grievance/disciplinary processes. Ms McCarthy confirmed in cross examination that there was no such practice.

[575]Other than the grievance appeal hearing on 3 August 2023, (which the respondent points out in submissions lasted for approximately 1.5 hours), the claimant did not attend any further hearings.

[576]There was the Tribunal find no contractual right to these payments. The claimant was not paid for the time she spent preparing documents because there was no agreement for her to work overtime. Further, the claimant has not provided evidence to prove her claim that she worked more than 37.5 hours a week in preparing the documents she produced.

[577]The refusal to pay the claimant for the time she asserts she spent on preparing for the internal processes was not something she was contractually entitled to be paid for, she has not established what time was spent and it is not a breach of the contractual terms not to pay nor does it amount to an act which of itself breached trust and confidence or contributed to it. The Tribunal note that the document she produced for the grievance appeal although it was a lengthy document, a significant amount of the information contained within it was not relevant to the appeal.

[578]The claimant has not established any entitlement to these payments.

[579]The claim is not well founded and is dismissed. Inference

[580]Before turning to the further claims as set out in the List of Issues (LOI), the claimant invites the Tribunal in her written submissions to draw adverse inferences from the failure of certain witnesses to attend the hearing and provide a statement. She submits: “Several key decision-makers did not attend, notably Alex Spencer and Richard Ing. The Tribunal is therefore invited to draw adverse inferences from:• Their absence as witnesses despite central involvement;

• Lack of evidence explaining decisions;

• HR’s admitted failure to keep records or minutes; and

• Post-event “process improvements,” supporting previous procedural failings. The only document of substance was an email on 26/07/2023 showing that Richard Ing already knew of the forthcoming disciplinary hearing before the 01/08/2023 formal grievance was sent by the Claimant, a protected act. That email underlines that the process was predetermined and that HR’s subsequent conduct was reactive and defensive motivated by the grievance issued by the Claimant.”

[581]In her further submissions in response to the respondent’s submissions [page 5] the claimant also referred to Ms Chandarana not being called and refers to the pausing of the processes. The Tribunal has set out its findings on the reasons why the process was paused.

[582]The Tribunal take into account the involvement of Alex Spencer, he was involved in the act of suspension, a decision which was taken along with Ms McCarthy who attended the Tribunal to present their reasons for the suspension as the qualified HR person who gave advice around that decision. Mr Spencer was interviewed by Mr Clarke about his reasons, and the meetings notes record his explanation which was disclosed in the bundle. The key issue around that decision was consideration of alternative roles and Ms McCarthy spoke to that and the Tribunal have found that there was no real consideration of alternatives to suspension.

[583]Mr Spencer instructed Mr Clarke to complete his investigation. Mr Clarke was called as a witness to give evidence on that process and while he said he had wanted to ask some more questions. He understood that he had to complete his report because the grievance the claimant had made against him meant that it was no longer considered appropriate for him to be involved in the process and the Tribunal consider that it is a reasonable and rational explanation which the Tribunal on balance accept. Other managers including Ms Farish, were not involved in certain processes (i.e. the suspension process) because of the previous grievance the claimant had raised about her.

[584]In terms of Mr Ing, other than the issue of the email on 26 July 2023, the claimant does not identify what inferences it would be reasonable to draw from his non-attendance. The issue relating to the events around the arranging of the disciplinary hearing and the August grievances are dealt with by Ms Thorpe. The 18 August grievance which raised complaints about Mr Ing personally, is not relied upon as a Protected Act.

[585]While both remain employed by the respondent, Ms Thorpe gave evidence that she assumes they were not called based on the list of issues and the respondent points out that the claimant has not identified them personally in the list of issues.

[586]The Tribunal also take into account that the claimant alleges that her friend Sonny was responsible for sending the Group WhatsApp messages but he has neither attended as a witness to swear to his involvement under oath or provided a sworn statement to that effect, and that issue is clearly highly pertinent to her credibility as well as to the arguments around a Polkey deduction and contributory fault.

[587]The Tribunal address in the judgment considerations of inferences and have considered when doing so the guidance on witnesses not attending a hearing as set out in Phipson on Evidence 21st Edition: The court may be entitled to draw adverse inferences from the absence of a witness who was available to and might have been called by a party. However, the court does not usually do so, not least because there may be all sorts of reasons why a particular witness is not called and one usually cannot be confident to infer what the witness would actually have said. Further, in general it is for a party to choose which witness he wishes to call and there is no property in a witness, and in the case of a witness in the jurisdiction the opposing party can seek to compel a witness’s attendance by means of a witness summons. It is in a comparatively small number of cases that it would be appropriate to draw an adverse inference, but where it is sought to do so, the party inviting the court to exercise such a discretion must:• (1)Set out clearly

(a) the point on which the inference is sought and identifying the inference sought;

(b) the reason why it is said that the missing witness would have material evidence to give on that issue;

(c) why it is said that the party seeking to have the inference drawn has himself adduced relevant evidence on that issue; and

(d) why the party seeking the inference could not himself be expected to call or witness summons the witness.

• (2)Explain why such inference is justified on the basis of other evidence that is before the court. It is then open to the other party to resist such an inference by giving a good reason why the witness is absent or silent. If he is able to do so, then no inference should be drawn. If there is some credible explanation given, even if not wholly satisfactory, the potentially detrimental effect of his absence or silence may be reduced or nullified.82

[588]The Tribunal conclude that it is not appropriate in the circumstances to draw adverse inferences against the respondent for not calling Mr Ing, Mr Alex Spencer or Ms Chandarana as witnesses in the circumstances. The Tribunal does consider on balance that it is appropriate to draw an inference adverse to the claimant in not calling her friend Sonny as a witness or even submit a sworn statement from him (given he also did not contact the respondent during the claimant’s suspension), with respect to the credibility of the claimant’s denial that she was responsible for sending the 17 May 2023 WhatsApp. The claimant mentioned that she did not call Sonny as a witness because of his health issues, however a sown statement could still have been obtained from him. Direct Discrimination The Respondent did not act consistently upon receipt of the Claimant's grievances made in August 2023, in the way the Respondent acted upon receipt of allegations against the Claimant made by Jesseca Spencer on 25 May 2023.

[589]The claimant, during the cross examination of Mr Martin, confirmed that the claim of direct discrimination does not relate to him and it is dismissed to the extent it relates to his conduct. The conduct

[590]The claimant asserts that the respondent’s own grievance policy required fair, impartial, consistent and timely action of the investigation and aim for completion of formal process within two weeks. The claimant’s August 2023 grievances were ignored for months with no timely, fair or consistent outcome afforded to the claimant.

[591]In her first set of written submissions the claimant focusses this allegation against Ms Thorpe and did so in her cross examination, it was Ms Thorpe who was appointed to deal with the claimant’s August grievances. The claimant points out that Ms Thorpe was asked by Richard Ing on 18 September 2023 to be the investigation manager for outstanding grievances submitted by the claimant and she was instructed only to “compare” the grievances and carry out a paper exercise, not investigate them.

[592]In terms of the substance of her original submissions, the claimant complains that Ms Thorpe did not interview witnesses or review evidence and submitted her ‘conclusion’ to Richard Ing on 26 September 2023 with no outcome provided to the claimant at the time. The actual grievance outcome letter was drafted by solicitors and shared by Richard Ing on 26 October 2023, (a person named in the 18 August 2023 formal grievance).

[593]Ms Thorpe accepted the outcome was not provided in a timely manner in line with the Grievance Policy, she was candid about that when giving evidence and did not attempt to resile from there having been a delay, as set out in the findings of fact.

[594]The claimant submits that Ms Thorpe’s assertion on this being the first occasion in 10 years where she was asked to carry out a paper exercise for a grievance, further demonstrates that the respondent departed from its own standards of practice and failed to apply established fair and consistent procedures, rendering both the grievance and disciplinary processes inherently defective.

[595]The claimant submits that there was no justification or explanation for carrying out a paper review and the August 2023 formal grievances were not heard without delay or at all. The outcome letter wrongly described itself as a “grievance appeal outcome,” further confirming it was “careless and perfunctory” and asserts that the process was a sham, motivated by the claimant’s protected acts and constituting victimisation under s.27 Equality Act 2010. Knowledge

[596]The claimant in her submissions does not set out why she says Ms Thorpe had actual knowledge of her disability. She also does not engage with this issue in respect of Mr Ing, Mr Spencer and Ms Chandarana who she refers to in further submissions.

[597]The issue of actual knowledge is in dispute.

[598]However, the Tribunal finds that Mr Ing, Ms Chandarana and Mr Spencer, having access to information about the claimant having been diagnosed with Long Covid and her complaints of tiredness such that she was allowed to work from home since 2020, these individuals had sufficient knowledge that her symptoms of Long Covid were long term and likely to be more than trivial. In terms of Ms Thorpe the claimant asked her about her knowledge of her condition and Ms Thorpe in cross examination accepted that she had been her 2022 grievance and the outcome [page 533 – 534], the grievance against Ms Farish [page 669 – 670] and of course her August grievances. The Tribunal conclude that there Ms Thorpe was in receipt of information to show that the claimant had Long Covid over a year before her August 2023 grievance, that she still had it and she specifically in her 1 August 2023 grievance, referred to a symptom being ‘chronic fatigue’.

[599]The Tribunal conclude that Ms Thorpe had the necessary knowledge of the relevant elements of disability for the purposes of section 6 Equality Act 2010, that she had an impairment which was likely to be long term and had a more than trivial affect on her normal day to day activities (i.e. fatigue), whether or not Ms Thorpe identified it as a disability in legal terms, which was her evidence in response to questions from the Tribunal; “I don’t believe it came into my mind.”

[600]Despite it being made clear that the claimant needed to put the allegations to the relevant witnesses, the claimant did not put it to Ms Thorpe that she had acted as she did because of her disability, (or indeed that there was any reason to believe anyone had). Comparator

[601]The claimant compares her treatment to how the respondent dealt with Jesseca Spencer’s allegations on 25 May 2023 about the claimant. The claimant also complains that she had raised allegations about her own managers conduct on 01 August 2023 and previously on 24 February 2022, which were not handled in the same way Ms Spencer’s allegations were dealt with. However, a comparison to the way the 2022 grievance was dealt with was not the agreed comparison for the purposes of the claim as set out in the LOI.

[602]There are significant and material differences between the claimant’s August 2023 grievances and the complaints which Ms Spencer and Mr Bridge raised about the claimant.

[603]Ms Spencer and Mr Bridge presented evidence of offensive messages/song lyrics sent to them by their manager, the claimant, as a result of an apparent crossing of professional boundaries, in circumstances where the claimant was angry at them both for a discussion they had at work about their view of her behaviour toward Ms Farish. The evidence of misconduct was strong and recorded in contemporaneous documents. The messages were objectively offensive, sent to junior reports and were sent from the claimant’s own mobile telephone in the early hours of the morning. Both her reports were upset by it and did not want to continue working with her.

[604]The claimant does not allege that Ms Spencer and Mr Bridge complained about her because she was disabled (but because they believed she had sent the anonymous Aj Vlad emails).

[605]Putting aside the issue of whether she could be allocated to some project work, suspension was manifestly reasonable. Such conduct was obviously very serious and there was documented proof of it.

[606]In 2022 the claimant was complaining of an excessive workload, which is very different in nature from the accusation about the claimant. The grievance she raised in 2022 was investigated and she appears to have been content to continue working with Ms Farish but in any event this is not the comparison relied upon in her claim.

[607]The grievances raised in August 2023 were also materially different in terms of the nature of the allegations and the evidence supporting them. The claimant was on suspension awaiting a hearing which may well result in her dismissal and not in contact with her managers against whom she was raising issues which in respect of some events back many months. In terms of Mr Bridge and Ms Spencer, her allegations about the relevance of their suspicions about her involvement in the anonymous emails and that they wanted her to be dismissed, could be considered at the disciplinary stage albeit that was not what she was being investigated for.

[608]The Tribunal conclude that there were materially different circumstances between the complaints the claimant was making in August 2023 and those made by Ms Spencer and Mr Bridge and the surrounding circumstances. Conduct

[609]The 1, 2 and 18 August grievances were dealt with on the papers. The Tribunal’s own note of the evidence is that in response to a question it put, Ms Thorpe gave evidence that she is not aware of another employee’s grievance being dealt with after they have left the respondent’s employment. To that extent the Tribunal accept that the claimant was given more favourable treatment after she had left. The grievance policy only applies to employees and does not state that grievances will be dealt with in respect of those who have left the respondent’s employment and Ms Thorpe gave further evidence that to her mind, given the claimant was no longer employed, it made sense to dealt with it on the papers. The claimant does not allege that Ms Thorpe played a role in the decision to suspend her or any role in the decision about how to deal with the complaints raised by Ms Spencer and Mr Bridge. The claimant does not allege that Mr Ing played any role in the decision to suspend her either. There were therefore’ different’ individuals involved in the decision around her suspension, and how her grievances would be dealt with.

[610]The claimant points to no evidence of discrimination, other than a difference in treatment (albeit materially different circumstances apply) and the fact of her disability.

[611]The grievance policy [page 617] states at para 2: “This policy applies to all permanent and fixed term colleagues of [the respondent]”.

[612]It was not put to Ms Thorpe by the claimant that the reason why her grievances were dealt with on the papers was because of anything to do with her disability.

[613]It was also unclear when the claimant was giving her evidence which complaints/grievances she was relying upon. In her oral evidence, in cross examination ,she gave evidence that the “false allegations” she was relying upon and/or the grievances she was raising about Ms Spencer and Mr Bridge, which she claims were not addressed, was that she had sent the anonymous messages via the Aj Vlad email account and the 17 May 2023 messages were not from a private WhatsApp group . However, whether she sent the messages in her capacity as manager was a point of dispute that would need to be considered at the disciplinary hearing and the respondent was not investigating the Aj Vlad emails (albeit clearly Ms Spencer and Mr Bridge, it seems with some basis for thinking it, suspected the claimant was behind those emails and thus hoped that she would be dismissed but did not make false accusations, merely an accusation the claimant alleges to be false).

[614]Prior to 1 August 2023 the claimant had not raised any grievances/ complaints about Ms Spencer and Mr Bridges, and it was only after the claimant became aware that her suspension was going to continue did she then raise complaints about them.

[615]The relevant factual nexus is that the claimant appears to have retaliated to the charge of gross misconduct (of which there was strong documented evidence), with various grievances which she wanted to be dealt with promptly while staying the disciplinary hearing, albeit her grievances did not detract from the offences for which she was charged.

[616]Whether the claimant had sent the WhatsApp messages as a manager was a point to be investigated and considered on the evidence. Whether she has sent the anonymous emails was unclear but there were grounds to be suspicious, (not least given the claimant’s failure to report those promptly). What was clear is that offensive song lyrics were sent from the claimant ‘s phone to her direct reports. The claimant was suspended for a disciplinary investigation to be carried out; it was not a response simply to a grievance but the evidence that misconduct had in fact been committed. The allegations and circumstances are simply not comparable. The claimant was keen to stress initially that she was supportive of Mr Bridges and Ms Spencer, that changed when her suspension was not lifted.

[617]Further, the claimant was on suspension and thus there was no contact with her reports in the workplace. There was no need to suspend her direct reports because of allegations she had made about them. In terms of allegations she now raised against her managers, there was not the same urgency to address those given the claimant was on suspension pending a disciplinary hearing for gross misconduct, and the complaints included historic complaints from months before and complaints around management failings, was not conduct of the type the claimant was facing. The claimant’s attempts to draw parallels is not reasonable.

[618]The Tribunal accept the respondent’s submission that the issues the claimant was raising as “grievances” against Mr Bridge and Ms Spencer would in fact more aptly constitute the claimant’s defence to the disciplinary allegations.

[619]The respondent also submits that, Ms Spencer and Mr Bridge raised their concerns on 25 May 2023 and, due to various matters arising in the process, it was not possible to conclude this process even 4 months later. If anything, the respondent contends that the claimant was treated more favourably than they were.

[620]In comparing the two processes, the claimant grievances on 14 and 15 June 2023 were concluded by 10 July 2023, 25 days later. The claimant’s grievance appeal took place on 17 July 2023; the claimant had been given dates to select. The process concluded by 18 August 2023. The claimant next set of grievances on 1, 2 and 18 August 2023, were concluded by 25 October 2023.

[621]Ms McCarthy also explained that any delays in progressing the claimant’s grievances were hampered by a multitude of issues, which were not comparable to Ms Spencer’s and Mr Bridge’s circumstances. The claimant raised grievances about a significant number of people involved in the disciplinary or grievances processes. The Tribunal accept the respondent’s submission that it is a reasonable explanation that the farreaching complaints, along with lengthy and verbose communications from the claimant would result in delays, (which given the claimant was searching for alternative employment may well have been the intention).

[622]In terms of the delay in dealing with her August grievances, the claimant was on sick leave until 16 August and not long thereafter resigned. There was then some discussion later in August about possible resolution and when this did not transpire, the outstanding grievances were dealt with. The Tribunal accept that Ms Thorpe’s review was not sufficiently thorough but consider that it is more likely than not it was handled the way it was, and given the attention it was, because of the surrounding circumstances i.e. claimant had been subject to serious charges of gross misconduct, had resigned and later would leave the respondent’s employment. The claimant did not put it to Ms Thorpe that had the circumstances been the same but she had not been disabled, Ms Thorpe would have acted any differently or she believed her instructions from Mr Ing would have been any different. Because of the claimant’s disability

[623]The claimant never put it to Ms Thorpe that the way she dealt with the August grievance was because of her disability. In her second set of submissions the claimant appears to refocus her attention on Mr Ing however Mr Ing is not shown to have had any involvement in the decision to suspend the claimant and it was Ms Thorpe who determined her August grievances.

[624]In terms of any adverse inference to be drawn from Mr Ing not attending, the claimant did not in her claim or list of issues, make it clear that it was Mr Ing she was accusing of direct discrimination and the Tribunal does not consider it reasonable to draw any adverse inferences from his non-attendance at the hearing as set out above.

[625]The claimant has not been clear in how she has put this claim who she alleges committed direct discrimination, in any event the Tribunal do not find that there is evidence that suggests there could have been discrimination. This is a case where the claimant was raising numerous grievances in circumstances where she was facing offences of gross misconduct and awaiting a disciplinary hearing, was pursuing an appeal the outcome which was not given until 18 August and a few days later she resigned. The claimant was the Tribunal consider, doing her best to deflect from the charges she was facing and managed successfully to delay the disciplinary proceedings until she secured another job.

[626]Even if there are grounds from which some inference may be drawn because of an absence of explanation for the instructions to Ms Thorpe as set out in the findings of fact and her deficient handling of the August grievances, given the complex factual nexus, the Tribunal do not find that it is sufficient to reverse the burden of proof but in any event are fully convinced that the impugned treatment was in no sense whatsoever because of the protected characteristic.

[627]The Tribunal find that the comparators are not suitable actual comparators, there is in any event sound reasons for treating the situations differently and there is nothing to support an allegation that Ms Thorpe or Mr Ing, Mr Spencer or Ms Chandarana, acted as they did for a reason relating to the claimant’s disability (rather than because for example she was leaving and would later leave, the respondent’s employment).

[628]The claim is not well founded and dismissed. Indirect discrimination (s.19 EqA 2010) PCP 1: Providing a minimum of 3 days' notice for disciplinary hearings and the review of the disciplinary packs of documents/inadequate notice to prepare for hearings

[629]The claimant also relies on this allegation as the PCP for her failure to make reasonable adjustments claim, a detriment for her victimisation claim 9.3.2, 9.3.7, constructive unfair dismissal 3.1.1, 3.3.4 and harassment related disability 8.1.2. What is the PCP around notice of disciplinary hearings?

[630]The respondent’s disciplinary policy provides: “Hearings: At all formal stages of this process an outline of the allegation will be provided in writing, including the possibility of dismissal, with a minimum of 3 days’ notice of a hearing.” [page 632]

[631]The Policy does not state that the minimum is working’ days.

[632]The Disciplinary Guidance document states that its purpose is that it: “…details how we manage disciplinary issues…and offers you more in-depth information on both the informal and formal disciplinary process.” [page 637]

[633]It goes on to provide that before the disciplinary hearing the respondent will write to the employee: “at least 3 working days’ notice of a formal disciplinary hearing.” [page 640]. Tribunal stress

[634]The Tribunal consider that the Guidance Document is to be interpreted as clarifying the application of the policy and it does provide for working days.

[635]The Tribunal accept that the minimum 3 working days’ notice, being in the Guidance, in theory applies to all employees, not just those with the claimant’s protected characteristic.

[636]However, as the respondent correctly submits, the pleaded claim is a minimum of 3 days’ notice, the claimant when cross examining Ms Cornthwaite complained that she was not given 3 working days’ notice, but that is not the pleaded PCP. The actual PCP is more generous than the pleaded PCP i.e. it is 3 working days’ notice. Therefore, the pleaded PCP has not been made out.

[637]In any event, despite not establishing the pleaded PCP, the claimant appears to complain that by not having more than a minimum of 3 days’ notice creates a group disadvantage (and subjected the claimant to that particular disadvantage). However, it seems in practice, when considering the claimant’s position, the respondent did not in practice give only 3 days-notice and the respondent’s evidence, is that it would provide more time if requested. In practice it appears to the Tribunal that the PCP is a minimum with flexibility to provide more time.

[638]The Grievance Guidance Dcocumet [page 625] provides that “ we will write to you with at least three working days’ notice of a formal grievance hearing.”

[639]The claimant pleads the particular disadvantage as; Insufficient for the Claimant to review the disciplinary pack and prepare for the disciplinary hearing, along with preparation for the grievance hearing, exacerbating her long-COVID symptoms, creating a substantial disadvantage and hindering the Claimant’s ability to effectively participate in the proceedings.;

[640]The respondent invites the Tribunal to find that claimant has advanced no information, statistical or otherwise in furtherance of any group disadvantage relied upon and fails to satisfy the requisite limb of the legal test and that the claimant’s difficulty appears to have been as a result of her having prepared lengthy documents, which fail to focus on the allegations against her but are discursive and prolix and include material which appears to be salacious and not helpful to her case. That appears to be peculiar to the claimant and the Tribunal do not find on the evidence that the claimant has shown that those who have Long Covid and more particularly given the nature of the condition is so varied, the symptoms the claimant has established, would find it difficult in 3 days to consider evidence and respond to it.

[641]The Tribunal take into account that the ways in which a disabled person is likely to be disadvantaged by a PCP are dependent not simply on the nature of the relevant disability but on the specific ways that that disability impacts on the individual personally. Those who have the same disability do not necessarily constitute a homogeneous class and in the claimant’s case, her condition is particularly problematic because Long Covid can present as a collection of varying types of ailments with according to her own evidence, ‘flare’ up and therefore is ‘unstable’ and unpredictable in that sense. However, if focussing on the symptoms rather than the cause, the claimant’s complains of the impact on her of having to deal with meetings at short notice namely the stress caused a ‘crash’ i.e. symptoms of pain, fatigue, insomnia, nose bleeds, impaired cognitive functioning. The Tribunal however have found that her only symptom related to tiredness and that Long Covid combined with the environmental stress may have caused a degree of increased tiredness however, the documents the claimant produced were extremely lengthy at times and contained excessive detail.

[642]The claimant did not produce any statistical evidence about the impact of limited time to prepare for a hearing on others with Long Covid or produce any expert evidence to assist the Tribunal.

[643]The Tribunal consider that it is appropriate to construct a group of actual or hypothetical people whose experience of Long Covid is the same sort of the symptoms as the claimant’s rather than compare simply all those with Long Covid because the condition is so varied in terms of symptoms and effects.

[644]The shared group would be someone who suffers significant fatigue from climbing stairs and greater fatigue from stressful events.

[645]The Tribunal find that the claimant herself did effectively participate in the meetings which she attended remotely. The Tribunal do not find that she was ‘hindered’. In her ability to effectively participate. The claimant has not identified what else she would have said or done but for the impact of any additional tiredness she experienced as a result of working long hours on the documents she produced.

[646]The Tribunal also have regard to the fact that the respondent’s practice was not to rigidly apply the minimum notice, but it allowed flexibility as part of its practice. The claimant would have appreciated (as would her union representative) that the notice was a ‘minimum’. The claimant was keen to progress the grievance appeal and thus she set herself the deadline to complete this document and chose to include unnecessary details. That was her choice and unique to her. If it caused her additional fatigue it is because she chose not to reasonably modify her behaviour. Did the PCP puts, or would put, B at that disadvantage

[647]The Tribunal take into account that the claimant was well able to raise concerns and grievances and at no stage did she, (with her trade union background or her experienced trade union representative), request for further time to prepare for any of the meetings/hearings.

[648]The claimant chose to produce lengthy and verbose documents particularly for the grievance appeal in which she chose to reveal salacious and very private details including intimate details about the personal relationship between Mr Bridge and his partner which it was wholly unnecessary. In any event she did not request more time but then complained creating such a document caused her fatigue. That is not reasonable behaviour. The claimant could have taken reasonable steps to prevent any alleged disadvantage but chose not to do so.

[649]The claimant had been given 5 working days’ notice and 7 calendar days’ notice of the grievance appeal hearing [page 271]

[650]The claimant was provided with 3 working days’ notice of the proposed disciplinary hearing due to take place on 7 August 2023 at [P310-1]. It is not in dispute that this disciplinary however was postponed and was not going to be take place before 29 August 2023 and therefore the claimant was going to have no less than 9 working days and 13 calendar days to review all of the relevant evidence. The claimant did not provide her dates of availability and the hearing never took place.

[651]The Tribunal conclude that the pleaded PCP of not less than 3 days’ notice (calendar days) , was not applied to the claimant but in any event, the claimant has not established group disadvantage or that she was disadvantaged as pleaded or that the disadvantage was because of the application of the respondent’s policy. The Tribunal do not find that she was hindered in her preparation or the PCP was the cause of her fatigue. Was it a proportionate means of achieving a legitimate aim?

[652]The Equality and Human Rights Commission’s Code of Practice on Employment (‘the EHRC Employment Code’) contains guidance on objective justification in the context of indirect discrimination and in summary the aim pursued should be legal, should not be discriminatory in itself, and must represent a real, objective consideration: para 4.28.

[653]The aims pleaded are legitimate in terms of 6.6.1 and 6.6.2. Applying a reasonable time constraint is legitimate for those reasons. The policy merely sets a minimum and the Tribunal accept that the respondent would provide longer if required. The claimant in fact suffered no disadvantage and the timescales which were applied were a proportionate means of achieving those aims.

[654]The Tribunal is also satisfied on the facts that the provision, criterion or practice (PCP) was not applied with the intention of discriminating against the complainant. PCP 2: Requiring employees to attend disciplinary and grievance hearings in person via video link in relation to the disciplinary and grievance processes, rather than conduct them in writing

[655]The claimant also relies on this allegation as the PCP for her failure to make reasonable adjustments claim, a detriment for her victimisation claim 9.3.2-9.3.3, and harassment related to disability, 8.1.1 and potentially 8.1.2. Did the employer apply or would apply the PCP to persons with whom the claimant does not share the relevant protected characteristic?

[656]The respondent’s normal practice the Tribunal conclude is to conduct disciplinary and grievance meetings in person. The Disciplinary Guidance Document [page 640-641] refers to the employee making “all reasonable efforts” to attend however, it also provides that they can provide a written statement outlining their case if they “chose not to attend.” The claimant does not identify whether it is a practice, policy or condition, however the respondent takes no issue with the lack of clarification.

[657]The Grievance Guidance Document [page 624] refers to making “every effort” to attend the meeting. The wording is stricter than the Disciplinary Guidance and provides that it will be heard in the person’s absence if they do not attend but does provide that the person should include any supporting documentation.

[658]The Tribunal accept that there was a PCP to make all reasonable efforts or every effort to attend the disciplinary and grievance meetings which applied to those without the claimant’s disability within the pool (i.e. those issuing a grievance or subject to disciplinary proceedings). However, the claimant’s definition is not what is set out in the policy, i.e. as she pleads it as a PCP which does not permit grievance or disciplinary’s to be conducted in writing however, there is flexibility within the Guidance Document (which she does not dispute would be applied if requested) for written submissions to be given and considered and for the process to continue without attendance.

[659]The Tribunal find that the claimant has not identified accurately the PCP, there is a requirement for employees to make every reasonable effort in the case of disciplinary proceedings or every effort in the case of grievance hearings, but it is not an absolute as pleaded.

[660]The pleaded particular disadvantage is: In respect of the PCP set out at 6.1.2, attending hearings in person or via video link exacerbates long-COVID symptoms and hinders an individual's ability to effectively participate in the proceedings. Communicating verbally does not give sufficient time for the Claimant to comprehend and respond effectively, which exacerbates her disability-related disadvantages. The additional stress of travelling and attending in-person meeting further exacerbated her long-COVID symptoms. Tribunal stress

[661]There is no expert evidence, or statistical evidence or evidence from other witnesses, that others with the claimant’s condition (Long Covid) and more particularly her specific type of long Covid/specific symptoms, were or would be put to the pleaded disadvantage by remote attendance or travelling to attend in person.

[662]The claimant has not established that others with the same symptoms of Long Covid condition, would suffer the pleaded disadvantage. A disciplinary or grievance process is stressful, the claimant has not established that conducting it in writing and having to produce documentation and respond to evidence or allegations or clarify a position in writing is less stressful than a discussion whether in person or via video link. Whether it is more stressful It would no doubt depend on how the meeting is managed and the support the person has from a companion in that process. There is no medical evidence to support her assertion that managing the process through correspondence would be less stressful for her or those with the same condition/symptoms. In her grievance of the 2 August 2023, it is only the disciplinary which she alleges would put her to a disadvantage if conducted in person.

[663]The Tribunal is not persuaded that her involvement caused her more stress than it would were she to respond in writing, or that she herself considered this to be genuinely the case. Her actions do not support that belief, regardless of Ms McCarthy accepting in cross examination observation that Long Covid ‘may’ mean it ‘bites harder’. The impact would depend on what type of Long Covid. Symptoms the person has. The claimant in her oral submissions accepts that while the symptoms of Long Covid generally are commonly known; “ it depends on the individual if the condition amounts to a disability and whether they will struggle and be disadvantaged in grave matters such as disciplinary and grievance matters.” Did the PCP puts, or would put, B at that disadvantage

[664]The claimant requested meetings to be conducted virtually only after the first investigation meeting on 7 June 2023 and this was accommodated.

[665]The claimant attended the meetings on 16 June and on 3 August remotely by Teams.

[666]The Tribunal note that when the claimant had attended work on 22 July 2021 she had not complained of fatigue caused by travelling, she complained only of the fatigue of walking upstairs and does not allege that when she went into work for the meeting on 7 June, she was required to walk upstairs and did not complain in this meeting at the time that the journey was tiring or caused her more stress.

[667]Before the 2 August 2023 the claimant was not on sick leave and (as above) the Tribunal find only that from around August 2023 (which is supported by her report to her GP in October 2024) the claimant is likely to have found the process increasingly stressful however there is no evidence that she suffered from any loss of memory or concentration was difficult. While the sickness certificate says Long Covid, it does not identify what the symptoms are prior to or at that time but does identify stress. The evidence does not support her contention that prior to this she was suffering with ‘brain fog’. This is also supported by the fact that the claimant did not request any adjustments for the 7 June 2023 meeting which she agreed to attend in person [page 136]. At that stage she may no doubt have been optimistic that the suspension would be overturned.

[668]The claimant has experience as a union representative. She is an intelligent individual who also had the benefit of experienced union representation. If she felt her health required adjustments, the Tribunal conclude that she would have asked for them.

[669]On 6 July 2023 the claimant requested that communications were in writing but she did not say that this had anything to do with her health but because she was not happy with the accuracy of the note taking by the respondent, [page 221]: “In order to observe the natural justice, it is in both parties in interests to have true and accurate notes on any meetings in relation to his serious matter (s). As such I am requesting any and all communication going forward is done in writing via email only.”

[670]The Tribunal accept the respondent’s submission that the respondent could not have known or reasonably be inferred from this message that the claimant was seeking as an adjustment due to Long Covid and the Tribunal find that the claimant has not established that she did require this adjustment, and that she was at this stage experiencing a substantial disadvantage in attending a hearing remotely or in person.

[671]When the claimant asked for meetings to be conducted virtually after the first investigation meeting on 7 June 2023, the respondent accommodated this.

[672]For the grievance appeal meeting with Mr Martin the claimant asked in an email to conduct the grievance appeal in writing however, as set out in the findings of fact, the claimant was content to attend remotely by Teams. She attended with her union representative and neither she nor her representative raised any objection, they did not request an adjournment or any breaks during the hearing.

[673]The claimant does not report to her GP any increased blood pressure as a result of this meeting and the Tribunal do not accept on the evidence that she suffered this symptom relating to her Long Covid at this meeting. While she mentioned it, she did not request a break or report this to her GP afterwards and the Tribunal do not accept that she has established that this was a genuine symptom she experienced. The Tribunal was not convinced by her oral evidence on this point.

[674]The claimant attended the meeting with her Union representative and the Tribunal find that she has not established that she suffered the pleaded disadvantage (or any significant disadvantage) by doing so but further, had she had any objection, the Tribunal find that she would have insisted on the process being conducted in writing.

[675]Mr Martin gave evidence which the Tribunal accept, that if the claimant had not wanted to attend, he would have considered changing the format of the meeting and that this is something he had accommodated in previous hearings. This is reflected in the contemporaneous documentation [page 271].

[676]Mr Martin provided the claimant with details of his written questions in advance, [page 290-1]. The claimant could have chosen to make some key points in response and used this as a prompt if she chose to attend the hearing.

[677]In terms of the disciplinary hearing, the claimant was invited to forward any documentary evidence in anticipation of the disciplinary hearing, [page 311] and in cross examination conceded that she did not supply, or prepare, any information as part of the disciplinary process.

[678]Ms Cornthwaite gave evidence that she would have considered conducting the disciplinary in writing if the request had been made and as the respondent correctly points out, the claimant conceded that she had read the Disciplinary Policy and Guidance “intently” and on multiple occasions since June 2023 and accepted that she was aware of the provision offering an employee the option to present a written statement rather than attend a meeting in person.

[679]Neither the claimant, nor her trade union submitted a written statement, in place of attending any meetings with the respondent.

[680]The claimant raised a further grievance and those grievances of 1, 2 and 18 August 2023 were dealt with on the papers.

[681]The respondent further invites the Tribunal to draw inference from the fact that on the one hand the claimant suggests she was cognitively impaired yet on the other hand produced a 23 page document in response to 14 questions, and submitted lengthy and detailed grievances over a 3 month period and has then sought to claim “TOIL” for overtime worked in producing these documents. The respondent contends that these two arguments cannot coincide, or certainly not in the manner advanced by the claimant and the Tribunal considers that looking at the claimant’s conduct and what she produced for the hearings, that argument is compelling on the facts and evidence heard.

[682]The Tribunal do not find that the claimant has established on the evidence that she was suffering from ‘brain fog’ or cognitive impairment when she attended meetings in person or remotely in June, July and early August. It is noted by the Tribunal that while claiming now to have been cognitively impaired and disadvantaged by attending in person a Teams meeting, she was a few days after the 3 August 2023 appeal meeting, attending job interviews on Teams.

[683]The Tribunal also take into account the content of the claimant’s own recording of this meeting where she describes how she wanted notice of the questions in advance so she could set something out in writing not to avoid a meeting but to make the meetings ‘smoother’ [page 406].

[684]The Tribunal accept the respondent’s submission that the first time the claimant appears to suggest that she was incapable of engaging in video link hearings, because of her diminished cognitive function, was in her fourth grievance of 2 August 2023 and that ‘it is remarkable’ that she had never previously had those challenges. she was able to commence a full-time job with weekly travel to London, only 5 days after the claimant’s employment terminated with the respondent.

[685]The Tribunal find that the claimant was not disadvantaged as she alleges at the material time.

[686]The respondent asserts that cynically the claimant appears to have only encountered this challenge at the point at which she is aware that the matter is to progress to a disciplinary hearing and is invited to attend a disciplinary hearing which could result in the termination of her employment. The Tribunal is invited to find that this is more than coincidental and was in fact a tactical move and the Tribunal accept that submission.

[687]On balance the Tribunal is not persuaded that the claimant was disadvantaged at the time of the meetings as she suggests. The Tribunal also consider that it was reasonable for the claimant to modify her behaviour if she was feeling additional fatigue, in not working excessive hours producing large amounts of prolix documentation.

[688]The burden of showing individual disadvantage is on the claimant (section 136 Equality Act 2010), and the Tribunal conclude that the claimant has not established on the facts and that the claimant was put at the particular disadvantage and does not find her oral evidence on this compelling nor is it supported by the medical evidence. Objective Justification

[689]The Tribunal find that the pleaded legitimate aim to allow hearing managers to conduct a fair and thorough hearing including the ability to ask follow-up questions, observe demeaner and body language, and to provide employees with a meaningful opportunity to present their grievance/ respond to disciplinary allegations directly and engage in dialogue with decision makers, to ensure that the process is thorough and fair, is a legitimate aim.

[690]In terms of proportionality, the Tribunal do not find that the claimant was disadvantaged as pleaded in any event and even if she found it tiring to attend, the Tribunal do not find that it impaired her ability to effectively and fully participate, taking into account the record of those meetings. Weighing up the benefit of attendance against the actual disadvantage to the claimant, the Tribunal concludes that in the circumstances the disadvantage to the respondent of trying to conduct those processes only in writing, would outweigh any actual advantage to the claimant, not least given the claimant’s tendency to include irrelevant information and fail to focus on what is relevant. Had the claimant genuinely not been able to effectively participate otherwise than in writing, the Tribunal is likely to have concluded that the means would not justify the pleaded aims.

[691]The Tribunal is satisfied that the provision, criterion or practice (PCP) was not applied with the intention of discriminating against the complainant.

[692]This claim is not well founded. PCP 3: Not accommodating periods of sickness absence related to disability when conducting disciplinary and grievance processes.

[693]The claimant also relies on this allegation as the PCP for her failure to make reasonable adjustments claim and harassment related to disability 8.1.4-8.1.5. Did the employer apply or would apply the PCP to persons with whom the claimant does not share the relevant protected characteristic: section 19 (2)(a)

[694]The claimant’s complaint is essentially that she was required to participate in the disciplinary and grievance processes while on certified sickness absence.

[695]The Tribunal find that the policy of the respondent was to proceed with disciplinary and grievance proceedings while someone was on sick leave unless they considered not fit enough to participate, taking the view that not being fit to work does not mean an employee is not fit enough to take part in a hearing.

[696]The Disciplinary Guidance document deals with this at para 7 [ P 644]: “We recognise that there may be cases where you are signed off work during the process. We feel that it is usually best to continue with the formal process in order to resolve the issues as quickly as possible. We feel that it is usually best to continue with the formal process in order to resolve the issues as quickly as possible, especially if any stress or anxiety is related to the issues being investigated or to the process itself. If you are signed off work, we will usually seek medical advice from our occupational Health Services on how best to continue with the process…If the occupational health advice is that you are not well enough to take a full part in the full process , we will usually continue with the process but consider taking any of the measures set out below to enable you to participate effectively:• Postponing the formal hearing for a specific length of time

• Change of venue for the hearing that is suitable for your needs

• Arranging for you take part in the hearing via a conference call

• Provision of written statements from you setting out your case.”

[697]A very similar provision is set out in the Grievance Guidance document [page 629].

[698]The Tribunal find that the pleaded PCP is not made out. The respondent’s Guidance document makes it clear that accommodations are made for periods of sickness, and that may include postponing the hearing where the sickness, (whether it relates to a disability or not), means the person cannot take part in the full process.

[699]The claimant’s case is based on the premise that this requirement is applied in circumstances where the employee’s participation would exacerbate an illness and where this makes it extremely difficult to effectively participate. The Tribunal do not find that there was such a PCP in place of not accommodating periods of sickness absence in those circumstances.

[700]The claimant pleads that the particular disadvantage is that: ‘Without the input of occupational health to identify necessary reasonable adjustments, the Claimant is left to navigate the process alone, which exacerbates her disability-related challenges. Participating in the disciplinary and grievance processes while on certified sickness absence compelled the Claimant to work excessively long hours, often until late evening, without adequate rest or recovery. This added extreme difficulty to the Claimant’s effective participation in the proceedings and severely exacerbated her long-COVID symptoms and disability-related disadvantages, resulting in a significant deterioration in her health.’ Tribunal stress

[701]The claimant has not produced any evidence whether medical or otherwise, and nor did she address this in her cross examination of the respondent witnesses, that the pleaded PCP would put those with the same condition or same Long Covid symptoms as the claimant at the pleaded disadvantage as compared with others who are also signed off work sick but without her particular type of condition/symptoms or who are not disabled.

[702]The Tribunal do not consider, given how nuanced this particular medical condition is, and the paucity of medical evidence about the claimant’s own condition and symptoms, that it can take judicial notice that this is more likely than not.

[703]The claimant has also not presented evidence of group disadvantage.

[704]Further, the Tribunal find that the respondent’s policy is to consider health concerns and make adjustments for them. While the claimant alleges that this was not done for her, the claimant does not assert that this is the respondent’s normal practice or advance evidence of other cases where the Guidance was not applied.

Judge Eady QC in H Fox (father of G Fox, deceased) v British Airways plc EAT 0315/14:

[705]‘Certainly it is hard to see how an individual dismissal could, of itself, be a policy or a criterion (although it may certainly result from either). As for whether it could be a practice, I would approach this term in the same way as did the EAT in Nottingham City Transport Ltd v Harvey; that is, as suggesting some degree of repetition. An individual dismissal might certainly result from the application of a particular practice but it is hard to see how it could be a practice as such’.

[706]The ECHR Employment Code however at para 4.5, states that a PCP can arise from a one-off or discretionary decision. 707. :This conclusion was not undermined by the fact that, as a one-off discretionary decision, the same provision had not in fact been applied to anyone else. The EAT considered it significant that what is now S.19(2)(a) EqA refers to a PCP that the employer ‘applies, or would apply’ to persons who do not share the claimant’s relevant protected characteristic (our stress).

[708]EAT in Gan Menachem Hendon Ltd v De Groen

2019 ICR 1023

, EAT, the EAT noted that, for a PCP to emerge from evidence of what happened on a single occasion, ‘there must either be direct evidence that what happened was indicative of a practice of more general application, or some evidence from which the existence of such a practice can be inferred’.

[709]While there is evidence that on a previous occasion an OH report was not obtained to consider reasonable adjustments following the recommendations which came out of the claimant’s grievance filed in February 2022, that was not in the context of the application of the grievance and disciplinary policy and attendance at meeting or participation on those proceedings.

[710]There was no direct evidence that the approach taken in respect of the claimant was not based solely on her individual circumstances in circumstances where her GP Fit note made no mention of the need for adjustments and the claimant willingly attended the hearing on 3 August .There is insufficient evidence to allow an inference to be drawn of group disadvantage .

[711]The Court of Appeal addressed this issue in the context of reasonable adjustments under S.20 EqA in Ishola v Transport for London

2020 ICR 1204

, CA. The Court of Appeal held that words ‘provision’, ‘criterion’ and ‘practice’ all carry the connotation of a state of affairs indicating how the employer generally treats similar cases or how it would deal with a similar case if it occurred again. The Court also pointed out that a PCP must be capable of being applied to others. Thus, although a one-off decision or act can be a practice, it is not necessarily one, and not every act of unfair treatment of a particular employee can be formulated as a PCP. On the facts of the case, the Court upheld the employment tribunal’s decision that the employer’s insistence on a disabled employee returning to work despite his outstanding grievances was not a practice for the purposes of a reasonable adjustments claim.

[712]This Tribunal find that there is no evidence or finding of an expectation or assumption that periods of sickness absence related to disability will not be accommodated when conducting disciplinary or grievance processes. Did PCP put, or would put, B at that disadvantage: section 19 (2)(c)

[713]The claimant was not on a period of sickness absence when she was invited to attend the disciplinary and grievance processes, she was on suspension but had not been certified as on sick leave.

[714]The claimant was not signed off with a Fit note until 2 August 2023, which the Tribunal accept appears to have been received, are at least actioned, after the Grievance Appeal Hearing on 3 August 2023 [page 417].

[715]The claimant attended the Grievance Appeal Hearing on 3 August 2023, however for the reasons set out above, the Tribunal do not find that she was disadvantaged as alleged by attending.

[716]The claimant’s own GP Fit note did not indicate that the claimant would be unable to participate in a hearing and she never alleged otherwise in her email of the 3 or 7 August to Ms Cornthwaite. She was prepared to participate in the meeting with Mr Martin on 3 August. Indeed, at the meeting on 3 August with Mr Martin, (when she was accompanied by a very experienced representative), she was clearly keen to complete the process as soon as possible and wrote afterwards complaining of delay in completing it. The notes show that the claimant was able to participate and did so, did not ask for any adjustments other than breaks (which in the event she did not require).

[717]The disciplinary hearing was postponed on 3 August 2023 and never took place. The claimant does not allege that she undertook any preparation for that hearing and certainly not after her sick note was sent to the respondent.

[718]The claimant prepared her response to the questions of the grievance appeal on 1 August 2023 [page 290]. She did not attend her GP until 2 August and was then signed of sick. The long hours she spent preparing these documents therefore predate her sickness absence when she was still on suspension.

[719]The Tribunal do not find that the claimant working long hours to produce the document on 1 August caused her ‘extreme difficulty’, in terms of her effective participation at the meeting on 3 August. Neither she or her representative stated that she was having such difficulty, requested an adjournment or another hearing and there is no medical evidence to support this. If she found it difficult, she did not want to delay the resolution and was keen to conclude the proceedings as quickly as possible.

[720]The Tribunal do not find that the pleaded PCP put the claimant at the pleaded

[721]The claimant accepted in cross examination that after putting in her sick note she did not request that communication with her cease or identify what “correspondence” should not have sent after 2 August 2023. The claimant chose to submit further grievances and filed documents in support and she could have requested further time to present further documents.

[722]The Tribunal accept the respondent’s submission that its approach to communicating with the claimant, whilst signed off sick, struck the correct balance between permitting the claimant time to recuperate, whilst offering updates and engagement to advise that the processes would be resumed in due course. Justification

[723]The respondent submits that the steps it took were a proportionate means of achieving a legitimate aim, namely the need to enable reasonable scheduling of hearings within a reasonably prompt timescale in line with the ACAS Code of Practice whilst still giving employees and their companion reasonable time to prepare; and to ensure that disciplinary and grievance matters are resolved within reasonable timeframes in line with the ACAS Code of Practice to protect employees from the stress and anxiety of long disciplinary/ grievance processes, to prevent deterioration of workplace relationships and the degradation of evidence over time.

[724]The Tribunal find that if the claimant was unfit to take part due to ill health, it would not have been proportionate to compel her attendance at meetings and that it would have been reasonable to obtain advice from her doctor or OH about adjustments to the process. It was not the evidence of the respondent witnesses that more time could not have been given however the Tribunal do not find that the claimant was disadvantaged as pleaded. In any event, the previous parts of the test have not been made out.

[725]The claim is not well founded and is dismissed. Failure to make reasonable adjustments

[726]The claimant relies on the same purported PCPs as above for the claims brought under section 20/21 Equality Act 2010. Knowledge

[727]Schedule 8 para 20 of the Equality Act 2010 deals with reasonable adjustments and provides that there is no duty to make reasonable adjustments if the employer does not know and could not reasonably be expected to know that the person has a disabled and is likely to be placed at the disadvantage referred to. Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability of Long-Covid? If yes, from what date? The Claimant asserts that the Respondent ought to have had knowledge since February 2022.

[728]As the claimant conceded in cross examination, prior to her contracting Covid-19 in March 2020 (since October 2019), the respondent had already made arrangements for her be able to work from home [page 95]. Nevertheless, when she indicated that she required this as an adjustment, due to tiredness, from 2020 onwards this was accommodated.

[729]The document at [RB page 90] (which refers to suspected 2019’ ‘N Cov infection on 24 March 2020’) was never provided to the respondent at the material time. In May 2022 the respondent refers to the claimant having been offered a referral for OH which the claimant accepted the respondent could only action with an employee’s permission. The claimant claimed that she chased this “between May and September 2022” but the respondent invites the Tribunal to find that the claimant repeatedly declined the offer of a referral to OH as supported by the contemporaneous documentation i.e. the 1-2-1 in July 2022, [page 746-7].

[730]The respondent further submits that the claimant has not been able to point to a single document where the claimant was chasing this referral, and the omission of the accounts she subsequently gave to the Tribunal not being reflected in her witness statement. The claimant accepted there was no evidence that between May 2022 and May 2023 she was chasing for a referral to OH.

[731]Taking into account that the claimant was not someone to shy away from putting any concerns she may have had in writing, the respondent contends that this omission of evidence is revealing and that the claimant accepted that in 2022 to May 2023 the only symptom complained of, due to Long Covid, was “tiredness”, [page 749].

[732]The respondent also submits that prior to the claimant’s suspension on 25 May 2023, she was capable of carrying out her day-to-day duties without issue, save for some in person meetings. It is noteworthy that the claimant did attend the office from time to time, albeit she predominantly worked from home and accepted that she had no difficulty with Teams meeting. The respondent also submits that were was no increase to medications that she had been prescribed prior to May 2023. Whilst the claimant refers to additional medication of Codeine and Naproxen between May and August 2023, the respondent invites the Tribunal to find that these are medications associated with back pain. There is no evidence to suggest that this was in connection with the claimant’s Long Covid and that between May and August 2023 the only medical information the claimant provided to the respondent was her Fit note of 2 August 2023.

[733]The respondent further submits that from March to August 2020 the claimant only had 5 days absence due to Covid-19, [page 572]. The claimant’s next absence was almost two years later in July 2022 where she was absent for 3 days due to post viral syndrome, which the claimant suggests was Covid-19 related [page 684]. Around 8 months later, the claimant was absent for 3.5 days, due to testing positive for Covid19, not Long covid, [page 772]. On or around 2 August 2023, 5 months later, and over two months after her suspension, the claimant submitted a fit note for “long covid” and “work related stress” [page 418]. The respondent contends that this is the first Fit Note the claimant submitted identifying “long covid” as a reason for her absence; and the respondent contends that if it only knew about the claimant having cognitive difficulties as of 2 August 2023 then they could not reasonably have made adjustments before this date. The claimant accepted she had not provided any medical evidence to the respondent to demonstrate these challenges at the material time. The claimant also conceded that neither she, nor her trade union, raised this as an issue during 3 August 2023 meeting with Mr Martin.

[734]The respondent invites the Tribunal to find that the respondent did not and/or could not reasonably have known of the adjustments and/or disadvantages claimed by the claimant at the material time and/or certainly not prior to 3 August 2023. Notably, the claimant does not appear to be able to point to any evidence which suggests she would be disadvantaged, in the way she now claims, prior to this date. Simply citing “the different ailments Long covid can be subject to” is not the same as suggesting they are the symptoms being encountered by that individual.

Conclusion

[735]The Tribunal have taken into account that the claimant was not signed as unfit to work from the date of suspension until 2 August 2023. All through the relevant period was she seemed well enough to work. The Fit note mentioned Long Covid but did not address any symptoms and prior to this Fit note there was no medical evidence that the claimant considered that she was put to any disadvantage while working from home.

[736]The claimant had raised that she had Long Covid, hence the decision to obtain on OH in 2022 to explore what adjustments may be required. The respondent did not, it seems, press the value of an OH report, however the Tribunal have also found that the claimant appears not to have considered that beyond working from home, any adjustment to her work was required and that this explains why she did not chase up an OH assessment or complain that one had not been obtained during the return to work interview on 11 July 2022. After she had been off work for only 3 days the claimant signed the form which stated no referral would be made to OH [page747].

[737]The Tribunal conclude that the claimant was keen to get back to work in July and beyond working from home, she did not consider she needed any further adjustments. It may well be that she was not sure that an OH report may have supported her continuing need to work from home but whatever the reason, the Tribunal conclude that she did not want an OH assessment at this time.

[738]As set out in the findings of fact, from 7 February 2022 to 30 April 2022 the claimant was absent due to post viral syndrome [page 684] and the GP in the Fit note stated that she would benefit from reduced working hours e.g. 4 days a week being able to work more at home, albeit unhelpfully it does not provide any more details about the effects of the condition and why this recommendation was being made. The Tribunal have not seen copies of the GP notes recording what the claimant discussed with her GP at this time.

[739]The claimant presented a formal grievance on 24 February 2022 about her line manager, Ms Farish [page 670] in which she refers to her health and ‘Long Covid relapses’ although she does not explain what they actually present as. She refers to general symptoms of Long Covid. She also referred to having had a mental breakdown in January 2022 [page 672]. The Tribunal were not taken to any medical evidence which referenced any mental breakdown in January 2022 or evidence any episodes which link any depressive disorder with Covid 19.

[740]That ambiguity around what the symptoms, aside from tiredness, she actually experienced continued.

[741]At a one-to-one meeting on 12 July 2022 [page 749] the claimant talked about her Long Covid and reported that the main symptom was fatigue following recovery from Covid and not knowing how the recent Covid infection may affect her existing Long Covid. No other symptoms/effects were mentioned/recorded.

[742]As a minimum from this date the respondent the Tribunal conclude was aware that the claimant understood that she had Long Covid and was suffering from tiredness after a recent further Covid infection.

[743]As set out in the findings of fact, In July 2021 she attended work for a meeting and had reported tiredness after climbing stairs at work.

[744]The respondent was aware that the claimant had reported having Long Covid and had never informed them that she had fully recovered. They were also aware that she suffered fatigue and that fatigue is a possible symptom of Long Covid. The claimant had provided Mrs Farish with details of possible symptoms and it is in any event an easy exercise to research the main/ most prevalent symptoms of Long Covid online.

[745]The respondent did not obtain an OH report to inform them of the extent of the claimant’s Long Covid and its symptoms and regardless of the claimant not wanting an OH assessment, it would have been sensible to have made further attempts to persuade the claimant of the value in obtaining one to ensure clarity around her actual condition and symptoms.

[746]The Tribunal conclude that even if the respondent did not have actual knowledge of each of the requisite components of her condition, the Tribunal have little difficulty in finding that there were sufficient ‘red flags’ that the claimant may have a disability due to Long Covid at least because of reported tiredness and the request to work from home and the respondent failed to carry out reasonable enquiries i.e. made a referral to OH to inform itself of exactly what her conditions and its symptoms were (or were not).

[747]The EHRC Employment Code states that that employers must ‘do all they can reasonably be expected to do’ to find out whether a claimant has a disability. A reasonable step would have been to action the OH report but it did not do so.

[748]The claimant had also asked during the grievance hearing with Mr Alder that an OH report be carried out and while the respondent submits that until 3 August 2023 the claimant was on suspension, not sick leave and it would not normally be its practice to generally refer employees to OH whilst on suspension or an employee who had been signed off for such a short period of time, (such as the claimant had by this time), the claimant had raised during the 29 June 2023 hearing having symptoms of Long Covid and that an OH report should be obtained to assess what adjustments she may need [page 188]. She sets out in that meeting the knowledge of her manager and director about her condition [page 185] and refers to having ‘many symptoms’, albeit again here she does not set out what they are and they remain ambiguous. This referral may have been another attempt to delay and stall the disciplinary hearing however; the respondent knew she had Long Covid and it would have helped inform them of the extent of her symptoms and whether she did in fact need any adjustments.

[749]The Tribunal have little difficult in concluding that at the relevant time the respondent had actual knowledge of the claimant’s disability, in terms of the condition and that it caused tiredness/fatigue particularly when climbing stairs and had constructive knowledge in any event because it had enough information to have prompted it to make further reasonable enquiries and had it done so then on balance the Tribunal consider that it would have obtained knowledge that the claimant suffered at times from increased tiredness/fatigue which was significant when compared to her condition pre Long Covid when climbing stairs or potentially at times of stress/ excessive workload.

[750]The respondent had the requisite knowledge of the disability and those symptoms since at least February 2022.

[751]The Tribunal also conclude that if the claimant did have other symptoms e.g. brain fog / cognitive impairment, had they obtained an OH report as the claimant was inviting them to do to better understand her condition, then while she only later mentioned these symptoms on 2 August 2023, had it made reasonable enquires from 29 June 2023 about her disability, had she had those other symptoms it would have had knowledge from about 6 July 2023 (allowing about a week time for an urgent OH assessment to be carried out). However, the Tribunal do not conclude that the claimant had those other symptoms on the evidence as presented. Did the Respondent impose the PCPs set out at paras 6.1.1 to 6.1.3 above?

[752]The Tribunal have found that:

[753]PCP 1: The claim is that the PCP was minimum of 3 days’ notice, however the actual PCP is more generous than the pleaded PCP in that the minimum is 3 working days’ notice and included flexibility where needed.

[754]The pleaded PCP of not less than 3 days’ notice, was not however applied to the claimant in that she was given more than the minimum in any event.

[755]PCP 2: The Tribunal has found that the claimant has not identified accurately the PCP, there is a requirement for employees to make every reasonable effort in the case of disciplinary proceedings or every effort in the case of grievance hearings, however there is also provision for written documents to be submitted and considered if the person cannot attend.

[756]PCP 3: The Tribunal have found that the respondent did not have and did not impose on the claimant this PCP of not accommodating periods of sickness absence related to disability when conducting disciplinary and grievance processes (see above in this judgment). Did the PCPs put the Claimant at the substantial disadvantages alleged at paras 6.5.1 to 6.5.3 because of her disability? Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?

[757]In terms of the pleaded substantial disadvantages and knowledge of them: In respect of the PCP 1 set out at 6.1.1 above: exacerbation of her long-Covid symptoms, creating a substantial disadvantage and hindering the Claimant’s ability to effectively participate in the proceedings?

[758]For the reasons set out above the Tribunal have not found that the claimant was disadvantaged as pleaded. In respect of the PCP 2: set out at 6.1.2 above: hindered her ability to effectively participate in the proceedings and exacerbated her disability?

[759]The respondent denies that the claimant was placed at a disadvantage and/or certainly not to the extent that she now seeks to assert to the Tribunal. For example, she claims that she was not capable of engaging in video link hearings when her own evidence demonstrates that this was a falsehood. The respondent invites the Tribunal to find that the respondent did not and/or could not reasonably have had knowledge of the adjustments sought at the material time.

[760]For the reasons set out above the Tribunal conclude that the burden of showing individual disadvantage is on the claimant (section 136 Equality Act 2010), and the Tribunal conclude that the claimant has not established on the facts that the claimant was put at the pleaded substantial disadvantage ( and in any event accept that it could not have had knowledge). In respect of the PCP 3: set out at 6.1.3 above: compelled the Claimant to work excessively long hours, which added extreme difficulty to the her effective participation in the proceedings and severely exacerbated her long-COVID symptoms and disability-related disadvantages, resulting in a significant deterioration in her health.

[761]Apart from Fit note, prior to 2 August 2023 the claimant produced no medical evidence about her condition or the need for adjustments. She produced a fit note from 2 August 2023 however the Tribunal accept that there is a difference between an employee being fit for work and an employee being fit to attend a meeting.

[762]The claimant conceded that in her response to Mr Martin on 2 August 2023 she did not identify her symptoms of Long Covid, [page 400].

[763]Mr Martin explained the challenges that both he and Mr Alder experienced when seeking to obtain information about her condition and/or the adjustments sought and the Tribunal have already commented on the ambiguity around the symptoms other than tiredness. The claimant was not forthcoming with any description of other symptoms and merely would reference generic symptoms.

[764]The Tribunal do not find that the pleaded PCP put the claimant at the pleaded Auxillary Aids

[765]While section 20 (5) Equality Act 2010 namely, that without the provision of an auxiliary aid the claimant would be put at a substantial disadvantage, was not pleaded, the judge flagged up at the outset of the hearing that consideration should be given where appropriate. The respondent counsel in submissions refers to Mallon v AECOM Ltd

UKEAT/0175/20

and distinguishes this on the basis that the claimant has not advanced her claim as a PCP, as opposed to an auxiliary aid. It was also brought to her attention on the first day of the hearing by the judge that the adjustments may be argued as failures to make auxiliary aids and this was explained to her however the respondent argues that the claimant had not clarified that she wants to rely on the claims as auxiliary aids and the respondent invites the Tribunal to find that the claim as advanced is contrary to how the claim has been presented.

[766]The Judge had raised at the outset of the hearing, the issue whether the PCP’s may be better addressed as auxiliary aids, explained the distinction to the claimant and invited the parties to consider that and deal with it in submissions. When making oral submissions, the claimant explained that she had decided to present her case on the basis of the adjustments being PCPs which is how she wanted to present her but in passing when this was raised again with her during her submissions, merely stated that it would have been helpful. The Tribunal have therefore briefly considered the application of section 20 (5) Equality Act 2010 in any event, given the claimant was without representation, the respondent made submissions on the point.

[767]The Tribunal, however, do not find that the claimant has established that she suffered the pleaded substantial disadvantage nonetheless reasonable adjustments were afforded to her in that she was provided with written questions in advance, and while it was only the day before, the questions were straight forward and there were not many of them. The claimant was not required to set out her responses in writing but she elected to do so and, in those circumstances, if she felt she needed more time to do that, it would be reasonable for her to explain that. The Tribunal conclude that the respondent did not have the requisite knowledge that she intended to produce a response in writing or such a verbose and lengthy response which failed to focus on the relevant issues. She chose to include a substantial amount of superfluous detail, which if she still wanted to produce it, she could have produced further information after the hearing. The claimant complains that she spent hours producing the document but this was not required and if she did it anyway without due regard to her health, that this was unreasonable of her.

[768]It would not have been a reasonable adjustment to allow her more time in order for her to produce realms of irrelevant information.

[769]The claimant said she wanted breaks and was told she could have breaks, but in the event she did not it seems require any and made no request for break or an adjournment and was clearly keen to move the process along and get an outcome.

[770]Neither the claimant, nor her trade union representative, objected to the hearings taking place by Teams and the Tribunal consider that looking at the transcripts the claimant participated fully and she does not identify what else she would have said had she had more time to produce something else in writing.

[771]Further, the respondent invites the Tribunal to find that the claimant adduced no medical evidence to support her assertions that the disadvantages relied upon were present or was likely to occur at the material time, either at the time, or during the hearing.

[772]The respondent witnesses highlighted that there were no flags to them that the claimant was cognitively impaired at this time. The claimant suggested that this would have been apparent from her 2022 grievance, however the respondent refers to Ms McCarthy’s evidence that it was clear that the claimant did not have “any prolonged or excessive periods of absence, no concerns were raised about the claimant’s performance or productivity, there was no increase to the claimant’s medication or suggestion of greater impairment in your return to works. There were no red flags to me that your cognitive ability was being impeded.”

[773]The Tribunal accept that the contemporaneous evidence supports this but, in any event, have not found that she in fact had this effect/symptom.

[774]The Tribunal do not find that the claimant was put at a substantial disadvantage by not being able to conduct the hearings in writing and had she been given more time the Tribunal consider that it is more likely than not that the claimant would have spent vast periods of time producing more information not relevant to the grievance appeal and it would have been extremely difficult in writing to clarify and understand the relevance of it.

[775]In any event, the Tribunal are not persuaded that the claimant was put to a substantial disadvantage and the respondent would not have the requisite knowledge of any alleged disadvantage because she did not explain that she needed more time because it was her intention to produce a 23 plus page document.

[776]The Tribunal accept the respondent’s submission that it took reasonable steps which included: providing the claimant written questions in advance of the grievance appeal hearing, [page 291], providing the claimant with 5 working days’ notice and 7 calendar days’ notice of the grievance appeal hearing, [page2 71-2];postponing the disciplinary hearing and not resurrecting this whilst the claimant was absent from work and/or whilst a grievance had been raised against Ms Cornthwaite, providing C with 4 working days’ notice, 6 calendar days’ notice of the proposed disciplinary hearing, [page 310-1], offering the claimant the option of in person, Teams or the ability to produce documentary/written evidence for meetings, [page 311/271], providing the claimant with copies of the disciplinary guidance which offers an employee the right to provide written submissions, which the claimant did not do; and referring the claimant to its counselling service.

[777]The Tribunal find that there is no evidence that the respondent’s actions which the claimant complains about led to a deterioration or exacerbation of her condition.

[778]The claims are not well founded and are dismissed.

[779]In terms of the application of section 20 (5) Equality Act 2010 and whether the claimant 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. Despite the claimant not really engaging with this in her submissions, the Tribunal have considered the auxiliary aids of; undertaking disciplinary and grievance procedures in written form, providing a list of specific questions sufficiently in advance and communicating with the claimant via email only and making a referral to OH to identify adjustments and pausing the grievance and disciplinary processes while her Fit note was live. Dealing briefly with section 20 given the absence of any real argument advanced by the claimant (despite her ability to present legal arguments), the Tribunal find for the reasons set out above that the claimant was not put at the pleaded substantial disadvantage and had not established that she was put at a substantial disadvantage in comparison to persons not disabled who are in the same circumstances, i.e. going through the process (and inevitably stressful)l process of a disciplinary investigation and grievance proceedings. Harassment (s.26 EqA 2010)

[780]The respondent invites the Tribunal to dismiss these claims and treat them as abandoned as the claimant failed to positively advance these claims to any of the claimant’s witnesses.

[781]The Tribunal however has regard to the fact that the respondent witnesses were aware of the claims, they are clearly set out in the LOI and the claimant sets out the allegations in her evidence in chief and has not formally withdrawn the claims. The Tribunal do not consider it appropriate to simply dismiss the claims but have gone on to consider the agreed harassment claims on the evidence presented. Requiring the claimant to communicate verbally during the disciplinary and grievance proceedings and attend disciplinary and grievance meetings "in person" via video link (Grievance Appeal Hearing scheduled for 3 August 2023 and Disciplinary Hearing scheduled for 7 August 2023): LOI 8.1.1

[782]In terms of the grievance and grievance appeal hearing, the Tribunal do not find that attending the hearing via Teams was unwanted conduct. While the claimant in the letter of 27 July [ page 273] had asked for meetings to be conducted in writing she also preferred an alternative email which states that if that could be accommodated she wanted to be sent the notes immediately after the meeting (although she was not disadvantaged by that in fact because she was covertly recording the meetings).

[783]The Tribunal have not found that the claimant was subject to a substantial disadvantage in attending the hearings and further while it may have been her preference to conduct meetings in writing, she was prepared to attend and the Tribunal have concluded that she was able to participate effectively and have experienced trade union support

[784]Neither the claimant nor her union representative stated that she was attending under protest and the Tribunal conclude that while her preference may have been to conduct the process in writing, she was prepared to attend and did so and in truth her reticence about attendance was probably more to do with the pending disciplinary than hearings about her grievances which she was keen to progress,

[785]The Tribunal do not conclude that the treatment was because of the claimant’s disability. Mr Martin was applying the Grievance Guidance. The claimant’s own case is that the requirement to attend in person is a PCP (PCP 2) which applied or would be applied to others who were not disabled.

[786]The claimant has not provided any evidence that the treatment she received was related to her disability. While a comparator is not required, it is useful for a claimant to establish that he or she has been less favourably treated than someone who does not share the protected characteristic. The claimant does not identify anyone.

[787]The Tribunal is mindful that it is necessary to consider whether any inferences may be reasonably drawn from the facts, and that once evidence from which a tribunal could draw an inference is present, it is then for the respondent to prove otherwise. The transcript of the hearing does not indicate that Mr Martin’s conduct in the meeting was unreasonable or unsupportive e.g. Mr Martin: …I just wanted to, you know, go through a little bit one some of this, and if it does get too much please , please do let me now Claimant: I will be asked for breaks as I need it. [page 406]

[788]The claimant complains that Mr Martin had only ‘skim read’ her document and attempted to discuss it with her in the meeting however, he had reassured her that he would read it, he did not press her when she did indicated she did not want to go over what was in the document and the Tribunal have regard to the length of the document and that it is unclear what relevance a significant amount of information in that document had to the decision which was taken to suspend. The claimant accepted [page 407] that a lot of the content of the letter was “outside the appeal process…”

[789]The claimant in her evidence in chief [w/s para 189 – 192] states that at the hearing her health was trivialised. The Tribunal do not find that this is made out. The claimant was asked about her condition and adjustments and the Tribunal cannot see from the transcript that Mr Martin did not make any comments which could reasonably be taken to have trivialised her health. Did the conduct have the purpose or effect of violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

[790]The Tribunal are mindful that in relation to the impact it is necessary to take a holistic approach and will do so in respect of any proven unwanted acts however, as a free standing act, the Tribunal consider that it is not established that Mr Martin’s purpose in holding the meeting remotely was intended to have the prescribed effect and his conduct in the meeting and the tone of his correspondence does not indicate otherwise. The claimant did not put to him that this was his purpose.

[791]The claimant alleges that near the close of the meeting on 3 August, Mr Ing smiled and she has included this within her transcript, although it was only an audio transcript and therefore this addition is not what is actually recorded however, while the claimant alleges in her evidence in chief, [para 191] that it was an “ unprofessional, inappropriate smile” after the entry where the claimant has included a comment that Mr Martin smiled, the following exchange is recorded immediately afterwards: Claimant: “That is all that I have for this discussion. Thank you very much Damian, I appreciate your time.” Mr Martin: “And please take care of yourself. Your health is the most important thing in all of this. You know, so please do take care of yourself.” Claimant: “I will do my best. Thank you very much”… Claimant: “Have a good day, thank you”.

[792]The claimant does not write after the meeting, or her union representative write in to complain about Mr Martin and Mr Ing’s conduct or an ‘inappropriate smile’.

[793]There is no supporting evidence from the claimant’s very experienced union representative about any inappropriate behaviour at this meeting. Subjective Effect

[794]In deciding whether the conduct has the effect referred to in S.26(1)(b) EqA (i.e. of violating a person’s (B) dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B), each of the following must be taken into account: the perception of B, the other circumstances of the case, and whether it is reasonable for the conduct to have that effect: section 26(4).

[795]The Tribunal take into account that the claimant attended the meeting with her union representative and neither she nor he indicated that in attending the claimant felt or perceived her dignity to have been violated or an adverse environment had been created.

[796]The claimant made a reference to her blood pressure ‘spiking’. It is unclear how she would know this, but she does not request a break but makes a rather flippant comment near the end of the meeting; “I will be logging off after this call and popping a lovely blood pressure tablet”. However, the medical records do not show that high blood pressure had been diagnosed or that she had self-reported high blood pressure before 24 October 2023. It appears that blood tests had not been carried out for some time which suggests in October 2023 this was not an ongoing recognised health issue. If the claimant needed to take a tablet it also makes little sense that she did not request a break to take it but waited until the end of the meeting and then made this rather flippant remark about it and yet never once asked for a break.

[797]The Tribunal do not find on the evidence that the claimant herself perceived the meeting to have the proscribed effect, she was no doubt worried about being on suspension however, the Tribunal do not find that this meeting of itself had the proscribed effect and do not on the evidence accept that she was suffering with raised blood pressure during the meeting. Objective Effect

[798]As the respondent raises in its submissions, if the claimant's subjective view (subsection (4)(a)) is not established on the facts, the ET need go no further: Pemberton v Inwood

[2018] EWCA Civ 564

[2018] IRLR 542

[2018] ICR 1291

. However, the Tribunal will nonetheless address this.

[799]Conversely, counsel submits that if it appears to the ET that it was not reasonable for the conduct to have the claimed effect (ss.(4)(c)), that too will end the necessary inquiry: Ahmed v The Cardinal Hume Academies

UKEAT/0196/18

(29 March 2019, unreported).

[800]The respondent also refers to the well-known guidance in Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

,:"While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct... it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

[801]The Tribunal do not consider that objectively it would be reason for this meeting of itself (albeit taking into account the circumstances) to have the proscribed effect. This was a meeting as a result of a grievance the claimant raised, she was the Tribunal find content to attend it with her union representative, neither asked for it to be adjourned she did not say she could not attend and she was keen for the appeals to be resolved.

[802]The claim is not well founded and is dismissed. Repeatedly arranging "in person" via video link meetings at short notice for 3 and 7 August 2023, compromising the Claimant's preparation time and ability to participate effectively: LOI 8.1.2

[803]The Tribunal accept that the claimant had complained [page 378] that the questions Mr Martin intended to ask for the grievance appeal on 3 August 2023 had been provided with insufficient notice, sent on 1 August at 5:19pm which the claimant complained she had not received until the morning of the 2 August [page 369].

[804]The complaint is however that the meeting itself was organised at short notice. The invitation was sent on 27 July at 3:29pm [page 288] for a meeting on 3 August 2023. The claimant did not raise when she received it that it was short notice; she was keen to resolve the appeal and did not write back asking for more time (and she had no reason to think it would not be given. How keen she was to proceed is supported by the fact that after speaking with her union representative, she confirms he will rearrange his plans to attend. Having accompanied someone as a union representative herself, she would have been aware that she could have requested an adjournment if her representative was unavailable: “Thank you for getting back to me on this I have heard from my union representative, Garry Guye, that he should be able to move his meeting commitments for her day around in order to accompany me to the Appeal Hearing Meeting on the 3rd August 2023 at 10am via Microsoft Teams. …Could you please send across the meeting link to hm? Thank you very much.”

[805]The Tribunal do not find that the meeting on 3 August was unwanted or that it was at short notice and while the questions were sent giving the claimant only one day to provide her answers, while the Tribunal find while this element was unwanted, this is not the relevant pleaded act but in any event, she could have asked for more time had she been that concerned.

[806]The letter inviting the claimant to the disciplinary hearing was sent on 1 August 2023 [ page 310] and the hearing was arranged for 7 August, that was 6 days- notice, which is more than the minimum set out in the Policy and Guidance document. The claimant did not complain about the time but asked for an adjournment because her union representative was unavailable and this was granted and the hearing never took place. The Tribunal do not find therefore that the stated effect impact on her preparation time and ability to participate was compromised.

[807]The Tribunal do not find any evidence or inference, to support a finding that the hearings were arranged on the dates they were, for any reason relating to the claimant‘s disability, that has not been established. The time given was more than the minimum set out in the Guidance and the claimant does not seek to advance any comparator to assist the Tribunal. Did the conduct have the purpose or effect of violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

[808]The Tribunal do not find any evidence to support a finding that the purpose of arranging the hearings on the dates given was for it to have the proscribed effect. If that had been the intention the minimum notice could have been given and requests for adjournments resisted, neither is the case and the claimant did not put this allegation to any of the respondent witnesses. Subjective Effect

[809]For the reasons set out above the Tribunal do not find on the evidence that these acts of themselves had the proscribed effect. While the fact the claimant was unhappy that she received the questions at short notice, she prepared her answers, accepted a lot of what she set out was not related to the appeal in any event and did not request more time. While unhappy she was not given more time, she did not request an adjournment or more time because she felt impaired in some way from effectively participating and the Tribunal do not find that the acts had the proscribed effects. Objective Effect

[810]The Tribunal also find that in the circumstances, where; she was given more than the minimum notice, where the grievance around the suspension and the disciplinary was really fairly straight forward, and where she did not request more time, that it was reasonable for the acts complained of to have the proscribed effects. Corresponding and engaging with the claimant about matters not relating to due to work related stress and long Covid from 02 to 16 August 2023: LOI 8.1.3 Disregarding the claimant's fit note and continuing to proceed with disciplinary and grievance proceedings without considering its implications, contributing to a hostile environment: LOI 8.1.4 Holding the grievance appeal meeting whilst the claimant had a fit note for the period 02 to 16 August 2023, despite awareness of the Claimant's fit note indicating unfitness for work: LOI 8.1.5

[811]The Tribunal will address these issues together because of the obvious duplication as they relate to the respondent’s response to the fit note. Corresponding with the claimant during her sick leave

[812]The claimant herself the Tribunal find was writing to the respondent about the disciplinary and the outcome of the grievance on numerous occasions from 2 August to the 16 August [some egs pages 454,453,452,451,446,444]. On the 11 August the claimant wrote not about her Fit note but sending more information about her grievance and asks that Mr Martin emails her to confirm receipt.

[813]The Tribunal do not find that communication with the claimant was unwanted in general during this period. Disregarding the Fit note

[814]The Fit note was not disregarded in that the nature of her absence was changed to sick leave, albeit the respondent did not formally write to her and confirm the change in status. The respondent invites the Tribunal to find that this was a general oversight due to the various communications that were occurring at this time. The Tribunal find that there no contractual obligation to write out to her and that the claimant could have checked with Ms Farish or emailed HR to check her sick note had been progressed.

[815]The Tribunal accept the claimant’s evidence under cross examination that she could not access her payslips during suspension because she could not access the Oracle online system but did she agree in cross examination that she could have requested them and did so towards the end of her employment.

[816]The Fit note did not state that the claimant was not well enough to take part in any grievance or disciplinary hearing and she herself was content the Tribunal find to attend and was able to fully participate in the grievance appeal hearing on 3 August. Grievance

[817]The claimant’s case is that she submitted her Fit note on 2 August 2023 to Mr Ing. On 3 August 2023, at 10:00am she attended a Grievance Appeal Hearing with Mr Martin and Mr Ing. The claimant conceded in cross examination as the respondent rightly points out in its submissions, that this fit note was not sent to Mr Martin and further, the accompanying grievance do not relate to the grievance hearing and how that should be conducted.

[818]The claimant as set out above, did not ask that the grievance was adjourned, she was content the Tribunal find to proceed with the hearing with her experienced representative in attendance. The holding of the grievance hearing on 3 August was not unwanted. Disciplinary Hearing

[819]The disciplinary hearing was postponed on 3 August 2023 and the unwanted conduct did not take place i.e. the process was not proceeded with during her sickness absence.

[820]There was some delay in acknowledging the claimant’s sickness absence due to Ms Cornthwaite being on a 3-day workshop, [page 363] and the claimant would have been aware of this from the email automatic reply. However, on 7 August the claimant was made aware that the hearing could not take place in any event until after her Fit note had expired. The unwanted act did not take place.

[821]The Tribunal do not find that the claimant has proven any link between her disability and the alleged unwanted acts. She points to no other person who received different treatment in not materially different circumstances. Proscribed effects Purpose

[822]There is no evidence to support a finding that the purpose behind any actions of those involved in the disciplinary and grievance process or who dealt with her Fit note, was to cause the proscribed effect and the claimant did not put this to them in cross examination. Effect

[823]The Tribunal have had regard to the nature of the correspondence and note that it is polite and professional throughout. Adjournments were granted when requested.

[824]The claimant was not required to attend the grievance hearing in person if she was not fit to do so and questions were sent out in advance (albeit only the day before but there are only 14 straight forward questions set out for discussion). There are no emails from the claimant stating that she does not want contact during her sickness absence and indeed she initiates contact and asks for her emails to be acknowledged.

[825]The claimant was keen to get a conclusion to the grievance and in fact makes contact on a number of times to chase the outcome. The claimant sent a considerable amount of documentation and sends documents quoting case law and legal principles in detail and is robust in asserting her rights and accusing the respondent of breaching their obligations to her, while she asserts that during this same period she is suffering from ‘brain fog’ and is disadvantaged in terms of her ability to participate in hearing. The Tribunal did not find the claimant’s description of her difficulties credible.

[826]The correspondence from her does not indicate that she is someone suffering with her cognitive functioning and it would seem at the same time in August she is actively looking for and attending interviews for new jobs while in without prejudice discussions with the respondent to reach an amicable resolution. Subjective

[827]The Tribunal accept that the claimant felt under pressure in this process but consider that this was more likely than not, because she was concerned (given her own involvement in the May WhatsApp messages) that she would be dismissed and she was working hard to prevent a disciplinary hearing taking place while looking to secure other employment to avoid dismissal, which she ultimately managed to achieve.

[828]The Tribunal do not find any of the pleaded acts individually or together had the proscribed effects. Objective

[829]The Tribunal do not consider that taking into account all the circumstances, (which includes all the harassment complaints and the claimant’s health), it would be reasonable for the respondent’s actions objectively to have the proscribed effects. If the claimant felt the environment was intimidating, that was more likely than not because she was concerned about the eventual outcome of a disciplinary hearing because of her own behaviour. However, it was perfectly reasonable for the respondent to refer this case to a disciplinary hearing and that she may ultimately attend a disciplinary hearing is not the pleaded act. Victimisation

[830]The respondent submits generally that despite the claimant being repeatedly reminded by the judge to address her mind and questions to the LOI , she failed to advance a positive case in respect of these claims and the respondent again invites the Tribunal to find that the claimant appeared to have effectively abandoned these allegations, failing to put all and/or the majority of those claims to any of the respondent’s witnesses and/or demonstrate any causal link between the protected act asserted and the detriment relied upon. As such those claims must fail.

[831]The claimant did not formally withdraw these claims and the Tribunal have considered the complaints individually and cumulatively when considering the causal connection and possible inferences but have taken into account the fact that the claimant did not appear to want to pursue these complaints with the witnesses but did do so with other complaints. Did the claimant do a Protected Act?

[832]The claimant relies on her grievance of 1 August 2023 as a Protected Act and the respondent concedes that it amounts to a protected act. Did the claimant subject the claimant the following detriments because she made a protected act? The Respondent abruptly resumed the disciplinary process after receiving the Claimant's grievance on 1 August 2023 despite previously staying the proceedings on 15th June 2023 [3.3.3] LOI 10.3.1

[833]The disciplinary policy provides that: “If you decide to raise a grievance during the disciplinary process then we will arrange a grievance hearing for you and both the processes will run at the same time.” [Clause 9, page 645].

[834]The Tribunal accepts the respondent’s submissions that a temporary pause on a process, is not the same as saying that no further action can be taken until a process has concluded and the claimant conceded that prior to the disciplinary investigation report being finalised on 7 July 2023, all meetings to investigate her grievance had concluded on 3 July 2023. Notably Mr Alder confirmed that he had reached a conclusion on 5 July 2023 and invited the resumption of the disciplinary investigation thereafter [page 813].

[835]The Tribunal conclude that the facts simply do not support a causal connection between the Protected Act and the alleged detriment. The Tribunal conclude as set out in the findings of fact, that the decision was taken to proceed with the disciplinary hearing before the Protected Act was made

[836]As set out in the findings of fact the Disciplinary Investigation Report was produced prior to the Protected Act, recommending disciplinary action and a Teams meeting on the 20 July took place to discuss arrangements for the disciplinary hearing. On 26 July 2023 Mr Ing had informed Mr Martin that the claimant’s disciplinary hearing was due to take place on 7 August [page 1057]. The claimant did not put it to Mr Clarke, Mr Ing or Ms Cornthwaite that any decisions were made about proceeding to a disciplinary hearing because it was ‘anticipated’ that the claimant may issue a further grievance.

[837]It is not however perhaps surprising that at the time the claimant was suspicious that 3 hours after she filed a grievance on 1 August, she was invited to a disciplinary hearing however, the claimant has since seen the documentation and did not withdraw this allegation.

[838]The claim is not well founded in that the casual connection is not established on the facts and in any event conclude that resuming the disciplinary hearing was nothing whatever to do with the Protected Act. Looking at the totality of the primary facts, it is not reasonable to draw an inference adverse to the respondent. The claimant has not established a prima facie case of victimisation.

[839]The claim is not well founded and is dismissed. The claimant was provided with inadequate advance notice and time to prepare for grievance and disciplinary proceedings in August 2023: LOI 3.3.4 Disciplinary Hearing: 7 August 2023

[840]For the same reasons as above and as set out in the findings of fact, the Tribunal find that the letter sent out on 1 August 2023 providing notice of the hearing on 7 August, had been prepared and the date of the disciplinary hearing arranged, prior to the respondent receiving the claimant’s Protected Act grievance.

[841]The casual connection has not been established. The claimant has not established a prima facie case of victimisation and in any event conclude that the act had nothing whatsoever to do with the Protected Act.

[842]This part of the claim therefore is not well founded. Grievance Hearing

[843]The claimant was informed of the grievance appeal outcome meeting on 3 August by email of the 27 July 2023 [page 271/2], before the Protected Act. In terms of the questions, these were sent on 1 August, before the Protected Act. There is the Tribunal find no casual connection between the advance notice and time to prepare for the grievance appeal hearing on the Protected Act.

[844]The claimant was not required to attend a grievance hearing for the Protected Act grievance or the 4th and 5th grievance and there was no disciplinary hearing, therefore there was no requirement to prepare. There is a distinction between not having time to prepare and not invited to a hearing.

[845]The claimant does not allege in her evidence in chief that she expressed concern about the progress of her 3rd and 4th grievance until she raised her 5th on the 21 August. During the period from the 1st to the 21st the claimant had taken part in the grievance appeal hearing and been chasing for an outcome to that, seeking to postpone the disciplinary hearing, with the final grievance raised after the dismissal of her grievance appeal on 18 August.

[846]It is unclear what detriment the claimant was subjected to. The claimant resigned before the outcome of the August grievances and while she had the right to appeal the decision, she chose not to do so. But in terms of the pleaded case, it is about notice and time to prepare. The claimant does not set out what further information she wanted to present before the August grievances were dealt with on the papers (given the amount of information presented).

[847]The claim is not well founded and is dismissed. The Respondent failed to implement reasonable adjustments requested by the claimant, such as conducting processes in writing to accommodate her long COVID symptoms: LOI 9.3.3

[848]The decision to hold a meeting for the purposes of the disciplinary hearing and the grievance appeal hearing, was made before the claimant filed her Protected Act.

[849]The claimant has failed to identify what adjustments beyond conducting them in writing she alleges was not made because of her Protected Act or adduced any evidence in support of that.

[850]The disciplinary hearing never went ahead. The grievance appeal did and as set out above, she was content to attend it in person.

[851]The hearing dealing with grievance 3,4 and 5 was dealt with on the papers.

[852]The claim is not well founded and is dismissed. The Respondent disregarded the Claimant's GP fit note and proceeded with the grievance processes, and previously stayed disciplinary process, and did not postpone them or refer the Claimant to occupational health: LOI 9.3.4

[853]The claimant’s GP note was not disregarded as set out in the findings of fact (as above), it was processed and her suspension changed to sick leave. It did not say she was unfit to attending hearings.

[854]However, in terms of any detriment as set out above, the claimant was content to attend the grievance appeal hearing and the Tribunal conclude that the claimant has not proven that proceeding with this hearing, had anything to do with the Protected Act. The claimant never raised the Fit note with Mr Martin at this meeting.

[855]The disciplinary hearing never proceeded following its postponement on 3 August 2023. The respondent did not continue with this process during the claimant’s sickness absence.

[856]The delay in acknowledging her sickness absence was caused by Ms Cornthwaite being on a 3-day workshop, as set out in the findings of fact [page 363] and thereafter alternative suggestions made which was after the Fit note was due to expire.

[857]The claim is not well founded and is dismissed. The Respondent did not communicate with the Claimant about the contents of her fit note dated 2nd August 2023 or the HR system registration of the sickness absence which permitted the sickness absence, and any adjustments required, or conduct a return-to-work process to discuss the claimant's wellbeing [LOI 9.3.5];

[858]While the respondent did not inform the claimant that her sick note had been received and her status changed on the portal, it is clear that this was actioned on 3 August 2023 and her status changed to being on sick leave (as above).

[859]It is not clear why it is alleged this was because of the grievance submitted with it rather than previous grievances and it is not the case that it was not actioned and the claimant has not identified what detriment this caused or who victimised her. If it was Ms Farish, who was sent the sick note, she was not copied into the email sending the grievance document [page 292].

[860]Further, the claimant has not established that there was any particular practice around responding to Fit notes, and if she was concerned she could (but does not aver she did) check with her manager or HR that the Fit note had been processed.

[861]The Tribunal do find that given the volume of correspondence and activity around the grievances, appeal and disciplinary, it is more likely than not that sending an email to confirm she was now registered as on sick leave was simply overlooked.

[862]When the claimant asked for confirmation of receipt of an email this was provided promptly, for example she submitted her Protected Act on 1 August at 1:34pm [page 202] and asked for confirmation of receipt and Ms Henderson about 30 minutes later at 2:07pm sent a polite reply back confirming receipt and next steps [page 308].

[863]The Tribunal note that when she then sent her Fit note along with her email and grievance of the 2 August [page 366] she did not request confirmation of receipt of it but did set out a one-page list of what she wanted which related largely to requests for evidence.

[864]The Tribunal conclude that not holding a return-to-work interview while the claimant remained on suspension was reasonable and it has not been established by the claimant that this was not the normal approach or nor did the claimant identify anyone else treated differently from which an inference may be reasonably drawn.

[865]The Tribunal also take into account that the Fit note was for only 2 weeks and said nothing about the need for any adjustments or make any recommendations.

[866]The claimant suggests that her grievances were not being progressed but also complained about the processes being pursued while she was signed off as unfit to work. The Tribunal conclude that the claimant was concerned that she may be dismissed, did not want the disciplinary hearing to take place and yet was perfectly content to proceed with the grievance appeal, to attend it and prepare further voluminous documents for further grievances. She had explained to Mr Martin at the grievance appeal, that to make the hearing run ‘smoother’, what she was asking for was questions to be sent to her in advance so that she could digest them and prepare written answers, not because she did not want to attend the hearing.

[867]After the 1 August, the only meeting the claimant was required to attend was the one on 2 August which was she was content to attend and for which she chose to produce a significant amount of extraneous material which she accepted was outside the remit of the appeal.

[868]The issue of an OH report was first raised before the Protected Act with Mr Alder who dealt with the first grievance and his advice at the time was that a referral to OH is not of itself an adjustment and the claimant had not identified any adjustments. Mr Martin then flagged up the need to consider this further and did so with the claimant. The claimant did not identify anything other than being sent questions in advance and she did not complain that her condition was related to the act of suspension.

[869]The Tribunal do not conclude (as set out above) that the claimant was subject to a substantial disadvantage as pleaded and do not find that she was subject to a detriment because of not obtaining an OH report and/or having a return to work interview (which the Tribunal understands she considered she should have had with a view to making adjustments for her Long Covid).

[870]Further, taking into account that Mr Martin initiated a discussion about reasonable adjustments and had flagged that this should be considered further and did so after discussion with HR/Mr Ing and after the Protected Act, at the hearing on 3 August, does not support her case of victimisation. What she identifies at the hearing is a need for questions to be sent to her in advance, something they had accommodated albeit she raised that she needed more notice. The claimant was clear about what she needed to prepare for hearings.

[871]The Tribunal conclude that her condition was discussed with her and what adjustments she needed and that covered the health issues raised in her sick note even if there was no express reference to the sick note.

[872]The Tribunal do not consider, looking at the totality of the primary facts, that it is reasonable to drawn any inference adverse to the respondent and concludes that the claimant has not established a prima facie case of victimisation but in any event conclude that the conduct complained of was in no way whatsoever to do with the Protected Act..

[873]The claim is not well founded and is dismissed. The Respondent failed to implement adjustments requested by the Claimant and her request for accrued time off in lieu (TOIL) in August 2023 for imposed additional working hours required for participation in disciplinary and grievance processes [9.3.6];

[874]In terms of adjustments, that it covered by the conclusions in respect of LOI 3.3.5.

[875]In terms of the refusal of TOIL for work carried out in August 202, the claimant has not adduced any evidence linking this decision to her Protected Act.

[876]The Tribunal for the reasons set out in its findings of fact, conclude that the claimant has not established that she worked the hours claimed but even then, she has not established any contractual right to payment or any difference in the treatment of others who have had to prepare for grievance or disciplinary hearings while on suspension or sick leave. The claimant may consider she had some moral right to payment or that it would fair to pay her for the time she allegedly spent, but that does not give rise to a contractual right to payment or amount to discrimination.

[877]It is not reasonable to draw any inference adverse to the respondent and the Tribunal conclude that the claimant has not established a prima facie case of victimisation but in any event conclude that the conduct complained of was in no way whatsoever to do with the Protected Act.

[878]The claim is not well founded and is dismissed. The Respondent imposed unrealistic expectations and multiple tasks within a short timeframe, creating a scenario where the claimant was set up to fail: LOI 9.3.8

[879]The Tribunal do not accept that the respondent imposed unrealistic expectations or gave the claimant multiple tasks. The claimant chose to raise 5 grievances, set out in lengthy documents, citing legal principles and cases, at times repeating previous complaints and grievances, and in terms of the grievance appeal, her documents she admitted included material aside of the remit of that appeal.

[880]The claimant was aware of the allegations from 25 May 2023, the disciplinary hearing ultimately was to take place on 7 August, albeit this was adjourned and never took place.

[881]The respondent is not responsible for the way in which the claimant chose to present her grievances. Had she needed more time at any stage, she could have requested it. It is not clear what specific expectations were imposed after the Protected Act. The claimant conceded that she did not prepare any documentation for the proposed disciplinary hearing. Further, the claimant had not adduced any evidence linking any expectations or tasks with the specific grievance she raised on 1 August.

[882]The respondent submits that alternatively, to the extent that the claimant suggests she was provided with multiple tasks within a short time frame, the respondent reminds the Tribunal that the claimant:• was provided with 5 working days and 7 calendar days’ notice of the grievance appeal hearing;

• was provided with 4 working days/6 calendar days’ notice of the disciplinary hearing;

• could have submitted written evidence at any time, especially bearing in mind her knowledge of the disciplinary policy and with the support of her trade union;

• was not required to provide written responses to Mr Martin’s questions. Again, this was something she elected to do of her own volition, [Para 6, page 406]; and

• conceded that even if she had been provided with more time the content of the information produced would not have changed.

[883]The Tribunal accept those submissions. It does not find looking at the totality of the primary facts, that it is reasonable to draw any inferences from them adverse to the respondent and conclude that the claimant has not established a prima facie case of victimisation but in any event conclude that the conduct complained of was in no way whatsoever to do with the Protected Act.

[884]The claim is not well founded and is dismissed The Respondent failed to complete formal grievance processes and provide outcomes within the timelines set out in the grievance policy contrary to the grievance policy and the Acas code: LOI 9.3.8

[885]The Grievance Guidance and Policy do not set out a timescale for dealing with formal grievances. The Guidance sets out a ‘usual’ timescale for providing an outcome to a grievance appeal. The Acas Code provides for steps to be taken without unreasonable delay.

[886]The relevant acts must postdate the Protected Act and therefore it cannot relate to the original grievance hearing but the claimant complains about the first grievance appeal. Grievance Appeal: grievances 1 and 2 (14th June and 15 June 2023).

[887]The Guidance Document deals with timings around grievance appeals and states that they will ‘normally’ be heard within 10 working days after the appeal is received.

[888]The appeal was filed on 17 July 2023 [page 249]. 10 working days would take it to the 31 July 2023. It was heard on 3 August. That was 3 days outside the time which the respondent ams to ‘normally’ hear the appeal. It was not a significant delay.

[889]The Guidance provides that the outcome will ‘usually’ send a written outcome within 10 working days from the appeal i.e. in this case by about 17 August 2023 [page 629]. The outcome was received on 18 August. The time limit is not a hard deadline; it is what is said to be ‘usual’. In any event the claimant in cross examination clarified that what she was complaining in fact about the time it took Mr Martin to carry out his investigations and provide his letter, but the delay in appointing him because she had understood, (incorrectly the Tribunal find), that Ms Chandarana was going to hear the appeal when she must have known she would be unable to because she would be on leave.

[890]As set out in the findings of fact, her claim in this regard cannot succeed, not only did Ms Chandarana the Tribunal find not intend to hear her appeal, but the lack of communication she complains about took place before the date of the Protected Act

[891]The claimant submitted her Protected Act (grievance 3) before the grievance appeal hearing.

[892]In terms of the grievance appeal conducted by Mr Martin, the Tribunal do not consider that it was unreasonable for him to have taken the time he did and consider it.

[893]The Tribunal consider that the claimant’s unwillingness to show flexibility with the timescales, as set out in the findings of fact, was more likely because she was intent on finding further reasons (no matter how unreasonable), to deflect from the disciplinary process, creating grounds for other grievances and complaints.

[894]In cross examination, the claimant resiled from the complaint that the time Mr Martin took to deal with her appeal was unreasonable and when it was put to her that she was being reasonable by complaining about it, she disputed that this was what she was complaining about and her complaint was about Ms Chandarana. She did not seek to pursue a complaint that Mr Martin had been tardy in dealing with her appeal. Grievances: 3, 4, and 5.

[895]The claimant’s grievance 3 was about essentially bullying by her managers, excessive workload and request for a risk assessment. At this point, the claimant was on sick leave until 16 August and would return to suspension pending a disciplinary hearing. The claimant did not identify any link between the matters she complained about and the allegations about her sending the offensive song’s lyrics to her direct reports. The claimant was not at work and depending on the outcome of the disciplinary hearing, may not be returning.

[896]As for grievance 4, that was essentially seeking a stay of the disciplinary hearing and adjustment for it. Not long thereafter, the disciplinary hearing was adjourned until after 29 August and never took place.

[897]Following receipt of the claimant’s third, fourth and fifth (sent on 1st, 2nd and 18 August) grievances, after the expiration of her Fit note and receipt of the grievance appeal outcome on 18 August 2023, [page477-8], these communications were acknowledged by the respondent on 23 August 2023, [page 512] and 6 September 2023, [page 516].

[898]There was some delay in dealing with these grievances, albeit the 1st and 2nd August grievances related to excessive workload and a risk assessment at a time when the claimant was yet to return to work. The claimant had also submitted, which she accepted, a lot of documentation to be considered and further, during 3 to 18 August the claimant was on sick leave for most of it (and complains that the processes should not have continued during this period at all and there should have been no engagement with her at all : LOI 3.3.9). The respondent was still during this period dealing with her grievance appeal and for a period after that, there were without prejudice discussions and it appears a pause to await the outcome of those. While the claimant may not have asked for a pause, there is no evidence she objected to it and nor does she allege she refused to take part in those without prejudice discussions. The Tribunal find that the reason for that delay was not the content of the 1 August grievance (and it is not clear why the claimant asserts that any treatment relates to that grievance rather than the 2 August because Ms Farish and Mr Spencer, who were the subject of her 1 August grievance, were not involved in the process after suspension) but the complexity of the surrounding circumstances of this case including her ongoing complaints, her sick leave, the volume of correspondence and extensive nature of the complaints, and the without prejudice discussions in an attempt it would seem to resolve matters.

[899]The grievances were then allocated to Ms Thorpe.

[900]The claimant conceded in cross examination that she had submitted a large volume of information in relation to her grievances and that it was reasonable that the grievance officer would need to take time to ensure that any information provided was properly considered.

[901]The Tribunal find that Ms Thorpe set aside her diary and worked through the documents within a reasonable period, giving a summary of her findings internally on 26 September, it would take it seems a month to put those findings into an outcome letter.

[902]The respondent in submissions invites the Tribunal to find that there are no “set timelines” to its processes, albeit there are proposed aims. Understandably those aims will, as was the case here, have to shift due to variable factors, i.e., witness availability, annual leave, complexity of the issues etc.

[903]The Tribunal have considered there was a delay between the 26 September and 26 October.

[904]In terms of what inference, it may be reasonable to draw from that, the Tribunal take into account what happened in the intervening period. It seems prior to referring the grievances to Ms Thorpe there was without prejudice discussions which did not resolve the situation and on 20 September the claimant left the respondent’s employment. The Acas conciliation period ended on 30 September.

[905]The claimant does not identify who she says victimised her and did not put that allegation to the respondent’s witnesses.

[906]While there was a delay both in dealing with grievance 1 and 2 and a delay from when Ms Thrope gave her view to a letter being sent out confirming that the grievance was not upheld, the Tribunal have considered matters holistically in terms of whether it is appropriate to draw an inference in the absence of direct evidence of victimisation, reminding itself that it must look at the totality of its findings of fact and decide whether they add up to a sufficient basis from which to draw an inference that the respondent has treated the complainant less favourably on the protected ground. If such an inference is drawn the burden of proof shifts to the respondent who must then prove (on the balance of probabilities) a non-discriminatory reason. The Tribunal take into account the respondent’s own Guidance documents and the Acas Code.

[907]The Tribunal have also reminded itself that simply showing that the employer’s conduct was unreasonable or unfair is not, by itself, enough to raise an inference of discrimination and trigger the shifting of the burden of proof. Commissioner of Police of the Metropolis and anor v Osinaike EAT 0373/09: the EAT acknowledged that if unreasonable conduct occurred alongside other indications that there might be discrimination on racial grounds, that would alter the position, but those indications must relate to the prohibited ground.

[908]The Tribunal looking at all the facts, consider that there were valid grounds to suspend the claimant albeit it is critical of a lack of proper consideration of alternatives and/or discussion of those with the claimant. It also notes the offence appeared to be relatively straight forward and what followed was lengthy and voluminous grievances from the claimant, some relating to previous complaints of excessive workload or previous incidents dating back many months before, allegations not relevant to the nature of the appeal (e.g. the grievance appeal) and the respondent dealt with the original grievances and appeal in a timely manner, given the amount of documentation. The claimant was also off work sick for a period and seeking a stay of the disciplinary proceedings. This was not an easy case to deal with, the respondent was being faced with a considerable number of complaints, issues and accusations from the claimant. There was also a period of some without prejudice discussions, the nature of which have not been disclosed. Although the claimant was not still employed before the decision was set out in writing from Ms Thorpe, (choosing to resign before hearing the outcome) and the Grievance Policy and Guidance only applies to employees. The decision nonetheless was provided to her. Further, while the claimant claims a breach of the timings sets out in the Grievance Policy, there are no fixed times for providing a decision, other than an appeal. The Acas Code has no fixed period either.

[909]Even though there was delay in sending out her decision and Ms Thorpe had overlooked some new issues raised in the 18 August grievance, the Tribunal do not consider that looking at the case as a whole, it is reasonable to draw an inference that the delay or the failure to identify some new allegations, was because of, in the sense of significantly influenced by the grievance 1 itself (Court of Appeal in Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases

2005 ICR 931

, CA).

[910]The claimant also does not clearly identify what the detriment is, beyond the fact of the delay. The claimant had resigned by the time of the decision and this is not the final straw which she cites.

[911]The Tribunal take into account that Ms Thorpe was given her instructions from Mr Ing about investigating the August grievances and was asked only to identify if the 18 August raised any new issues. The claimant did not put it to Ms Thorpe that she had victimised her or discriminated against her despite it seems deficiencies in her review of what was new in the 18 August grievance. In terms of whether it is reasonable to draw any inference that Mr Ing was subjecting the claimant to a detriment in terms of the limitation on the instruction he gave to Ms Thorpe (including not only to carry out a desk based exercise but limit it to any new issues arising in the 18 August grievance), the Tribunal have regard to the fact that it was the 18 August grievance which made allegations against him personally, he would have been aware himself that there were new allegations but did not flag those, however, the Protected Act is not the 18 August

[912]Looking at the case overall, the Tribunal do not conclude that it would be reasonable to draw an inference that any shortcomings in the way Ms Thorpe conducted the grievance was deliberate and in any event because of the 1 August grievance or that Mr Ing limited the remit of the grievance process because of the Protected Act grievance which did not make allegations about him personally.

[913]The claimant has not established a prima facie case and in any event the Tribunal do not find that there was a causal connection between the Protected Act and the acts complained of. The Respondent failed to treat the Claimant’s allegations raised as formal grievances letters dated 1, 2 and 18 August 2023 in the same way as allegations raised informally by Miss Spencer.: 9.3.9

[914]The claimant only relies upon the grievance she raised on 1 August 2023 (grievance 3) as the Protected Act. The claimant considers that given she had been suspended, when she raised complaints about Ms Spencer, Ms Spencer should have similarly been suspended depending on a disciplinary process.

[915]The claimant raised that Ms Spencer was accusing her of being the anonymous sender on 7 June 2023 [page 142] of the Aj Vlad emails and alleged had decided to ruin her life, in the investigation meeting with Mr Clarke on 7 June.

[916]The difference between the claimant’s grievance about Ms Spencer and the complaint/grievance concerning the claimant’s conduct is dealt with above in this judgment and the same points are relevant to this complaint. The Tribunal accept on the evidence that it was those differences and not the Protected Act which led to the difference in treatment.

[917]The claim as put makes little sense in that the claimant’s case is that the one grievance on 1 August, led to the respondent treating her differently from how they would react to the grievance about Ms Spencer, and that this was because of the grievance itself.

[918]The Tribunal find that the reason why the respondent did not suspend everyone the claimant had raised allegations against, (of which there were numerous and not just Ms Spencer), was because of the different circumstances and because the essence of her complaint about Ms Spencer was that she wanted to get rid her and had made false accusations, however that Ms Spencer wanted her to be dismissed is not a basis for taking action against Ms Spencer because she felt aggrieved about the claimant’s conduct and/or believed (with some basis) that the claimant was behind the malicious anonymous emails. The respondent was not taking action because of Ms Spencer’s belief around the anonymous emails, but the clear evidence that the claimant had sent offensive messages to her.

[919]The claim has no merit and is dismissed. Constructive unfair dismissal The Respondent failed to implement the reasonable adjustments requested by the Claimant, as set out at paragraphs 7.4.1 to 7.4.3

[920]The Tribunal have as set out above in respect of the complaint brought under section 20/21 that there was no failure to make reasonable adjustments and therefore not being under a duty to do so, the failure does not the Tribunal find amount to or contribute to, a breach of the implied duty of mutual trust and confidence.

[921]The Tribunal conclude that adjustments were made and the claimant was able to effectively participate in the grievance appeal process and she has not proven that the process had the alleged impact on her health. The medical evidence simply does not support that finding.

[922]While the claimant produced one GP Fit note for 2 weeks, her own GP did not consider that she was unable to take part in the proceedings. She could have obtained a letter from her GP but did not do so and her GP did not assert that the claimant’s symptoms of Long Covid were exacerbated by the proceedings.

[923]The Tribunal were not impressed by the claimant’s evidence as to the impact of her condition, the medical evidence produced was not particularly helpful and during a period when she was claiming to be unfit to attend remote hearings, she was attending remote hearings for job interviews. The claimant did not present a convincing evidential and factual picture.

[924]The Tribunal do not find this allegation is proven and the respondent’s conduct did not amount to or contributed to a breach of trust and confidence but in any event, given the information available to it. The Respondent disregarded the Claimant's GP fit note and proceeded with the grievance processes, and previously stayed disciplinary process, and did not postpone the grievance or disciplinary processes or refer the Claimant to occupational health [9.3.4];

[925]As set out above the Tribunal do not conclude that the GP fit note was disregarded. The claimant was the Tribunal find, content with her experienced trade union support, to proceed with her various grievances and indeed complains at the same time about a delay in dealing with them. The disciplinary process was stayed and, in the event, never took place. The same reasoning as is set out above is applicable to this complaint.

[926]The Tribunal do not find this action amounted to or contributed to a breach of trust and

[927]The Respondent resumed the disciplinary process by issuing a letter dated 24 July 2023, which was sent on 1 August 2023 within three hours of the Claimant raising her grievance. The process had previously been stayed on 15 June 2023 [9.3.1];

[928]The Tribunal have addressed this point above earlier in the judgment. The disciplinary hearing was stayed pending the grievance the claimant had submitted. It would have been preferable to have confirmed to her before sending out the invitation that the stay had been lifted, however her complaint that this had anything to do with her 1 August grievance is not made out (as above).

[929]The Tribunal do not find this action amount to or contributed to a breach of trust and

[930]The Claimant was provided with inadequate time to prepare for grievance and disciplinary proceedings in August 2023 [9.3.2];

[931]The Tribunal have addressed this same point in detail above in the judgment. The claimant was not required to prepare for the disciplinary hearing because it was adjourned and never took place. As for the grievance proceedings, that is also addressed above and the Tribunal conclude that she had adequate time had she not decided to produce a voluminous document containing a lot of irrelevant information but further, she could but did not request more time

[932]The Tribunal do not find this action amount to or contributed to a breach of trust and

[933]The Respondent did not communicate with the Claimant about the contents of her fit note dated 2nd August 2023 or the registration of the sickness absence on the HR system, and any adjustments required, or conduct a return-to-work process to discuss the Claimant's wellbeing [9.3.5];

[934]The Tribunal have dealt with this complaint in detail above in the judgment and conclude that adjustments were made, there was no obligation to make any further reasonable adjustments because of her condition. Her GP Fit note was processed, if she wanted confirmation of that she could have asked for it, it is not a case of her asking for this and her request being ignored or refused (as she had when she sent other documents).

[935]The Tribunal do not find this action amount to or contributed to a breach of trust and The Respondent failed to implement adjustments requested by the Claimant and her request for accrued time off in lieu (TOIL) in August 2023 for additional working hours required for participation in disciplinary and grievance processes [9.3.6];

[936]In terms of TOIL, again to prevent needless repetition, that is deal with above in this judgment and those points apply here.

[937]The Tribunal do not find this action amount to or contributed to a breach of trust and The Respondent failed to complete formal grievance processes and provide fair and timely outcomes within the timelines set out in the grievance policy [9.3.8];

[938]The Tribunal find that the only significant delay was in respect of dealing with her 3rd and 4th grievances and some delay in sending out the outcome letter of the 5th

[939]The claimant submitted her last and 5th grievance by email on 21st August. She gave the respondent no time to deal with her grievance before she decided to accept new employment and then resign. The time it took Ms Thorpe to deal with her 21st August grievance was the Tribunal conclude not a reason for her resignation.

[940]In terms of her grievances of the 1st of August and 2nd August, the claimant was signed as unfit to work on 2 August and herself complains that while she was on sick leave the grievance processes should not have taken place. She started the Acas process on 18 August and there were then some without prejudice discussions around 23 August and then the claimant resigned on 23 August.

[941]The Tribunal find that in the circumstances and given the surrounding circumstances, the delay of itself did not amount to or was capable of contributing to a breach of the implied duty of mutual trust and confidence or that this was a reason for her decision to reason [see LOI 8.1.3]. The Respondent failed to investigate the Claimant's grievances made in August 2023 in a manner consistent with the way they investigated allegations against the Claimant made by Jesseca Spencer on 25 May 2023 [5.2.1];

[942]This has been dealt with earlier in this judgement, there were materially different circumstances and a rationale difference, in terms of the allegations and circumstances around the claimant’s August grievances and Ms Spencer’s. The Tribunal conclude that in the circumstances and given the surrounding circumstances, this was not capable of contributing to a breach of the implied duty of mutual trust and confidence but in any event was not a reason for her decision to resign. Corresponding and engaging with the Claimant about matters not relating to her fit note dated 2 August 2023 whilst the Claimant was signed off from work due to work related stress and long Covid from 02 to 16 August 2023 [8.1.3]; and

[943]This has been dealt with earlier in this judgement and the Tribunal do not conclude that in the circumstances and given the surrounding circumstances, the delay of itself did not amount to or was capable of contributing to a breach of the implied duty of mutual trust and confidence. Breaching the Claimant's terms of employment by including in the disciplinary process the Claimant's private WhatsApp correspondence conducted on personal devices outside of the workplace

[944]The claimant submits that the data protection team had discussed the claimant’s complaint about a data breach with HR, there was no independence in decision making and assertions for appeasement in processing the claimant’s private WhatsApp messages without a lawful basis or consent, is in violation of Article 8 of the Human Rights Act 1998.

[945]Further the claimant submits that she was not a regulated professional and was an ‘ordinary member of the public’ who may reasonably expect that a conversation which takes place within a WhatsApp group will remain private, and so the right to privacy is engaged. (BC and others v Chief Constable Police Service of Scotland and others).

[946]The claimant submits that she reasonably concluded the respondent no longer intended to act fairly or lawfully and her resignation without delay was a direct response to that fundamental breach.

[947]The respondent submits that under the Contract she was “required at all times to comply with the organisation’s Code of Conduct, as well as the Disciplinary Policy.” [Clause 16, P87] and the claimant conceded under cross examination that she worked towards the terms in her contract of employment, including, but not limited to, the provisions on data protection, [Para 18, P87].

[948]The claimant accepted that she was aware of the respondent’s Code of Conduct which stipulated that as an employee “You must not harass, bully or attempt to intimidate any person at any time.” “You must not discuss topics or display materials in the workplace which other people might reasonably find offensive.” “You must not use language, express views or display materials which other people might reasonably find offensive.” [P610, Clause 2.6].

[949]The claimant also had awareness of the disciplinary policy which confirmed that the policy “also extends to events outside of the workplace e.g. where you could be identified as working for MTVH” [Para 2, P631]. The respondent invites the Tribunal to find that this is not limited to “work-related events” as suggested by the claimant, but any instances where the claimant could be identified as working for the respondent. It is contended that the claimant’s reliance on “in the workplace” is misplaced and entirely ignores matters which occur outside of the workplace but can be shown to relate to work.

[950]The respondent points to certain concessions made under cross examination:• The following allegations would constitute gross misconduct in the workplace, “Abusive Aggressive, offensive, indecent, threatening behaviour or physical violence”, “deliberate falsification of records or documents” and “a serious breach of confidence.” [P638]. The respondent’s disciplinary policy is clear that the lists provided are not exhaustive;

• Despite having been repeatedly trained on data protection breaches and IT security, the claimant failed to either report to her manager or IT or block the four emails on 11, 12, 15 and 16 May 2023, [P103, P339. P340, P1045]. Whilst the claimant was on annual leave on 11 and 12 May 2023 and claims not to have seen her emails at this time, the claimant has provided no explanation for not reporting these incidents on 15, 16 and, the respondent will say, 17 May 2023. The respondent invites the Tribunal to find that the claimant only submitted the emails to IT on 17 May 2025 after Ms Spencer had reported this incident, [P101, Para 37, P389]. This is despite these emails being sent to her work account and being about her direct reports. It is noteworthy that almost as soon as this incident is reported by Ms Spencer, the claimant then immediately went off absent from work. The claimant claims that she was concerned about an impending restructure, but none of the respondent’s witnesses were aware of any purported restructure at this time;

• There is no evidence that in May 2023 the claimant reported that she thought these emails had been sent by Karen, Mr Bridge’s partner. The claimant further accepted that the content of the messages were only something, someone who worked for R could have produced and that it was “very unlikely for Karen to witness this”. The claimant accepted that these messages would constitute “at least misconduct”;

• The messages were predominantly about the claimant and her direct reports. The respondent invites the Tribunal to find that it is more than coincidental that these messages only started to be generated after C discovered that Ms Spencer, who C considered a close friend, was looking to leave the team and had not consulted C at all, [P774];

• She spoke with Mr Bridge on 16 May 2023. The claimant claimed that this discussion took place around 11:00-12:00hrs yet still did not take any steps to report the incident. R further invites the Tribunal to infer that the claimant’s decision to title the alleged meeting at [P770] “Data Breach”, evidently shows that the claimant knew this was a serious issue which should have been reported. The respondent further invites the Tribunal to prefer the notes of Mr Bridge who explained that he told the claimant to report the issues, but that the claimant refused to do so, [P313]. Indeed, the contemporaneous evidence supports such an assertion;

• The claimant alleged that she spoke with Ms Farish on 17 May 2023 before going off sick, but the respondent would highlight that there isn’t a single shred of evidence to support this assertion. Notably, the account which the claimant provided to the Tribunal, for the very first time in evidence, was entirely omitted from the claimant’s comprehensive witness statement (comprising no less than 330 paragraphs). The claimant claims this was a short meeting which did “not last long”, took no notes and did not even forward the emails to Ms Farish. The claimant’s evidence is simply not credible; and

• If a manager had sent these types of messages to their direct reports this was something which would constitute gross misconduct. The WhatsApp messages

[951]It is submitted that it is significant that Ms Spencer, Mr Bridge and the claimant were in a group WhatsApp chat titled “MTVH Energy Team”, a direct reference to the respondent and contained the respondent’s logo as the group’s picture.

[952]Whilst some non-work-related matters were exchanged on the group, e.g. meeting up with one another etc. work-related matters were clearly discussed, [P139].

[953]Mr Clarke was categoric in his evidence that the content of the messages provided contained “work material” that it talked about “work life and things that had happened in work”. The respondent contends that it is irrefutable to suggest that this was a “private communication unrelated to work matters.” This is further evidence by the fact that this chat was also used to discuss “work processes” [page 127].

[954]The claimant, herself brought work related matters in the WhatsApp group. The messages sent in the early hours of the morning on 17 May 2023, included a screenshot of the teams work chat and attaching offensive and explicit song lyrics and materials [page 342-348].

[955]The claimant latterly accepted that these messages sent on 17 May 2023 were about the claimant feeling betrayed by Ms Spencer because of her comments at work about the claimant’s treatment of her own line manager, and the Tribunal conclude that this was all work related albeit they were sent outside of working hours.

[956]The respondent asserts it is simply not credible that the claimant was not aware of these song links, because the claimant had submitted them herself and/or she permitted a friend to access her pin locked device and send them. In any event the respondent submits that claimant accepts she deleted these messages between 03:15hrs and 06:49hrs. In order to delete a WhatsApp message, you need to click on it. Equally the messages from the sender to the recipient are in a different colour and so it would have been very clear to the claimant that these messages had been sent from her device.

[957]The claimant showed no apology, empathy or remorse for her actions when Ms Spencer raised this with the claimant, [page 347-8].

[958]The claimant also failed to suggest that these messages had been sent in error/had not been intended.

[959]The respondent invites the Tribunal to draw inference from the claimant’s failure to call Sonny as a witness to this case and/or produce a statement at any stage of the disciplinary process, that this is because the events purported by the claimant are simply not true and that the claimant intentionally submitted these messages herself.

[960]It is submitted that it appears that the claimant was under the mistaken view that if she deleted the offensive material then there would be no proof as to her conduct. The respondent invites the Tribunal to find that the claimant sent these messages and that once she realised this was being escalated by Ms Spencer and Mr Bridge, in respect of allegations which could constitute gross misconduct, the claimant started to delete evidence and fabricate alternative events in order to hamper any subsequent investigation. The respondent invites the Tribunal to find that this was a calculated decision by the claimant. The respondent contends this position is reinforced by C’s admission during the investigation hearing where the claimant states “if I knew that my private conversation would have been used, then I wouldn’t have done this.” [P141].

[961]After the messages were reported on 25 May 2023, the respondent contends that it was reasonable and appropriate to suspend the claimant in accordance with its disciplinary policy, [11.1-2, page 645] and the claimant’s Contract [clause 13, page 86].

[962]The respondent further contends that it was reasonable for the investigation to conclude that the matter should proceed to a disciplinary hearing for further determination and that there is no sensical argument that suggests claimant’s data had been breached. The claimant had knowingly engaged in a works group chat, posted inappropriate messages aimed at her direct reports and then latterly sought to retreat from her conduct by suggesting this was outside the scope of employment. The respondent contends that the claimant’s position is both misconceived and not credible.

[963]The respondent further contends that if the claimant’s case were taken at its highest it would mean that managers could post, in a group chat with their direct reports, whatever they like without consequence and hide behind the ruse that this was not in their capacity as a manager. The respondent contends that this cannot be an excusable practice, especially, where in this case the group chat was evidently set up in contemplation of work-related matters, at least from time to time, being discussed in this setting [Para 143 C WS]. The claimant’s attempts to blur the boundaries is a failure by the claimant and not one which can permissibly be hid behind as “private communications.”

[964]The respondent invites the Tribunal to find that the steps taken by the respondent cannot, on any reasonable construction, amount to a fundamental breach of contract. The respondent invites the Tribunal to find that the claimant had form for exhibiting inappropriate behaviours in the workplace. Such examples include, but are not limited to, both her direct reports complaining about how the claimant would suggest that it was within her “power” to exit people from the business if she wished to, [page314, P318], and the claimant referring to Mr Bridge’s partner as a “dwarf”. Whilst the claimant sought to suggest, in her evidence, that this was something which both she and Ms Spencer did, not only is this entirely omitted from Mr Bridge’s notes, [page316] but is also entirely contrary to the claimant’s own admission in her email to Mr Martin on 2 August 2023, [Para 73, page 397].

[965]The respondent also refers to the email the claimant sent seeking to exclude Ms Spencer from dealing with a third-party client [page 324-6] and submits that this conduct was underhand and at worst intentional sabotage.

[966]Mr Martin explained that if the claimant had not been suspended he would have been “concerned about intimidation or interference…It seemed there was lots of stress and anger in the situation and taking people away from this generally seems to be the right thing to do.” The last straw

[967]The claimant asserts that the final straw in her resignation was when the claimant received an email from the respondent's data protection team sent on 21 August 2023.

Legal Principles

[968]BC and others v Chief Constable Police Service of Scotland and others

[2018] CSOH 104

: The claimant refers to this case in submissions. In this Scottish case the court held that the petitioners who were police officers had no reasonable expectation of privacy in respect of the Whatsapp messages due to their status as police officers subject to professional standards and the nature of the messages. The disclosure and use of the messages in misconduct proceedings had a clear and accessible legal issues and was necessary and proportionate under Article 8.

[969]The Tribunal have had regard to cases where inoffensive comments on a social networking site used for personal, not work, have been held not to justify disciplinary action. The High Court in Smith v Trafford Housing Trust

2013 IRLR 86

, ChD: The Trust demoted the employee to a non-managerial position, with a 40 per cent reduction in pay, for posting comments on his Facebook page indicating his disapproval of gay marriage in church. The employee continued to work for the Trust in his new job and brought proceedings in the High Court, claiming that his demotion and pay cut amounted to a breach of contract. The Court held that the employee’s behaviour did not amount to misconduct and so there was no contractual basis therefore for the demotion. While it was true that the employee’s Facebook page identified him as a Trust employee, the Court rejected the Trust’s argument that the comments had the potential to damage its reputation. It could not see how the employee’s moderately expressed views on gay marriage in church, on his personal Facebook page and out of working hours, could sensibly lead any reasonable reader to think worse of the Trust for having employed the employee in a managerial role. Nor had he, given the social context, illegitimately promoted his religious and political views or failed to treat his colleagues with respect and dignity. Human Rights

[970]The relevant Articles under the European Convention on Human Rights (ECHR) Article 8 1Everyone has the right to respect for his private and family life, his home and his correspondence. 2There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 10

[971]Freedom of expression 1Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

[972]Application of Article 8 : Pay v United Kingdom

2009 IRLR 139

, ECtHR: “An interference with the rights protected by that article can be considered justified only if the conditions of its second paragraph are satisfied. Accordingly, the interference must be “in accordance with the law”, have an aim which is legitimate under this paragraph and must be “necessary in a democratic society” for the aforesaid aim… The applicant does not dispute that his dismissal was lawful. In addition, he appears to concede that it pursued a legitimate aim, namely the protection of the reputation of the LPS. However, he claims that the measure was disproportionate to that aim…”

[973]Whether an employee has a reasonable expectation of privacy in respect of his or her posts on social media such as to allow him or her to rely on Article 8 was considered by an employment tribunal in Crisp v Apple Retail Ltd ET Case No.1500258/11. On the Article 8 point, the tribunal noted that, although the claimant had set up his Facebook account to be visible only to his ‘friends’, he was well aware that Facebook posts can easily be passed on by those who have access to them. Indeed, details of his comments were provided to the company one of his Facebook ‘friends’. In these circumstances, the claimant did not have a reasonable expectation of privacy in respect of his Facebook posts and Article 8 was therefore not engaged.

[974]In Teggart v TeleTech UK Ltd NIIT 704/11: the Northern Ireland industrial tribunal held that the dismissal of an employee for making vulgar comments about the promiscuity of a female colleague on his Facebook page was reasonable in the circumstances and was therefore fair. Although the comments did not bring the employer’s reputation into serious disrepute, the harassment of a colleague was sufficiently serious on its own to justify the dismissal of the employee for gross misconduct. Furthermore, having made his comments public, the employee had no reasonable expectation of privacy for the purposes of

Article 8 of the European Convention on Human Rights

and its decision referenced the following authorities: “(12) X v Y

[2004] EWCA Civ 662

[2004] IRLR 625

The Court of Appeal had to consider the interrelationship between the Human Rights Act 1998 and the Employment Rights Act 1996 . It considered the position to be that an employment tribunal when applying section 98(4) ( Article 130(4) Employment Rights Order (Northern Ireland) 1996 ) was required to give effect to convention rights under the Human Rights Act 1998 section 3 . Furthermore, there was no legal justification for treating public sector and private sector employees any differently. This was for two principal reasons; the first was that HRA 1998 s3 applied directly to the Employment Tribunal itself. Secondly, there was no justification in principal as to why private sector employees should not also enjoy convention rights in an unfair dismissal context. In X v Y Mummery LJ provided the following guidance to employment tribunals whenever HRA 1998 points were an issue:- “Whenever HRA points are raised in unfair dismissal cases, an employment tribunal should properly consider their relevance, dealing with them in a structured way, even if it is ultimately decided that they do not affect the outcome of the unfair dismissal claim. The following framework was suggested:(1) Do the circumstances of the dismissal fall within the ambit or one or more of the articles of the Convention? If they do not, the Convention right is not engaged and need not be considered.

(2) If they do, does the state have a positive obligation to secure enjoyment of the relevant Convention right between private persons? If it does not, the Convention right is unlikely to affect the outcome of an unfair dismissal claim against a private employer.

(3) If it does, is the interference with the employee's Convention right by dismissal justified? If it is, proceed to (5) below.

(4) If it is not, was there a permissible reason for the dismissal under the ERA 1996 , which does not involve unjustified interference with a Convention right? If there was not, the dismissal will be unfair for the absence of a permissible reason to justify it.

(5) If there was, is the dismissal fair, tested by the provisions of ERA 1996 s98 , reading and giving effect to them under HRA 1998 s3 so as to be compatible with the Convention right?” ( Harvey on Industrial Relations and Employment Law D1 [981] and [982].) (13) The Tribunal was referred to three decisions at first instance of employment tribunals in England and Wales, Gosden v Lifeline Project Ltd (Case No: 2802731/09) , Preece v J D Wetherspoon Plc (Case No: 2104806/10) and Stephens v Halfords Plc (Case No: 1700796/10) . In Preece the claimant worked in a pub and was found to be fairly dismissed for offensive comments that she posted on Facebook concerning customers although the claimant did not mention the workplace by name. The comments she made were clearly in relation to her work. In that case, the respondent concentrated on the part the claimant had played and not the part played by others in replying to her posts. In Gosden the tribunal held that the claimant was fairly dismissed for passing an email onto a third party (not an employee) who subsequently passed it into his workplace. It was found that the email was clearly offensive and was not private as it had a statement stating, “it is your duty to pass it on”. In Gosden the tribunal considered the issue of privacy under the Human Rights Act 1998 and held that it had no application as the respondent was not a public authority. In Stephens the claimant created a Facebook page entitled, “Halford workers against working three out of four weekend” recording his dissatisfaction at proposed workplace changes. The claimant realised that the page breached the company's policy and quickly took it down. The page was not grossly offensive. He fully acknowledged that he should not have done what he did and gave a full apology saying in mitigation that he had been off ill with stress and his judgment had been clouded. The claimant also confirmed during the disciplinary process that it would never happen again. Application of the Law and Findings of Fact to the Issues 6.

• (1) The tribunal is satisfied that the respondent has identified the reason for the claimant's dismissal namely that he had committed an act of harassment against an employee and brought the company into disrepute.

• (2) The tribunal is further satisfied that the reason is a conduct issue which is one of the statutory reasons that can render a dismissal fair. The Investigation

• (3) The tribunal acknowledges that there were deficiencies in the investigatory procedure followed in this case as set out below:-… (10) Accordingly, the conclusion arrived at by the disciplinary panel that the claimant had committed an act of harassment against A is a conclusion that the disciplinary panel was entitled to make on the evidence before it. .. Human Rights Act 1998 (17) Following the approach set out by the English Court of Appeal in X v Y the tribunal concludes that the Convention rights relied on by the claimant, Articles 8, 9 and 10 are not engaged. In so concluding, the tribunal had regard to the following matters:- Article 8 (a)When the claimant put his comments on his Facebook pages, to which members of the public could have access, he abandoned any right to consider his comments as being private and therefore he cannot seek to rely on Article 8 to protect his right to make those comments… Article 9 (b) The tribunal is satisfied that the “belief” referred to in Article 9 does not extend to a comment about the promiscuity of another person. In the tribunal's view, belief, in keeping with the remainder of Article 9 , is intended to refer to a philosophy, set of values, principles, or mores to which an individual gives his intellectual assent or which guides his conduct or behaviour. “The limits to this concept lie in a requirement of a serious ideology, having some cogency and cohesion, …” (Employment Law and Human Rights, Second Edition, by Robin Allen QC, Rachel Crasnow and Anna Beale) . Article 10 (c) The right to freedom of expression, as set out in Article 10 , brings with it the responsibility to exercise that right in a way that is necessary for the protection of the reputation and rights of others. The right of freedom of expression does not entitle the claimant to make comments which damage the reputation or infringe the rights of A. The claimant does not assert that A was promiscuous but states that his comments were a joke or done for fun. A's reputation has been harmed on the basis of a joke or fun. Furthermore she has the right not to suffer harassment. 7. Accordingly, the claimant's claim for unfair dismissal is dismissed.” Tribunal stress Where disciplinary action leads to dismissal, the question of whether dismissal was fair in accordance with S.98(4) ERA may have to be considered in the light of the employee’s Article 10 rights. This arguably includes the right to moan publicly about one’s working conditions and/or colleagues, so long as it does not involve damaging or libellous statements. However, even where a Convention right has been interfered with, the employer’s actions may be justified — for example, because of the risk of damage to the employer’s reputation….” Tribunal stress GDPR/ Data Protection Act 1998]

[975]An employee might also argue that relying on social media pages or Whatsapp messages, the employer is in breach of the data protection principles contained in the retained EU law version of the EU General Data Protection Regulation (No.2016/679) (GDPR) and the Data Protection Act 2018 (which repealed and replaced the Data Protection Act 1998).

[976]In its social media guidance for employers, Acas notes that employees should be warned if an employer intends to monitor their social media pages and states: ‘An employer should try to find alternatives to checking staff use of social media, if it can. It needs to justify the use of monitoring, showing that the benefits outweigh any possible adverse impact.’

[977]The Information Commissioners website provides guidance around the seven main principles:: At its core, data protection has seven main principles. They are: 1. Lawfulness, fairness, and transparency – using personal data in a way that complies with the law, and in a way your customers and staff expect and have been told about. 2. Purpose limitation – only use personal data for the reasons you collected it, and not for something extra or unrelated. 3. Data minimisation – limit the amount of personal data you collect to what you need. If you only need basic contact details of your customers to run your accounts, don’t ask for more information. 4. Accuracy – the personal details in your records should be accurate and kept up to date. 5. Storage limitation – only keep personal data for as long as you need it. When you no longer need it, it should be securely destroyed or deleted. 6. Integrity and confidentiality (security) – personal data needs to be kept securely. You need to make sure that the details of your staff and customers is protected and that you can access those details. 7. Accountability – this underpins the other six principles. It’s about taking responsibility, having appropriate measure in place, and keeping records to demonstrate how you achieve data protection compliance. Company owners should hold themselves accountable for getting it right.

[978]The claimant’s complaint can only as pleaded relate to the first and fifth Principle, the lawfulness, fairness and transparency and storage limitation and storage. Lawful Basis Whenever you collect or use personal information, you must have a valid reason for doing so. This reason is known as a ‘lawful basis’. There are six lawful bases:• consent;

• contract;

• legal obligation;

• vital interests;

• public task; and

• legitimate interests. None of the lawful bases are ‘better’ or more important than any of the others. You must identify the most appropriate one for what you’re doing with people’s information. You may have a different lawful basis for each of your different reasons or purposes. Whichever lawful basis you choose, your collection and use of people’s information needs to be proportionate and necessary to achieve your specified purpose. You must be able to justify what you’re doing, and why. Consent Consent is appropriate when you can offer people real choice and control over how you use their information. If you’re relying on consent, it must be:

• freely given (and usually not as a precondition of a service);

• specific and informed;

• indicated by a positive action to opt-in (which means you can’t use pre-ticked boxes or other types of default consent);

• separate from your other terms and conditions wherever possible;

• easy for the person to withdraw at any time; and

• kept under review and refreshed if anything changes. Contract

[979]This would be appropriate when you need to collect or use a person’s information to deliver a contractual service to them, or because they’ve asked you to do something before entering into a contract. For example, if a prospective client asks for a quote for your services, you’ll need to handle a certain amount of their information to provide this. Legal Obligation

[980]This would be the most appropriate lawful basis if you’re required to collect or use personal information in order to comply with the law. For example, there may be specific legislation in place that directs you to process personal information, like a requirement to report a serious accident at work under health and safety legislation. Vital Interests You can rely on vital interests if you need to use or share personal information to protect someone’s life. For example, giving relevant information to the ambulance crew who are helping someone who’s unconscious. Public Task This lawful basis is used by public authorities or organisations carrying out specific tasks in the public interest. This lawful basis may be appropriate if you work on behalf of a public authority. Legitimate Interests This is where using personal information is in the legitimate interests of yourself, an individual or a third party, and can include commercial interests or wider benefits for society. You must be able to justify this. To rely on this lawful basis you must:• identify a legitimate interest;

• show the collection and use of personal information is necessary to achieve this; and

• balance your own or someone else’s interests against the person’s interests, rights and freedoms.

[981]The website also provides an example of applying a 3 part test of : (1) The purpose test (identify the legitimate interest).(2) The necessity test (consider if your use of the personal information is necessary and the (3) The balancing test (consider the person’s interests): Example A company is deciding whether to dismiss one of their employees for misconduct. The company decides that they need advice about employment law. They want to send details of the employee’s alleged misconduct to their external legal advisors. Purpose test: The company needs to be able to manage the performance of their workforce and ensure employees act appropriately. They also need to ensure that any action they take is in accordance with their employment law obligations. This is in the legitimate interest business interests of the company. It’s also in the legitimate interests of employees that the company acts fairly and within the law in their dealings with employees. Necessity test: It is necessary to obtain external legal expertise about the alleged misconduct and the relevant legal framework for this purpose. The company will only share the personal information that is relevant to the allegations with their legal advisors, subject to professional confidentiality obligations. Balancing test: The information concerns the employee’s professional life rather than their private life. There is a clearly defined employer-employee relationship. Employees would reasonably expect the company to: process details of professional conduct to manage performance; and seek legal advice when dealing with potential dismissals. Sharing the information might contribute to significant harm to the employee if the advice supports dismissal. But it is also likely to help to ensure that the decision is not arbitrary or unlawful. The personal information is shared subject to professional confidentiality obligations. These provide a safeguard against other risks or loss of control over the information. The outcome for the company, having considered all the relevant factors, is that the employee’s interests do not outweigh their legitimate interests in obtaining legal advice. The company relies on the legitimate interests lawful basis to use the personal information.

[982]The Supplementary Guidance to the Information Commissioner’s ‘Employment Practices Code’, which is no longer available on the Information Commissioner’s Office website, stated that: ‘If monitoring is to be justified on the basis that it is necessary to enforce the organisation’s rules and standards, these rules and standards must be known and understood by workers’ (para 3.1.3). The Guidance recommended setting out any applicable rules in a policy that was clearly communicated to employees. It continued: ‘Either in this policy or separately, the employer should go on to set out the circumstances in which monitoring may take place, the nature of the monitoring, how information obtained through monitoring will be used, and the safeguards that are in place for the workers who are subject to the monitoring.’ For more information about the UK GDPR and the 2018 Act, reference should be had to the Information Commissioner’s Office website. Note that changes to data protection law are made by the Data (Use and Access) Act 2025, which received Royal Assent on 19 June 2025. The majority of the Act’s provisions come into force on 20 August 2025.

[983]This is a case however not where the employer has been monitoring but where the messages showing that the claimant may have engaged in misconduct have come to the respondent’s attention through disclosure by another employee. Convention Rights

[984]The Tribunal conclude that there was good reason for the respondent to believe that in the circumstances the WhatsApp group was potentially related to work because; the members were exclusively work colleagues, they connected this social media platform to the respondent through adopting the respondent’s Logo and its name and as a minimum the claimant herself had introduced work related matters into the chat. The claimant had been made aware through the Contract that conduct on social media, (with Facebook given as merely an example) may give rise to misconduct and gross misconduct [page 638].The Tribunal therefore do not consider that the claimant had an expectation of privacy in those circumstances.

[985]The claimant was not a peer simply having an innocuous moan about a peer, she was a manager sending offensive messages/song lyrics to her direct reports because of something they had said at work about her treatment of another manager. She was in a position of authority over these two individuals and it appeared was subjecting them to harassing emails because something they had discussed at work privately had upset and offended her.

[986]In terms of ‘the protection of the rights and freedoms of others’ pursuant to Article 8, the claimant’s direct reports had the right not to be harassed by their manager.

[987]The claimant does not appear to have considered that Ms Spencer and Mr Bridge had an expectation of privacy when she reposted the Teams chat as a screenshot onto the WhatsApp Group.

[988]In terms of Article 10; the messages sent from the claimant’s phone was not an expression of the sort of opinions protected in Article 10. It was an offensive message intended to simply insult and cause hurt.

[989]If the claimant maintains, as she does, that the messages that the messages were from Sonny, that would appear to defeat her argument that it was a breach of her right to privacy to take those messages into account, rather than Sonny’s . Putting that aside, the Tribunal consider that there was no reasonable expectation of privacy and it was reasonable for the respondent to investigate and consider these issues further at a disciplinary hearing. GDPR/DPA

[990]The claimant was warned that gross misconduct can take place on social media websites and with the changing nature and different types of social media platforms it is not realistic to expect an employer to set out every type of platform that may be used and nor does the Tribunal consider that is required in order to give employee’s notice of what may amount to misconduct. The Tribunal consider that WhatsApp is a social media platform, it is not simply a messaging service, it is a platform from which photographs and videos can be shared.

[991]The claimant had consented to the respondent collecting data about her and processing it for management purposes [para 18 of the Contract].

[992]The Tribunal do not accept the claimant’s view that the breach of the Disciplinary Policy and Guidance only extends to “work-related events”. It is made clear that it applies where there is a formal link to work and any instances where the claimant could be identified as working for the respondent. The Group WhatsApp was entitled “MTVH Energy Team” and had the company logo. If the claimant, Mr Bridge and Ms Spencer considered their connection via this platform was not in any way connected to their working relationship, then why link it in this way to the respondent?

[993]There were non-work-related matters discussed. The respondent had been informed by Mr Bridge and Ms Spencer that there had been work related messages put on the group chat but further the offensive song lyrics were sent because of something that had happened at work i.e. the work Teams chat and its comments about the claimant’s conduct at work.

[994]Article .4(11) of the GDPR it provides: “Consent of the data subject shall mean any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her”. Tribunal stress

[995]The respondent in its communication with the ICO relied upon the lawful basis of contract. Given the terms of the Disciplinary Guidance and Policy, the Tribunal consider there were grounds for a reasonable belief that this would apply. However, an employer may rely on a number of grounds and in the circumstances the Tribunal consider that there would also be a legitimate interest defence in terms of protecting the wellbeing of the claimant’s two direct reports and to ensure employees behave appropriately. It was necessary to consider the content of the messages in order to meet that legitimate interest and the impact on the claimant was outweighed the Tribunal conclude, by the impact on her two direct reports.

[996]The Tribunal consider that it was reasonable for the investigation to conclude that the matter should proceed to a disciplinary hearing otherwise it would be to fail to protect an employee from being sent offensive messages from their line manager because the messages were sent out of working hours and not on a work-related social media platform but relate to events which have happened at work.

[997]The Tribunal conclude that the respondent in including those Whatsapp messages in the disciplinary process did not commit a breach of the DPA/DDPR or the claimant’s Article 8 or 10 . Further the Tribunal conclude that the respondent had lawful and reasonable cause to act as it did in conducting a disciplinary process. The claimant’s arguments about the nature of the WhatsApp messages could have been further discussed and considered at the disciplinary hearing. The last straw

[998]The last straw does not, of itself, have to amount to a breach of contract, still less be a fundamental breach in its own right — Lewis v Motorworld Garages Ltd

1986 ICR 157

, CA.

[999]The Court of Appeal in Omilaju v Waltham Forest London Borough Council

2005 ICR 481

, CA, confirmed that, to constitute a breach of trust and confidence based on a series of acts (or omissions), the act constituting the last straw does not have to be of the same character as the earlier acts, and nor does it necessarily have to constitute unreasonable or blameworthy conduct, although in most cases it will do so. It must contribute, however slightly, to the breach of the implied term of trust and confidence. An entirely innocuous act on the part of the employer cannot be. 1000. In Kaur v Leeds Teaching Hospitals NHS Trust

2019 ICR 1

, CA, the Court of Appeal clarified that an employee who claims unfair constructive dismissal based on a continuing cumulative breach is entitled to rely on the totality of the employer’s acts notwithstanding a prior affirmation of the contract, provided that the later act, the last straw, forms part of the series. The effect of the final act is to revive the employee’s right to terminate his or her employment based on the totality of the employer’s conduct, if the final straw incident is not itself so damaging as to comprise a repudiatory breach in and of itself. If, however, it does comprise a repudiatory breach in and of itself and thereby triggers the employee’s resignation, there will be no need for the employee to rely on the last straw doctrine as the basis for claiming that he or she has been constructively dismissed. 1001. EAT in Lochuack v London Borough of Sutton EAT 0197/14. There, Mr Justice Langstaff (the then President of the Appeal Tribunal) observed: ‘The issue which needs to be addressed is whether there has been a repudiatory breach… If some of the alleged incidents are found not to have occurred, a tribunal must have regard to those which it has found did occur and ask objectively whether, in the particular context of the case, they amounted to a breach of contract and whether, in the particular context of the case, that breach was so serious as to be repudiatory’. 1002. The claimant asserts that the final straw in her resignation was when the claimant received an email from the respondent's data protection team sent on 21 August 2023. 1003. The Tribunal are not persuaded that this letter /decision played any part in the claimant’s decision to resign but conclude on the findings of fact, that the claimant had made up her mind to resign prior to receiving that letter. She had contacted Acas and started early conciliation on 19 August 2023 by which time the Tribunal conclude on a balance of probabilities, she had been informed that she had been successful in the 18 August interview. It is more likely than not the Tribunal conclude that by 21 August, the claimant had received her contract of employment from her new employer and was content with its terms and had made up her mind, regardless of the content of the 21 August letter, to accept the new job. 1004. Had the outcome of the data protection issue been a reason, the Tribunal also take into consideration that she did not await the response/decision from the ICO. 1005. The Tribunal do not find that any of the earlier alleged breaches have been made out and do not find in any event, that of themselves they would amount to a breach of the implied duty of mutual trust and confidence. 1006. The Tribunal are concerned that the respondent failed to give proper consideration to alternatives before suspension. In Gogay v Hertfordshire County Council

2000 IRLR 703

, CA, the Court of Appeal considered that the question was therefore whether there was ‘reasonable and proper cause’ for the Council’s action in suspending the employee. The Court of Appeal in Agoreyo v London Borough of Lambeth

2019 ICR 1572

, CA: held that Foskett J had fallen into the trap of interfering impermissibly with the trial judge’s careful findings of fact. Lord Justice Singh further held that Foskett J had erred by introducing a test of necessity when considering whether the teacher’s suspension had breached the implied term of trust and confidence: the only relevant question in such a case is whether the employer had reasonable and proper cause to suspend the employee, not whether the suspension was necessary. 1007. The respondent’s case is not that it decided that this was not a case where it was appropriate to consider alternatives to suspension, its case is that it did so. However, the Tribunal is not convinced that it did. However, the failure to consider alternatives was not pleaded as an act relied upon as part of the constructive unfair dismissal claim outside of the allegation of a difference in treatment in the way her grievances were dealt with [LOI 33.8] . For the reasons set out above the Tribunal have not found that her complaint of a difference in treatment is made out, there were not only nondiscriminatory reasons for the difference but a rational and reasonable distinction for treating the claimant’s case differently which does not amount to or contribute to a breach of the implied term of mutual trust and confidence but in any event there was reasonable and proper cause for the respondent’s conduct in terms of any difference in treatment. 1008. The Tribunal conclude that the claimant was not dismissed, but she resigned before she was dismissed, because she was well aware of how compelling the evidence was against her and therefore left as soon as she had secured new employment. 1009. The claim of constructive unfair dismissal is not well founded and is dismissed. Polkey/contributory fault

[1010]If, which is denied, the dismissal was found to have been unfair, the respondent submits that the Tribunal should apply a percentage reduction of 100% due to contributory fault and/or Polkey on the grounds that there was a real likelihood that the claimant would have been dismissed for gross misconduct due to the seriousness of the allegations, that any deficiencies in the process would not be likely to render the dismissal unfair, bearing in mind that the issues which were taken forward were within the claimant’s s knowledge and the claimant would have had the opportunity to provide representations in response to those point (Alom v Financial Conduct Authority

[2025] EAT 138

); 1011. The respondent further submits that the claimant made a concession that the relationship had irretrievably broken down between the claimant and her direct reports, page 318] and conceded in her responses to Mr Martin on 2 August 2023 that “regardless of whether the allegations made against me being true or false, it would have made it difficult for all parties involved to continue working closely together” [Q4, P400]; 1012. The respondent invites the Tribunal to find that it is more than coincidental that at around the time the claimant became aware that Ms Spencer and Mr Bridge had applied for other roles, anonymous messages about Ms Spencer and Mr Bridge started to circulate, [page 774/ P886]. The respondent invites the Tribunal to find that the author of these emails, which reference the workplace, are about the claimant’s direct reports and whom the claimant would have had the opportunity to gain IT access to, on the balance of probabilities, were generated by the claimant (Polkey/Contributory fault). 1013. The respondent also mentions that the claimant covertly recorded meetings with without permission which is prohibited under the disciplinary policy, [page 631] and which the claimant conceded is a matter which could constitute gross misconduct, [ page 638]. It was open to the claimant to request for these meetings to be recorded in a transparent manner, but she failed to do so. 1014. The Tribunal conclude that on a balance of probabilities, the claimant herself sent the WhatsApp messages and not her friend Sonny. Her explanation of having deleted in the early hours of the 17 May the messages without reading the messages she alleges Sonny had sent or clarifying with Ms Spencer what she meant when she emailed her on the morning of 17 May referring to the song lyrics, was not in the least bit convincing. 1015. The Tribunal would have gone on to consider a Polkey reduction and/or reduction for contributory fault, depending on the basis of the finding of constructive unfair dismissal. 1016. The Tribunal do not conclude on a balance of probabilities that the claimant sent the Aj Vlad emails and while there is a possibility that she did, it cannot on the evidence make a finding that it is more likely than not. It does however have no hesitation in finding on a balance of probabilities that the claimant was responsible for sending the WhatsApp Group messages attaching the offensive song lyrics on 17 May 2023 and any compensation would have taken that conduct into consideration and a very significant deduction is likely to have been applied, had the constructive unfair dismissal claim succeeded.