Ms S Fox v South Essex Academy Trust: 3200536/2017

EMPLOYMENT TRIBUNALS

Case No 3200536/2017

Between

Ms S FoxClaimant

South Essex Academy TrustRespondent

Before

Employment Judge Ross

Members

Ms M Long

Mr D Ross

In person for claimant

Mr Heard (instructed by Counsel) for respondent

Date 27 July 2021

JUDGMENT

The unanimous judgment of the Employment Tribunal is that:-

[1]The complaints of disability discrimination under sections 20- 21 Equality Act 2010 are not upheld.

[2]The complaints of harassment contrary to section 26 Equality Act 2010 are not upheld.

[3]The complaint of unfair dismissal is not upheld.

[4]It is declared that the Respondent made unlawful deductions from the Claimant’s wages between 1 September 2016 and 15 May 2017.

REASONS

Introduction

[1]The complaints and issues were set out in an agreed List of Issues. During the evidence of the Claimant, it was agreed that the issue at 6e had been included by mistake. Further, the Claimant explained that the allegation within issue 19 had been resolved by further disclosure (the Claimant having raised this allegation in good faith); and, accordingly, this complaint (a claim that the sick pay had been reduced so as to amount to an unlawful deduction) was dismissed on withdrawal.

[2]The Tribunal also noted the further particulars of the complaints [51-53] which Mr. Heard explained had been used to draw up the List of Issues. The further particulars provided further information upon some of the issues, such as the complaints of the failure to make reasonable adjustments. We directed ourselves to these particulars when making our findings and conclusions. The hearing and adjustments made

[3]The nature of the Claimant’s impairment is set out below in detail. At the outset of the hearing, the Tribunal investigated what if any adjustments were sought by the Claimant. It was agreed that there would be both a morning and afternoon break in order to overcome any disadvantage that the Tribunal’s usual hours would produce.

[4]On the second day of her evidence, an adjustment sought was that the witness stand desk was moved by about 45 degrees so that the Claimant could face the Tribunal more directly, rather than the Public seats (there was no suggestion that the Respondent’s witnesses had done anything to provoke this). The Claimant was distressed particularly during her evidence on Thursday 20th September and there were two breaks during the morning session. This day of hearing ended at 12.50 (it was due to end at 1300 due to other commitments of the Tribunal in any event).

[5]On 21st September, during the morning session, there were two breaks. The second was at the end of the main cross-examination, when the Claimant was released from her affirmation to see if the parties could agree that some further disclosure (produced late by the Respondent) could be agreed to be added to the bundle and to see whether the unlawful deduction from wages issues (issues 19-20) could be agreed.

[6]After this break, the parties indicated that issue 19 was resolved (see above) but that issue 20 remained in issue. Mr. Heard required further instructions to ask further questions on this issue; a further adjournment was refused as contrary to the overriding objective but the Tribunal permitted the Respondent to re-open cross-examination limited to this issue after lunch, having first asked its own questions.

[7]The Claimant completed her evidence at about 3pm on Friday 21 September. When asked whether she had anything to add by way of re-examination, she stated that she felt “crushed” and that she could not plan to add anything, but it may be she could do so on Monday in cross-examination. In the light of that, and the Claimant’s request to begin the Respondent’s case on Monday 24 September, and in fairness to the Respondent’s main witness who would be under oath all weekend if the Respondent were to start its case, the Tribunal adjourned the case to continue on 24 September.

[8]The case proceeded with the Respondent’s case. Breaks were given as required, sometimes where the Tribunal anticipated that a break would allow the Claimant to avoid becoming distressed. There were a number of case management issues where the Respondent sought to add or replace documents in the bundle. These were dealt with by agreement for the most part.

[9]The exception was an application by the Respondent to adduce further evidence concerning issue 20. This application was made on the morning of 26 September 2018, long after the Claimant had closed her case. It was refused for reasons given at the time. The Respondent’s application had relied on the fact that it had not understood the Claimant’s case on this issue prior to the evidence. This was rejected in view of the overriding objective, not least because of the timing of the application coupled with the unfairness to the Claimant, and because the Respondent knew or ought to have known of the Claimant’s case given the contents of the Preliminary Hearing Summary of Employment Judge Foxwell (paragraph 5), and the contents of the Schedule of Loss, filed in 2017.

The Issues

[10]On 25 September, at the end of the day, the Tribunal enquired how the parties proposed to make submissions. This was in part because the Claimant had explained how part of her symptoms affected her ability to plan and prepare; and the Tribunal wanted her to have time to process information and to have a chance to plan and prepare for submissions.

[11]The use of written submissions as an option was explained to the Claimant, and that these could be added to orally. The Tribunal directed that any written submissions should be exchanged in advance. Mr. Heard properly indicated that he would prepare written submissions and would provide a copy in advance.

The evidence

[12]In the event, the Respondent’s evidence was not completed until 15.45 on 27 September 2018. The Tribunal decided to hear submissions at 10am on 28 September 2018. The Respondent was prepared to provide its submissions in advance; but sought to do so early on 29 September 2018 despite Counsel having stated that they would be ready on 28 September. In any event, the Claimant agreed to this; and the Claimant indicated that she had written submissions, which she would improve upon. The Respondent was directed to provide its submissions to the Claimant and Tribunal by 7am on 29 September at the latest by email; it was agreed by the parties that the Claimant would serve and file her submissions in hard copy by 09.30.

[13]Mr. Heard filed and served his written submissions before 07.00 on 29th September. They ran to more than 40 pages. The Claimant provided written submissions on the morning of 29th September. The start of submissions was put back to give the Claimant further time to read and digest the Respondent’s submissions. The Tribunal proceeded as set out below in the Submissions section.

The Evidence

[14]There was an agreed bundle of documents prepared by the Respondent’s solicitor. This consisted of four lever arch files (pages 1 to 1834). Unfortunately, one box of files was missing at the start of the hearing, and various bundles had pages missing. These defects were resolved with practical steps during the first and second days of the hearing, and no party was disadvantaged. The bundle was added to during the hearing.

[15]In this set of Reasons: 15.1. Numbers in brackets refer to pages in the bundle. 15.2. Winter Gardens Primary School is referred to as “the School”. 15.3. The Equality Act 2010 is referred to as “EA 2010”.

[16]The Tribunal read witness statements for, and heard oral evidence from, the following witnesses: 16.1. The Claimant; 16.2. Catherine Stalham, Head Teacher; 16.3. Crystal Wiggs, Director of South Essex Academy Trust; 16.4. Simon Harbrow, Executive Head; 16.5. Dominic Carver, Director of South Essex Academy Trust; 16.6. Paloma Grande-Imbernon, Senior Human Resources Consultant for EES for Schools; 16.7. Gemma Cahalane, School Business Manager.

Background facts

[17]In addition, the Tribunal read the documents referred to in the evidence and those referred to by the Claimant in her “List of Medical Evidence Supplied by the Claimant”, which had been prepared following the Tribunal’s explanation that only relevant documents would be read and that a reading list from each party would assist.

Findings of Fact

[18]Further, the Respondent agreed the Claimant’s version of transcripts of telephone messages received by her; there are seven in the bundle.

[19]The Claimant became upset on various occasions in her evidence, at which points the Tribunal would either pause or take a break. We did not find that the quality of her oral evidence was adversely affected by these breaks. We noted that they permitted her the opportunity to recover sufficiently to continue.

[20]The Tribunal found that the Claimant was a witness who gave an account of events that she honestly believed to be true. We allowed for the fact that she was giving evidence for the first time, which is usually a stressful experience for any witness or party. We concluded, however, that her evidence was unreliable in key places. The Claimant was over-sensitive to certain management actions towards her and put a negative, or the worst possible, interpretation on the actions of the School’s management and Human Resources support. We found that she had a reduced ability to recollect events precisely, and concisely. The Tribunal found that these tendencies arose through a combination of the symptoms of stress-related anxiety and depression, which had endured over a period of years. During her oral evidence, we witnessed how these symptoms continued to affect the Claimant.

[21]The Tribunal found that it preferred the documentary evidence and the oral evidence of the Respondent’s main witnesses (Ms. Stalham, Ms. Calahane, Ms. Wiggs and Ms. Grande-Imbernon) where there was any conflict of fact. In particular, Ms. Stalham was an impressive witness, who gave direct answers, fluently, and with practical explanations provided in answer to the several matters put to her. We recognised the scale of the task that had confronted her when she took over management of the School, where a number of staff were absent through sickness and which had had a very poor OFSTED report. We accepted all her evidence, including about the context to the matters complained of. Findings of Facts Findings of fact on the issue of disability

[22]The Claimant confirmed her disability impact statement [77-79] to be true. It was not put to her that it was not, nor that she was exaggerating her symptoms when giving evidence. She was not cross-examined as to its accuracy; her evidence was not challenged at all on the disability issue. We accepted the Claimant’s evidence as to her symptoms.

[23]From before November 2014, the Claimant described that her sleep was interfered with at times of stress; it was the first thing to be affected by stress. She described that during times of stress she had difficulty processing lots of thoughts, being unable to switch off.

[24]The Claimant’s symptoms of anxiety increased gradually in the months leading up to November 2014. She described it as a downward spiral. We find that these symptoms had a substantial adverse effect on her ability to carry out normal day-to-day activities by the beginning of November 2014.

[25]By November 2014, the Claimant’s symptoms had a big impact on her ability to do day-to-day activities. The Claimant’s sleep had reduced to an average of four hours per night. By this time, she was having vivid nightmares and regular panic attacks. She explained that when she stopped work, she had a breakdown, which lasted for weeks, and which she only began to address from January 2015. She had a referral to a dermatologist in November 2014, which was linked to her symptoms of stress and anxiety.

[26]The Claimant’s symptoms of her stress-related impairment by the beginning of November 2014 were broadly as follows: 26.1. She was restless and could only concentrate for a few minutes at a time on matters that seemed trivial, such as films or television. 26.2. She ruminated on things that had happened or could happen. 26.3. She had a reduced ability to absorb information when she read it. 26.4. She had a reduced ability to sleep, due to her mind racing. She averaged about 4 hours per night. 26.5. Her ability to communicate was reduced. She had difficulty organising thoughts, due to her mind racing, and could get side-tracked easily, causing her to struggle to remember the point she was making. 26.6. She worried excessively about the reduced ability to communicate, so preferred to do so in writing; but this caused anxiety and took her longer, because she spent substantial time planning and editing. 26.7. Her appetite was affected by her mood; the more anxious she became, she may forget to eat, but occasionally would over-eat. 26.8. She had panic attacks, which had physical symptoms including irregular heartbeat. She would also pinch her hands or squeeze her fingers when she started to feel jittery as a means to focus her attention and help prevent a panic attack. 26.9. She had reduced confidence and did not like meeting new people. 26.10. She had lost interest in socialising.

[27]The Claimant explained that, with therapy from January 2015, she had learned to control some symptoms, not to remove them, but to reduce them.

[28]The Claimant’s symptoms continued to have a more than minor or trivial affect on her ability to carry out normal day-to-day activities until November 2015. In reaching this conclusion, we have taken account of the use of medication from about March 2015, and we have deduced the effect of the medication.

[29]Following her return to work, from December 2015 until June 2016, the Claimant still experienced periods of symptoms affecting her day-to-day activities.

[30]From all the evidence, we concluded that the Claimant’s symptoms as described in her impact statement (at paragraph 3) arose again in June and July 2016. In particular, the Claimant’s evidence led to the inference that this was one of three periods where the symptoms had a more serious impact on her ability to do day to day activities, because she suffered panic attacks (the other periods being from November 2014, and from November 2016 until her resignation) and suffered a massive drop in her ability to sleep.

[31]The Claimant’s stress-related symptoms of anxiety and depression arose again from about early November 2016. We note that the symptoms were having an effect on her ability to work; she was already substantially behind with her marking since the start of term in September. We concluded that the Claimant’s symptoms as described in her impact statement (at paragraph 3) arose again from or about early November 2016. Medical evidence

[32]The medical evidence is set out in a collection of documents, not in a single medical report.

[33]There is a report from the Claimant’s GP, dated 3 August 2017 (p1466). This provided limited relevant medical evidence because it gives evidence about the Claimant’s treatment and symptoms as at the date of the letter. It gives evidence about her current symptoms of a “mental impairment due to her anxiety and depressive symptoms and due stress-related problems.”

[34]However, the report does indicate that: 34.1. The Claimant started Sertraline (anti-depressant, psychotropic medication) 50mg tablets in March 2017 and there is no intention to discontinue it. 34.2. The Claimant was at high risk of relapse and recurrence of depressive and anxiety symptoms in future.

[35]The following is a summary of the relevant GP medical evidence documents [1623], having read the Claimant’s reading list on this issue. Starting with the GP records: 35.1. On 12 November 2014, the Claimant first reports to the GP with “stress at work – teacher – feels being harassed”. On examination, she is noted to be stressed and tearful. The diagnosis is “Feeling stressed” and a Fit Note for 3 weeks is given. 35.2. On 28 November 2014, the Claimant reports again to the GP. On examination, the GP notes she is tearful and distressed. The GP refers the Claimant for Cognitive Behavioural Therapy. 35.3. On 22 December, the Claimant reports that she is feeling slightly better, but does not feel able to go back to work, and needs to liaise with Occupational Health. It records she is going for a stress management course. She is noted to be less tearful. The diagnosis is “stress-related problem”. 35.4. On 22 January 2015, the notes record: “had gone through work stress – unable to face work at the moment…has contacted therapy for you”. 35.5. On 23 February 2015, the GP records that counselling has begun. “Solicitor involved and is liaising with school, hopefully transfer will be sorted out soon. Diagnosis; feeling stressed”. 35.6. 20 March 2015, the GP records that she is having Cognitive Behavioural Therapy but is more anxious; and that she had counselling for two sessions but was tearful and could not go through second one. She is described as anxious, and on examination “Feeling stressed”. A Patient Health Questionnaire is completed. The diagnosis is: “Mixed anxiety and depressive disorder”. The GP prescribes Citalopram, a SSRI, and is advised to contact Accident and Emergency if she has active thoughts of self-harm. 35.7. 23 April 2015: on examination, the Claimant is weepy, and feels depressed all the time. The Claimant did not start the Citalopram. She is counselled at length. “Nervous debility” is recorded as the reason for being signed off work for a further month. 35.8. On 19 May 2015, a diagnosis of mixed anxiety and depressive disorder is given explained as “Ongoing episode”. Citalopram is prescribed again. 35.9. On review on 16 June 2015, citalopram is recorded as appearing to be helpful; and counselling helpful; but that C is still low, anxious and feeling stressed. The same diagnosis of mixed anxiety and depressive disorder is repeated. 35.10. The GP notes show that she continues to be prescribed citalopram for stress anxiety and depression. 35.11. On 10 November 2015, the GP records that the Claimant prefers to go back on a phased RTW over next 4 weeks, and is “lot more settled and happier”. There are no further relevant entries until November 2016.

Relevant Law

[36]The Occupational Health (“OH”) advice and records can be summarised as follows: 36.1. The OH advice to Ms. Stalham, dated 10 August 2015, was in respect of adjustments for the Claimant to attend a formal meeting. The advice in respect of these is at 574A, including “Allowing the person to be accompanied by a suitable person” and “Providing the individual with information that forms the context of the meeting beforehand to enable them to prepare themselves in advance”. 36.2. The OH advice of 15.9.15 [596-597] records: 36.2.1. “In my opinion, the blockage to a successful return … is the negative perception she has formed regarding some workplace issues and employee relation issues. Clinical evidence suggests that until this perception has been resolved … she is likely to continue with her current symptoms.” 36.2.2. Counselling would help her re-build her personal resilience and confidence. 36.2.3. “It is ultimately a legal matter as to whether an individual actually meets the criteria as having a disability under the Act. While it is unlikely that the Equality Act may apply in this case, it is purely and occupational health opinion and cannot be considered as legally binding.” 36.3. The OH advice of 13.9.16 [792-793] in respect of the Equality Act applying is the same as above. This advice notes the Claimant is fit for work and:37.3.1 “Based on the information provided by Ms Fox … it would appear she is still experiencing some anxiety issues, however she is no longer receiving treatment from her GP as she reports she is managing her symptoms well.”

37.3.2 The Claimant was “grateful for the support received so far facilitating a successful return to work in the last academic year.” 37.3.3. Adjustments were proposed including a stress risk assessment. 36.4. The OH advice on 19.12.16 [898-899] stated that: 36.4.1. the Claimant was experiencing symptoms of “high anxiety poor concentration and poor sleep,” 36.4.2. that she was signed off due to work related stress and that the stressors were unresolved; 36.4.3. if work place issues could be resolved her symptoms would reduce, and she would be able to return to work; 36.4.4. “It is entirely a legal matter as to whether a person has a disability under the Equality Act 2010… The Equality Act may not apply in this case because the employee does not have a long-term condition which impacts on normal day to day activities.” 36.5. The OH advice of 30.1.17 [992-992A] records: 36.5.1. A meeting with management in January 2017 had significantly increased her anxiety levels. 36.5.2. Adjustments proposed which were similar to those suggested in earlier advice. 36.6. The OH clinical notes for 28 March 2017 [1643] record as follows: “Short term memory poor – has to write everything down. Stress related”. It refers to a physical problem and “Picking when related to high stress”. Under psychological health, it records: “Mood varies day to day. Average 4/10 but occasionally higher…Anxiety is worse than depression. Makes her put things off. Finds it hard to deal with things. Anxiety is higher… Some days does not get dressed. Spends hours looking at the documentation for work issues. Feels this is obsessively. Did not go to bed at all one night as reading through work documentation.” It records that her sleep is “Affected by overthinking things”. 36.7. The OH advice 28 March 2017 (1643A) is that: 36.7.1. the Claimant has been diagnosed with anxiety and depression. 36.7.2. the underlying stressors, such as the pay issue and the grievance have not been resolved; and until resolved are likely to be a barrier to her returning to work. 36.7.3. “The Equality Act may apply in this case because the employee has a long-term condition which impacts on normal day-to-day activities.”

[37]We find the instructions given by the Claimant to her doctors were a true account of how she felt at particular times. It is consistent with her oral evidence and documentary evidence.

[38]A stress risk assessment was completed on 27 September 2016 [810-812]. This identifies further support at p812, but does not refer to symptoms. Findings in respect of actual or constructive knowledge of disability

[39]In terms of the Respondent’s knowledge, we are required to consider when the employer had actual or constructive knowledge of the relevant facts, not whether, as a matter of law, the consequence of such facts is that the employee is a disabled person.

[40]We concluded that Ms. Stalham, and the Respondent, had constructive knowledge that the Claimant was a disabled person from about 25 June 2015, evidenced by the letter to Ms. Stalham on that date, especially the content at p.539: “As my most senior manager at work, Mr Hayes’ behaviour towards me was something I did not know how to resolve. I felt isolated and at a dead end in terms of trying to improve my situation. I decided to take some time off with stress as I knew I needed to take a break from the overwhelming pressures at school that I could no longer cope with. I was particularly concerned at the progression to my physical health. Once I took that decision and notified school of my absence I broke down completely and spent much of the next three weeks in tears. I was unable to talk about anything other than the problems at school and it very much had taken over my life.”

[41]From that information, it is apparent that the Claimant’s impairment could well last 12 months and that it had had a substantial adverse effect on her ability to carry out day-to-day activities. From that information, the Claimant was, after seven months of absence, not well enough to return to work. Moreover, Ms. Stalham had in her possession evidence that the Claimant was likely to have a stress-related anxiety and/or depressive condition, evidenced by the Fit notes, the contents of which are summarised in her letter of 2 July 2015 [554].

[42]If we are wrong about this, we conclude that Ms. Stalham had constructive knowledge of the requisite facts by 19 October 2015. This is because: 42.1. By 15 September 2015, the OH advice made clear that the Claimant was still unfit for work and that her current symptoms were likely to continue until workplace issues were resolved. The Claimant had already been absent sick for over 10 months at this point. 42.2. At the informal absence review meeting on 19 October 2015, attended by Ms. Stalham and a HR adviser, the Claimant’s “anxiety barrier” is discussed. At this meeting, the Claimant confirmed that she was still on medication, that she had had counselling, and that she would like more counselling. [654] At this point, the Claimant had been absent sick for almost 12 months and was likely to remain on medication for some weeks.

[43]We found that Ms. Calahane had constructive knowledge of the relevant facts from the point of her first involvement with the Claimant. We infer that she would have received from Ms. Stalham the summary of the reasons for the Claimant’s absence between 10 November 2014 and 11 December 2015, as set out in the letter of 2 July 2015, and must have known that the Claimant had a stress-related anxiety and/or depressive condition.

[44]Moreover, Ms. Calahane did not intend to cause the Claimant more stress, from the outset, leading to the inference that she knew or reasonably ought to have known that the symptoms of the stress-related condition were having a more than minor or trivial effect on the Claimant’s ability to carry out normal daily activities.

[45]Ms. Calahane and Ms. Imbernon-Grande were candid in their evidence that the Respondent had no method or process by which it assessed whether an employee was disabled, other than by a referral to Occupational Health. Ms. Calahane believed that she was not qualified to say whether an employee was disabled or not.

[46]Given the number of Fit notes and the OH evidence generated by January 2017 and then by 31 March 2017, and the fact that the Claimant had had long periods of sickness absence due to stress-related anxiety and/or depression, we found that Ms. Imbernon Grande and Ms. Wiggs must have had constructive knowledge that the Claimant’s impairment had a substantive adverse effect on her daily activities which had lasted twelve months already, had recurred or could well recur. Findings of fact in respect of the incidents alleged

[47]The Claimant was continuously employed by the Respondent’s predecessor as a primary school teacher from September 2011. Originally, she carried out 1-to1 tuition, and acted as a relief teacher to cover classes.

[48]In June or July 2012, the Claimant was appointed to a full-time teaching position at the School, from September 2012. We find that this was for a temporary role, under a one year fixed-term contract, created by a resignation, pending the appointment of a replacement. This temporary appointment was at Scale Point M6, a point accepted by Ms. Stalham who had researched the relevant paperwork and found the error. The letter dated 21 May 2013 [1355] is incorrect in specifying M5, which may be explained by the fact that the employer’s records were imperfect; Ms. Stalham confirmed that the School’s files for staff were in a poor state when she took over in January 2015. We accepted the Claimant did not receive this letter. She did receive a later letter dated 31 October 2014, stating she was on MS6 [297].

[49]During the Summer term of 2013, the Claimant secured her teaching role on a permanent basis from September 2013.

[50]The Claimant’s employment continued when the School became part of the Respondent Academy Trust, until her resignation without notice on 15 May 2017. Incidents issues 2a-2c

[51]The alleged incidents at issues 2a to 2c of the list of issues all took place before the Respondent took over management of the school. They all occurred when Mr. Hayes was Head Teacher. He was appointed in June 2014.

[52]There was due to be an OFSTED inspection in October 2014. This increased both the Claimant’s levels of stress and anxiety, and stress levels across the staff.

[53]Mr. Hayes gave the Claimant the PE Co-ordinator role, removing it from Diane Fogg, Higher Level Teaching Assistant. He agreed that she could remain involved. There was some dispute between Ms Fogg and the Claimant as to what the extent of her involvement should be, Ms. Fogg being reluctant to give up the role.

[54]We find that over time, probably because of the stress that the Claimant felt as a result of their meeting in November 2014, the actions of Ms. Fogg have been magnified beyond what actually occurred. For example, the complaint that Ms. Fogg falsified documents was, on closer analysis, the interpretation of the Claimant of what had happened concerning Ms. Fogg, who had applied for funding for new equipment without reference to the Claimant.

[55]We considered the events objectively, and found that they were relatively minor matters, probably common across schools where duties and responsibilities are taken from staff and re-distributed to other staff. In this case, Ms. Fogg had been responsible for PE at the School for many years, which the Claimant to her credit recognised. There is no documentary evidence that the Claimant complained about Ms. Fogg until November 2014.

[56]In the early part of the week commencing 3 November 2014, Ms. Fogg had taken an item of post from the Claimant’s pigeon hole, with photographs featuring the Canvey games, to put on the staff room table. The Claimant considered this an invasion of her privacy. She described the action of Ms. Fogg as “rifling through my private post” (paragraph 53 statement), but this is a quite serious accusation, which there was insufficient evidence to support.

[57]On 6 November 2014, there was a meeting between the Claimant and Ms. Fogg (who had learned that she had upset the Claimant). Ms. Fogg approached the Claimant after school in her classroom, and asked nicely if she had done something wrong. The Claimant replied that there were lots of small things about the PE role that she was unhappy about, that she was stressed with work, and that she was unhappy about what she had done by taking the item from her pigeon-hole. Ms. Fogg overreacted to that in a verbal way, becoming defensive, stating that the post was on the top, hanging out, and that she did not go through the pigeonhole; and that she was the one who had attended the Games, and the book was meant to be shared. Ms. Fogg was angry because she perceived that she had done nothing wrong. Heated words were exchanged.

[58]Ms. Fogg should not have acted as she did, but we found it was the type of act which requires managing, such as a request not to repeat or an informal warning. We do not consider that it required a disciplinary sanction under the disciplinary policy, in the absence of any evidence of the act being repeated.

[59]We found that the Claimant overreacted to the incident which occurred on 6 November 2014. At this time, as we have noted above and as explained in the Claimant’s witness statement at paragraph 52, the Claimant felt a high degree of stress at this time and her abilities were impaired, including by lack of sleep and feelings of anxiety. We concluded that her symptoms made her recollection of this meeting unreliable. Had there been the angry verbal “attack” by Ms. Fogg, as alleged by the Claimant, it is likely that the Claimant’s email sent shortly after the meeting at 18.12 would have complained about it directly [429].

[60]Mr. Hayes did not refuse to deal with the Claimant’s complaint about that meeting. Ms. Fogg complained to him about the meeting, because she was unhappy about what had happened. We note that in response to the Claimant’s email sent at 1812 [429], Mr. Hayes proposed that there be a joint meeting with all three of them present on Monday 9 November, to discuss the issues and look to move things forward: see his email at 19.23.

[61]The Claimant’s interpretation of events demonstrated her over-sensitivity, as this extract of the evidence demonstrates: “CH proposed meeting with all 3 of you – do you criticise this? Yes – He had already met with DF and did following morning; I had not had opp to raise myself with him; so no opp to raise without her present; made me anxious; not sure if I could put across what I wanted in meeting without seeing him. If he thought caused friction with move; but if already spoke to one; no opp to give that person chance; so if he understood that by speaking to me, he would understand that I not able to do – why it would be a problem for me. He should have had that consideration. Later he sees how upset I am at different point. You felt DF should be dismissed? I felt something should be done to fix what gone wrong. Even if she did lose temper, I forgive her; I understand personal circs and that she value role, had for long time. Believed managed very badly; it would not escalated but for that. At time, I can look back and still upset. Understand DF upset too; I not want her dismissed now. At time, tipped me over edge at time; if at time, face some form disc process at time.”

[62]The following day, 7 November, the Claimant went to school early to speak to Mr. Hayes; but she found Ms. Fogg was speaking to him. She admitted that he had not allocated Ms. Fogg time, but, nevertheless, this made her unhappy.

[63]We found that the Claimant had placed the worst possible interpretation on events (blaming Mr. Hayes for not allocating her time to meet him alone), as a result of the stress and anxiety that she was feeling at that time. The Claimant describes her state of anxiety and her stress at paragraph 57 of her statement, which records that she was shaking, picking at her hands, and felt quite lost. We accepted that evidence, which was not challenged.

[64]A meeting was to take place on that morning with the Claimant and her partner teacher, Ms. Eddington. The Claimant complained that, as they were leaving his office, Mr. Hayes asked if she was okay; the Claimant was on the verge of tears, and replied that she was not. Then Mr. Hayes patted her on the shoulder, told her to take care of herself and left. Viewed as a whole, we did not find that this was patronising conduct by Mr. Hayes; he appeared to be sympathetic to the Claimant. There was no evidence that he knew that the upset of the Claimant was connected to Ms. Fogg’s behaviour; the previous email from the Claimant had stated that she was “very unhappy” but not more.

[65]The Claimant did not want to meet Ms. Fogg and Mr. Hayes together, due to the increased stress that such a meeting would provoke, with her interpretation being that there would be a risk of “verbal attack” from Ms. Fogg and her knowledge that her mental state at that time would make it difficult for her to respond and explain her point of view. This increased the stress that she was feeling.

[66]Over the weekend, the Claimant continued to feel stress. She had a persistent headache. She had feelings of dread and panic about returning to school, and felt sick at the thought of it. She could not face the thought of returning and explaining how she felt in the presence of Ms. Fogg.

[67]As a result, although she did not have a copy of the Sickness Absence Management Policy (“SAMP”), the Claimant emailed Mr. Hayes to inform him that she would be absent because of stress: see her email [430]. She explained that she felt it amounted to a campaign of bullying by Ms. Fogg.

[68]We accepted the Claimant’s evidence at paragraph 59 of her statement that she broke down completely once she had decided not to attend the School. Issue 2b

[69]The list of issues is incorrect insofar as it refers to the 2013-14 academic year; this is a typographical error because the relevant year was 2014-15.

[70]The Claimant’s complaint is that Mr. Hayes tried to downgrade the Claimant’s performance in her appraisals as alleged in paragraph 10 of her Claim. Her submissions refer to the grievance minutes [624].

[71]The Performance Management procedure had not been completed for the year 2013-14. Mr. Hayes planned to do so in Autumn 2014.

[72]After an observation on one of the Claimant’s lessons, Mr. Hayes graded the lesson as “Requires Improvement”. Ms. Eddington, the Claimant’s year group partner, received the same grading; but she had disputed this, leading him to change it to “Good”.

[73]Mr. Hayes then added the Claimant’s disputed lesson grading from the 2014-15 year onto the performance review data for 2013-14, which she believed detracted from her “Good” and “Outstanding” judgments for 2013-14. In addition, the Claimant complained that Mr. Hayes had changed other teachers’ grades when they had complained. She interpreted these two things as showing that Mr. Hayes “might be attempting to downgrade performance ahead of the reviews he would be conducting”.

[74]We did not accept her interpretation was likely to be correct as a matter of fact. The Claimant did not know what evidence Mr. Hayes had about colleagues. It appeared that he believed that, as Head Teacher, what he did was right.

[75]From the Claimant’s evidence (paragraph 49 witness statement), Mr. Hayes chased the Claimant for her signed Performance Management paperwork. Given that he was behind (this should have been done in the previous Summer term), this could not have surprised the Claimant. We accept that on the last day of the half term, Friday 24 October, Mr. Hayes tried to stand over the Claimant to ensure that she completed her comments. This was not an act which was likely to affect the trust or confidence of the Claimant, nor was it reasonable for it to do so. On the same date, Mr. Hayes had shared with the Claimant targets that he had set for her for that academic year, suggesting a degree of collaboration, even if he was by this stage failing to complete management tasks.

[76]Thereafter, Mr. Hayes concluded the Performance Management review. He decided that the Claimant would stay at MS6. In his decision letter dated 31 October 2014 [297], he stated: “As a UPS teacher you should be a role model within the school for other teachers to look up to and aspire to be like. From the evidence that I have seen and we have discussed, you do need to improve your performance to fully meet the Teacher Standards in the areas identified below. You will need to demonstrate: - pupils in your class are making at least nationally expected progress with a significant percentage making more than expected progress - gaps between the disadvantaged pupils and those identified as DSEN are closing with those recognised as not being disadvantaged or DSEN - marking and formative feedback to pupils follows the school policy. As you are aware, I have arranged for support to be provided to you over the coming weeks to help you demonstrate the above in preparation for next year.”

[77]The Claimant had not felt confident to challenge with him the decision to keep her at MS6.

[78]There was no evidence that Mr. Hayes’ decision not to put the Claimant on UPS1 was made in bad faith; the Claimant stated that she did not know if it was a decision made in bad faith, but she felt it was unfair.

[79]In November 2014, the Claimant appealed the decision of Mr. Hayes to the Chair of Governors. No appeal was arranged at that time. On balance, this was not because the School ignored the Claimant; Mr. Hayes had not ignored her previously (evidenced by his responses to her emails). The delay was probably because the school management was in a state of disarray after the OFSTED report and the dismissal of the governing body and the formation of the Interim Executive Board, discussed below.

[80]We accepted Ms. Stalham’s evidence that a teacher must apply for and prove that they meet the criteria for UPS1 before being placed on that grade. This was corroborated by other documentary and oral evidence. Post-October 2014 & Move to Academy Status

[81]The School went into Special Measures following an Ofsted inspection in October 2014, which rated it as “inadequate”. An Interim Executive Board (“IEB”) ran the school between January and July 2015. It became part of the Respondent Academy in July 2015, when the Claimant’s employment transferred to it pursuant to a transfer. We found the transfer to be within the Transfer of Undertakings (Protection of Employment) Regulations 2006.

[82]Ms. Stalham was appointed as Acting Head Teacher in March 2015. She was seconded from Westwood Academy, where she had been a Deputy Head. She was appointed Interim Head Teacher by the IEB in July 2015. Issue 6b

[83]Although the Claimant responded to a letter of introduction from Ms. Stalham in March 2015, she stated that she did not want to meet at that time. By her letter 17 March 2015 [444], the Claimant reminded Ms. Stalham that she had requested a copy of the Grievance Policy “in order to raise the issues I have faced as a formal grievance”; she alleged this request was ignored by Mr. Hayes. She also stated that she had been notified that Ms. Boothman, IEB Member, would be dealing with her earlier correspondence. The Claimant stated that she did not want to waste Ms. Stalham’s time until the issues had been raised in a formal grievance, so that she understand the effect that they had had on her health.

The Law

[84]On 25 March 2015 [446], Ms. Boothman provided a copy of the Grievance Policy and asked for details of the grievance.

[85]On 14 April 2015, Ms. Boothman wrote to the Claimant again, stating that a grievance hearing was arranged for 20 May 2015. The letter begins: “I am writing following receipt of your intention to progress your grievance …” [447]. This is an accurate description of the Claimant’s intention in the letter of 17 March 2015, although the Claimant had not in fact completed a formal grievance form (GR1). The letter explained to the Claimant she should submit any evidence at least three days before the hearing.

[86]On 14 May 2015, Ms. Boothman wrote to the Claimant stating that she had not heard further from her, and asking whether she would be attending the meeting on 20 May 2015.

[87]On 20 May 2015, Ms. Boothman decided that she had to cancel the grievance hearing because she had insufficient information to proceed, evidenced by the letter at [456] stating that she had had no response. This letter concluded: “As previously indicated should you wish to complete a GR1 or send a letter outlining your grievance together with the remedies you are seeking I will reconvene a meeting.”

[88]The Tribunal found that, on the face of the evidence, the arrangement of the grievance hearing on 20 May was not unwanted by the Claimant.

[89]The response of 20 May 2015 may well have been unwanted by the Claimant. We note that, over May-June 2015, the Claimant underwent weeks of invasive medical treatment. We can understand how this affected her ability to attend the grievance and to engage in it, given her physical impairment and emotional anxiety at the time. The Pay Appeal

[90]The Claimant’s Pay Appeal from the decision of Mr. Hayes not to grade the Claimant at UPS1 was heard on 9 June 2015. The minutes are at 512a-c, disclosed late on day six of the hearing. The Claimant did not object to these documents going into evidence, but sought to point to differences between what was recorded and the evidence of Mr. Harbrow.

[91]The Claimant did not attend the Appeal. At the time, she was suffering from severe anxiety. As explained in her witness statement, paragraphs 93, 95, this had grown worse because she had felt ignored by the School – even though we find that this did not in fact happen.

[92]The School was represented by Mr. Harbrow (Executive Head Teacher) and Ms. Boothman, Director of the IEB.

[93]Mr. Harbrow’s evidence before us, which was that he only had a couple of bits of paper before him at the appeal, was mistaken. His memory was unreliable, probably because of the time elapsed since the appeal. The bundle for the Pay Appeal is at p461-506. We found the documentary evidence to be more reliable than his oral evidence.

[94]The minutes of the Pay Appeal meeting clearly show that Mr. Harbrow had a bundle of documents at that appeal. At 1.15 of the minutes, his evidence to the Panel is as follows: “In response to a question from RB, SH confirmed that it is normal practice when a teacher applies to go through the threshold to supply evidence to support the application. This may include extracts from target tracker, performance management reports, self-check book review/book look. SH added that from the pack, he cannot see any evidence of SF’s additional input into the school. SF is a PE Co-ordinator and, as a result, would expect to see evidence of her leading/supporting another teacher.”

[95]The Appeal Panel decision [513-514] was to uphold the appeal. In effect, it was that Mr. Hayes’ decision was quashed, and the School was required to hold a review of the decision not to progress the Claimant to UPS1 from 14 September 2014. The decision concluded: “The Committee heard evidence from Mrs Boothman and Mr Harbrow (Executive Headteacher) that: o The paperwork available in school was incomplete, including a lack of Committee minutes relevant to the pay decision; o There was some evidence of good and outstanding teaching; o It was important to hear your response/explanation for your progress against your objectives; o The Target Tracker data was potentially unreliable; o The performance objectives were reasonable; o Progress in reading was low in certain groups of pupils. The Committee felt this indicated there were inconsistencies in the evidence and judgments made and therefore decided to uphold your appeal. The Committee requires that the school should conduct a review of the decision not to progress you to Upper Pay Range point 1 with effect from 1 September 2014. The Committee believes this review should be conducted by the school’s headteacher and that it should be carried out when you return to work as the Committee believes it is important that the review includes hearing from you in relation to your progress against the performance management objectives.”

[96]The Claimant believed that the Pay Appeal bundle (which she received before the appeal hearing) showed that the decision of Mr. Hayes was flawed.

[97]From the evidence we heard, we were in no position to assess whether our decision might have been different to that of Mr. Hayes. We did not have the materials or the direct experience that Mr. Hayes had. For example, the Claimant relied upon the figures at p.382, and alleged that Mr. Hayes was wrong to find that the Claimant had not met the “At least 70% of Pupils Achieve Age Related Exp R.W.M” [376]. But Ms. Wiggs’s evidence, which we accepted, was that the Teacher Assessment Results (school results in white, national results in green) were for both classes of that Year group at the School; and the Claimant only taught one of those classes. These statistics could not be interpreted by the Tribunal as supporting either Mr. Hayes’s assessment or the Claimant’s assessment.

[98]The Tribunal did not consider that the documents that were before us suggested a malicious decision not to grade the Claimant at UPS1. Further, the objective evidence did not prove a decision made when Mr. Hayes knowingly lacked justification for it, nor any unjustified attempt to downgrade (or not to upgrade) the Claimant. In fact, his letter at p.297 is, on the whole, supportive, advising the Claimant how she might progress to UPS1.

[99]In short, we did not find that Mr. Hayes had committed an act which was calculated or likely to damage the relationship of trust and confidence between the Claimant and Respondent, nor that he had acted unreasonably in this respect. Issues 2d-f and 6a

[100]Ms Stalham wrote to the Claimant on 2 June 2015 explaining that her grievance and Pay Appeal were being dealt with. The Claimant was invited to a meeting on 17 June 2015 to discuss the OH referral form, or that she would send the draft to the Claimant (as was her practice with other employees).

[101]The Claimant did not attend the meeting, and did not let Ms. Stalham know this in advance. Ms. Stalham, not surprisingly in those circumstances, sent off the OH referral. Subsequently, at the Claimant’s request, a couple of matters were changed on the form. We find that Ms. Stalham intended the referral to be supportive and constructive and that there was no part of it which could reasonably affect the Claimant’s confidence in the Respondent. The referral letter was adapted from a standard letter.

[102]We accepted Ms. Stalham’s evidence at paragraph 9. It is the duty of the member of staff to provide a fresh certificate at or about the time of expiry of a previous one; if not provided, the School must inevitably contact the staff member to see if they are fit or not. She believed that the duty of care owed to staff justified such contact as requesting Fit certificates if the previous one ran out and no new one was received, and the staff member did not attend work.

[103]Moreover, one feature of the failing performance by the school was a high level of long-term absence amongst staff, so these requests for certificates were very reasonable in that context.

[104]The letter of 17 June 2015 states as follows: “Whilst I am writing I would like to bring your attention to certain obligations on your part under the terms of the Sickness Absence Management Procedure (SAMP). We have had to chase on several occasions a fitness certificate to cover your absence. It is in fact your contractual duty to ensure that you are at all times covered by appropriate certification. It is also your responsibility to be keeping us informed and making contact with us to advise of nature and the ongoing likely duration of your absence. I refer you to sections 1.2, Communication and 3.3 of the procedure, responsibilities of all staff, regarding communication obligations. Hence our trying to arrange a meeting to discuss your absence with you as just receiving a certificate through the post does not provide sufficient information for us to assist in supporting you during your absence. In future, if we do not receive an appropriate certificate in a timely fashion I am afraid that we will need to advise our payroll provider that you are on an unauthorised absence and to withhold your sick pay until appropriate certification is received. As you will see, there is a procedural obligation for you to comply with the referral to Occupational Health. I refer you to Section 4.5.1 of the procedure. If you are unable to attend the appointment Occupational Health makes for you please ensure that you advise them you cannot attend in good time. They will then discuss with you trying to book an appointment which you can attend.”

[105]The letter does not contain any real criticism of the Claimant; it points out what she has not done, and what the contract requires, but it does not blame her or threaten her with sanction for the past delays in providing medical certificates. It warns her that the consequences of future delays could be that her pay stops; and in that sense this letter actually assists the Claimant by alerting her to this risk.

[106]In this case, the Claimant had had no direct contact with Ms. Stalham who was only trying to ensure that procedures were followed in requesting certificates. The list of reminders is in the letter of 2 July 2015 explaining this [554]. Ms. Stalham had had no direct contact with the Claimant since her response in March 2015 (declining to meet with Ms. Stalham).

[107]The letter of 2 July 2015 does not contest the information provided by the Claimant in her letter 25 June 2015 [532-541]. This letter from Ms. Stalham is conciliatory and provides explanation from the school’s perspective. It is constructive regarding the OH appointment.

[108]Ms. Stalham did not know that the Claimant did not have a copy of the Sickness Absence Management Policy (“SAMP”). At that point of time, through no fault of anyone, she had never met or spoken to the Claimant.

[109]We found that the Claimant knew that she must let the School’s senior management know if she was to be absent, so that cover could be arranged: see, for example, the Claimant’s email to Mr. Hayes of 9 November 2014 [430-431].

[110]It may well be the case that one or more sick notes were requested, when the Claimant had already sent them or taken action to get them by attending the GP. But we accepted Ms. Stalham’s evidence that she sent the requests in good faith, not knowing that, and that she was reliant on what she was told by the School Office. For example, the fit note at p.510 was sent in by the Claimant, before the letter requesting a new certificate was sent out; but this appears to have been due to a delay in the office, and the office then sent a compliments slip [511] asking the Claimant to ignore their earlier request letter.

[111]We find that none of the matters at issues 2d-2f were calculated or likely to destroy the relationship of trust and confidence; but if they were likely to, because of the Claimant’s stress related impairment, it was not reasonable that they did so. We find that the Claimant was over-sensitive to reasonable management instruction; this over-sensitivity may well have been a symptom of her impairment.

[112]Moreover, we find as a fact that the requests for certificates were appropriate at the times that they were sent. It was not reasonable for them to have the effect on the Claimant that she alleged. 6c: Return to work support

[113]The Claimant contended that following her return to work, the Respondent harassed her by not providing necessary support.

[114]The Tribunal accepted the evidence of Ms. Stalham as to the steps taken to support the Claimant following her return to work. But it is artificial to focus only on the support provided after the Claimant commenced full-time work on 14 December 2015.

[115]On 6 October 2015, the Claimant’s grievance was heard. The Claimant found the grievance hearing helpful.

[116]By letter dated 11 October [630-637], the Respondent did uphold parts of the Claimant’s grievance. For example, her claim to have been paid on the incorrect pay scale (MS5) was upheld; Ms. Boothman arranged for the difference (£2628 gross) to be paid to the Claimant. Furthermore, a payment of £400 was agreed, as a goodwill gesture.

[117]Moreover, the grievance outcome explained that the Acting Head would review the decision not to progress the Claimant to UPS1, on the Claimant’s return to work, at an appropriate point. It was recorded that the Pay Appeal had been upheld.

[118]The Claimant did not appeal the parts of the grievance decision which were not upheld.

[119]Furthermore, the Claimant attended a Return to Work meeting on 19 October 2015, attended by Ms. Stalham and Mr. Balls (HR). The Claimant was accompanied by her cousin, even though the invitation letter had limited accompaniment to work colleague or trade union representative. The minutes demonstrate that Ms. Stalham was supportive during that meeting. For example, Ms. Stalham had already spoken to Ms. Fogg; at the meeting, she stressed that “if there is any issue with DF’s professional conduct or an unwelcoming tone this will be dealt with immediately.” [653]

[120]As well as checking on the Claimant’s health, Ms. Stalham made a further appointment for the Claimant to come into School for a social visit. Further, Mr. Balls stated that the Claimant would be fully supported.

[121]A return to work meeting was held at the School on 11 November. Ms. Stalham agreed with the Claimant about a phased return to work and other measures designed to support the Claimant to return to work full-time. These are set out in the letter at p.1226. The support includes day-to-day support. It was not intended that the Claimant would take whole responsibility for a class until she felt comfortable to do so.

[122]The Claimant commenced the phased return on 17 November 2015. The Claimant returned to work full-time from 14 December 2015.

[123]We accepted Ms. Stalham’s evidence at paragraphs 18 to 23 of her witness statement. Further, on 24 March 2016, at the end of the Easter term, the Claimant sent a positive email thanking Ms. Stalham and Ms. Thurston, stating that she has “loved being back” [717]. We found that such an email was sent because Ms. Stalham and others at the School had supported the Claimant’s return to work. This email is consistent with the content of the OH advice arising from the appointment on 13 September 2016, in which it is recorded that: “She reports that she is enjoying her work with her Year 3 class. Ms. Fox states she is grateful for the support she has received so far facilitating a successful return to work in the last academic year.” [792] 2g: pay review allegedly “brushed off” after return to work

[124]The Claimant’s submissions argue that the evidence demonstrates that the outcome of the Pay Appeal was not provided; but instead the goalposts were moved by a requirement to provide “evidence” without any direction. On this issue, however, we preferred the evidence of Ms. Stalham. The pay review was not ignored, after the Claimant’s return to work.

[125]The Claimant’s initial Performance Management Review (“PMR”) Meeting for the year 2015-16 took place on 26 February 2016. This took place within a reasonable time of her return to work and was the first opportunity to set her targets. Ms. Stalham was aware that she should review whether the Claimant should move to UPS1 when she returned to work or “at an appropriate time”, which she believed had been reached.

[126]At the PMR, Ms. Stalham gave the Claimant the criteria which one would have to meet to be eligible for the threshold, and explained that she would carry out a review, which would need to hear from the Claimant, and that she could talk it through with the Claimant. Ms. Stalham offered to help “brainstorm” what evidence she would need to give, but the Claimant stated that she had the paperwork in her house which she thought would be useful in the review. To avoid causing stress, Ms. Stalham put no deadline on this.

[127]The Claimant did not complain about this approach, and appeared to Ms. Stalham to be positive about finding the evidence. There would be no reason for Ms. Stalham to doubt her understanding that the Claimant was comfortable with her approach to the pay review given the email of 24 March 2016, thanking her for support and not complaining about her approach to the pay review [717].

[128]The Tribunal accepted that Ms Stalham did have regular meetings with the Claimant after she returned to work. The evidence indicates that by 22 April 2016, the Claimant was experiencing some difficulties in carrying out her role. By 28 June 2016, the Claimant was clearly experiencing stress; she emailed Ms. Stalham explaining that she could not attend a staff meeting being held at another school because she was struggling to hold her emotions together and was “stressed by a number of things”. Thereafter, the Claimant was absent from work until 4 July 2016, because she wanted to get away from the stressors.

[129]On 4 July 2016, the Claimant’s PMR was reviewed with Ms. Stalham in a 1-to-1 meeting, as is normal practice. The Claimant explained her stressors were about meeting deadlines and working with her line manager in her year group, who had a direct approach. The issue of whether the UPS1 threshold had been met was raised; but the Claimant did not provide Ms. Stalham with any evidence that she met the standards for the UPS1 threshold. The Claimant had not sought any help to produce the evidence required; but Ms. Stalham did not challenge the Claimant about this because she did not want to add to her stress. Ms. Stalham did offer to brainstorm with the Claimant about the evidence required, but, at this meeting, the Claimant did not seek any support with obtaining it; the Claimant maintained that she needed to look for the evidence at home. The Claimant signed the PMR paperwork after that meeting [708-712]. We do not consider that it would have been signed without complaint if the Claimant felt her pay review was not discussed at that review.

[130]We accepted that Ms. Stalham could not decide that the Claimant had reached the threshold without evidence that she had done so. This is implicit in the Pay Appeal decision.

[131]During the Stress Risk Assessment meeting, in September 2016, the Claimant confirmed that she was to find evidence at home to support her application [795].

[132]During the October 2016 Performance Management meeting, Ms. Stalham again discussed with the Claimant her need to bring in the evidence that she had talked of, and they discussed an alternative further Performance Management objective to enable the Claimant to meet the criteria for UPS1 [824]. We accepted Ms. Stalham’s evidence about that meeting. The Claimant signed the notes of that PMR, indicating that they were correct.

[133]After the Pay Appeal, as the Claimant alleged, no pay review was completed. But this misses the point. At all material times, Ms. Stalham believed that she could not complete the pay review, because the Claimant had not given her evidence to show that she met the criteria to move to UPS1. There was not movement of the goal posts; but Ms. Stalham did proceed on the basis that the proper procedure had to be followed.

[134]We find as a fact that there was no PCP of only holding pay reviews where someone was fit for work. The framework Pay Policy document [1697ff] shows that the policy of the School was that a pay review could be held irrespective of whether a teacher was fit for work: see p.1705, which provides that “Any qualified teacher on the Main Pay Range” may apply.

[135]However, there was a PCP that evidence was required to demonstrate that the threshold criteria for UPS1 had been met. This is evidenced in the Pay Policy document and by the oral evidence, particularly that the Claimant could not pass through the threshold without adducing evidence that her performance demonstrated this criteria was met.

[136]This PCP of a requirement for evidence did not put the Claimant at a substantial or any disadvantage compared to another teacher with her experience and in her role. Issues 2h – 2j and 6d: November 2016

[137]On 17 November, Ms. Stalham held a further 1-to-1 review meeting with the Claimant. In that meeting, the Claimant stated that she was happy with everything; but she proposed a change to the usual planning procedure, whereby she would plan one subject (literacy), and her year group partner plan the other (maths). Ms. Stalham explained to her why this could not be accepted and that it was necessary for year group partners to plan together.

[138]We accepted that the Claimant also raised in that meeting that she would like to be allowed to do some marking in her PPA time, instead of planning together. We find that Ms. Stalham explained that this was not possible because it was needed as planning time. The Claimant interpreted this as a refusal to allow additional PPA time.

[139]At that meeting, the Claimant did not inform Ms. Stalham that she was behind with marking and did not ask for support with this. Had she done so, we are sure that this would have been recorded in the note of that meeting [830] or the note of the meeting on 18 November [839] given that marking was an issue raised with the Claimant at a meeting in February 2016. We did not accept that the note of that meeting [830] was a later invention; we found that it was a fair reflection of the meeting.

[140]Later on, 17 November, probably prompted by her discussion with the Claimant about wanting to use PPA time for marking, Ms. Stalham took a tour of the classrooms, examining pupils’ books in various classrooms. This was her normal practice, despite being prompted to do it on this occasion.

[141]Ms. Stalham picked up some Learning Journey books in the Claimant’s classroom, after school had ended. She found that some of these had not been marked at all since term commenced in September. The School policy was that work was marked daily. The Claimant was aware of this policy from a discussion with Ms. Stalham at a meeting in February 2016. Quite reasonably, given that she was the Head Teacher, Ms Stalham took the books to her office to discuss with the Claimant the next day. The Claimant interpreted this as putting the books in her office “ready to chastise me the next day”, which we find an example of her tendency to put the worst possible interpretation on events.

[142]On 18 November before school started, Ms. Stalham went to the staff room and asked the Claimant if she could have a chat in her room when she was able to; she said was able to come then. Ms. Stalham led on; the corridor is narrow so it was inevitable that the Claimant followed her down it.

[143]In her room, Ms. Stalham explained that she was concerned about the lack of marking of these books and the quality of the work in them. There is no evidence that she raised her voice or was in any way disrespectful. Ms. Stalham made an adjustment by allowing the Claimant about two weeks, until Friday 2 December, to ensure all books were up to date with marking. Support was offered, but the Claimant refused the offer. Ms. Stalham also informed the Claimant that she had confidence in her as being able to perform as required, evidenced by the notes [839].

[144]There was nothing about the events on 18 November 2016 which could reasonably have affected an employee’s trust and confidence in Ms. Stalham or the Respondent. Ms. Stalham dealt with what she found in a very fair and measured way, allowing the Claimant time to catch up.

[145]On Sunday 20 November, the Claimant emailed Ms. Stalham explaining that she would be absent from work (840-841). She stated that issues with her pay were causing anxiety and this was the “underlying problem”.

[146]On 21 November, because the Claimant was absent from work and in view of her previous long-term sickness absence, Ms. Stalham emailed Ms. Calahane, the Trust’s HR manager.

[147]The Claimant complains that, on various dates after this, Ms. Calahane, Stacey Moore and Julie Chandler would call her about “non-urgent matters”.

[148]The Tribunal accepted the Respondent’s evidence explaining why those calls were made. In short, the Claimant had taken some of the children’s books home with her and these were needed for assessment or moderation, and for the children to continue their work.

[149]The named employees did try to contact the Claimant. The transcripts were viewed during cross-examination. The contents of the calls were made in good faith, for good reason, and appropriate and reasonable on the face of the transcripts. The purpose of the calls – to ensure the return of the books – was a relatively urgent matter, because the education of the children was ongoing, and their books were tools for them, and for the school, by which their education might be measured or demonstrated.

[150]In any event, at the time she went absent through ill-health, the Claimant had not requested that all communication with her had to be by email, not telephone; her email of 20 November 2016 does not ask for this, and, indeed, ends by saying that the pay issue is her priority and that she looks forward to hearing from Ms. Stalham as to how to move this issue forward. On 24 November, the Claimant emailed Ms. Stalham, stating that email was preferable to telephone calls, but she did not state that calls could not be received; she had in fact tried to phone back Ms. Calahane.

[151]We accepted Ms. Calahane’s evidence that the requests were made for the best of motives. We found it unlikely that her calls would sound upsetting. Looking at the transcripts of the calls, the staff member making them generally apologised for ringing. For example, Stacey Moore offered for a time to be arranged for collection and stated that the Claimant could email her reply: see transcript, 25 November [864]. It is notable that when Ms. Moore rang again on 28 November [868], she stated that “Sorry to bother you but …its quite urgent now that …” This demonstrates that the School had had no response to its earlier inquiries and the matter was becoming quite urgent.

[152]We found no evidence in respect of the calls made to the Claimant that were likely to damage the relationship of trust and confidence. But in any event, we found that it was not reasonable for any of the calls to have that effect. The Claimant’s interpretation was that there had been “constant badgering” for the return of the books (evidenced by her email at 870); but we found that the requests were reasonable in the context of lack of response from the Claimant and the requirement for the return of the books.

[153]The Claimant remained absent from work until her resignation.

[154]The Claimant alleged that the Respondent had employed another teacher on a permanent basis from the beginning of January 2017 to take over her class. From the evidence that we heard, this allegation was based on supposition and misinterpretation by the Claimant, who appeared to base her allegation on the fact that she had seen the name of the new teacher and class name on the website. The Tribunal accepted the evidence of Ms. Stalham and Ms. Calahane. At first, the Claimant’s class was covered by Ms Thurston, Deputy Head, and agency staff. When the School realised that this could be a longer-term absence, a teacher was engaged from January 2017. This was on a fixed term contract designed to cover the absence which the Respondent believed could last up to the end of Summer term 2017.

[155]The Claimant’s submissions relied on the fact that the initial of the class name changed from “3F” to “3M” in January 2017. We found this merely reflected the fact that another teacher was taking the class in the absence of the Claimant from January 2017. The teacher awarded the fixed-term contract was not offered a permanent contract until September 2017, long after the Claimant’s resignation. Arrangements for the Sickness Absence Review Meeting 12 January 2017: Issues 2k; 6f; 13(a)

[156]The complaint represented by issue 2k and 6f is that the Respondent told the Claimant that she could only be represented by a work colleague or trade union representative to the informal sickness absence review meeting arranged for 12 January 2017, despite OH recommendations that she required an adjustment to the policy and practice: see paragraph 43 Particulars of Claim. The Claimant alleged this was by Ms. Stalham on 21 December 2016 and Ms. Calahane on 10 January 2017 (see further and better particulars at p.51).

[157]On 21 December 2016, after the Claimant had been absent for 1 month, by letter, Ms. Stalham invited her to an informal sickness absence review meeting [900] and included a copy of the Sickness Absence Management Policy. This letter “You should make all reasonable efforts to attend this meeting. If you have any specific requirements relating to the meeting or your ability to attend please let me know as soon as possible. Whilst this meeting is informal in nature, you may, if you wish, be accompanied by a trade union representative or work colleague. It is your responsibility to arrange for your representative to attend the meeting. I will be accompanied by a member of the SEAT HR team and by an advisor from the Education HR team.”

[158]This was a standard letter, written with the advice of Essex HR. We noted Ms. Calahane and Ms. Stalham were following the procedure for sickness absence management, in a School where policies had not been followed, leading in part to the failed OFSTED inspection.

[159]In the absence of a response, Ms. Calahane sent the Claimant a further email on 9 January, asking whether she was going to attend the meeting on 12 January 2017, and whether she had chosen to be accompanied by a representative.

[160]By email sent on 9 January 2017 [907], the Claimant did not in terms request to be accompanied or represented by a person other than a work colleague or trade union representative. It stated that she was not a member of a union and had no contact with colleagues, so had no option but to attend alone, stated that the OH advice had recommended that she be accompanied at meetings and that she felt intimidated.

[161]Ms. Calahane responded on 10 January. This response includes: “please be assured we will make every accommodation to ensure you are comfortable and afforded breaks when needed. Let me know if there are specific arrangements you require.”

[162]This email stated that it was an informal meeting and explained who would be present. Despite this, the Claimant did not respond by asking to be accompanied by a family member or friend. She interpreted the meeting as largely formal given the attendees.

[163]After this response, the Claimant did not reply that she wanted or required to be accompanied by a friend or family member.

[164]At the start of the meeting on 12 January, the Claimant attended alone. She did not request to be accompanied by a friend or colleague. The Claimant was upset at the outset of the meeting. From the minutes of the meeting, which we found to be accurate if not verbatim [925ff], it is clear that Ms. Calahane asked at the outset if she was “OK to go ahead with the meeting” and the Claimant replied that she was.

[165]As we have seen, in September 2015, without any prior arrangement, the Claimant had attended a grievance meeting with her cousin, Theresa Fox. We found that had she asked to be accompanied by a friend or family member at this meeting on 12 January 2017, this adjustment would have been made.

[166]It is a misinterpretation of the correspondence prior to, and the events at, that meeting as showing that the Respondent refused to permit the Claimant to be accompanied by family member or friend. The original invitation related to representation by trade union official or work colleague (“If you decide to bring a representative you should notify the Head Teacher at least 3 working days in advance…”). There was nothing to indicate that she could not be accompanied by someone else had she requested this.

[167]We find as a fact that the Respondent did not operate a PCP which placed the Claimant at any disadvantage in terms of who could accompany her. The sickness absence review meeting 12 January 2017: Issues 2l -n; 6g-h

[168]On the whole, we preferred the recollection and interpretation of events at the meeting provided by Ms. Calahane and Ms. Grande-Imbernon, which was consistent with the minutes. We found, as all the evidence suggested, that the Claimant was very distressed at this meeting, which we are sure affected her interpretation and recollection of events.

[169]By agreement, the meeting began by going through the latest OH advice (from 19 December) point by point, and the Claimant was given the opportunity to elaborate. This was upsetting for the Claimant.

[170]The first point is that Ms. Calahane and Ms. Imbernon-Grande could not deal with the pay issue (the upgrading to UPS1) at this informal absence management meeting. This was a meeting designed to establish facts underpinning the Claimant’s absence.

[171]Ms. Calahane was aware that the Claimant intended to raise a grievance in relation to the investigation following the pay appeal; this is apparent from the minutes at p.927, where the Claimant confirmed “yes”. It is in that context that, at the meeting, the Claimant was advised to raise a grievance by Ms. Calahane and Ms. ImbernonGrande. The grievance procedure which was a separate process to the sickness management process; they could not deal with these together at the absence review meeting.

[172]The minutes demonstrate that the issue of the Claimant’s progression to UPS1 was not ignored. The Tribunal interpreted the evidence as proving that the Claimant was given practical advice, in good faith, as to how she could work to resolve this issue by way of a grievance.

[173]The Claimant was also critical of the conduct of Ms. Grande-Imbernon, alleging that she was belittling her problems and bullying her to agree to go back to work.

[174]We accepted the evidence of Ms. Calahane as to why she asked Ms. GrandeImbernon to be present. Also, we accepted Ms. Stalham’s evidence that the Claimant was upset when confronted by direct approaches from management conflicting with her interpretation of matters.

[175]Ms. Grande-Imbernon, who had previously had no contact with the Claimant, was likely to have been more direct at the meeting than Ms. Calahane. This is no criticism and, having seen her in evidence, we found that her more direct language was probably due to English being her second language. We found that the minutes of the meeting [927, bottom three paragraphs] were an accurate example of what was said to the Claimant by Ms.Grande-Imbernon. These show that she did not pressure the Claimant to return to work but that she did warn the Claimant that her absence could not be sustained. We find that it was reasonable for Ms. Grande-Imbernon to give that guidance in that context. (The earlier reference to a phased return to work did not come from her, but from the OH advice in the context of advice about the future, when the Claimant was fit to return).

[176]After this passage, the Claimant told Ms. Imbernon-Grande that she was missing the point and stated that she was not off due to being unhappy with her pay. Ms. Imbernon-Grande responded that the Claimant herself had said “how can I return to work until the pay is resolved?” This led to the Claimant becoming very distressed, and the minutes state: “SF was very upset at this point (Sobbing and catching her breath). SF said ‘You don’t understand, it’s not just about pay its everything’ ‘It’s such a big deal to me, I feel hopeless everyday’ ‘Things are very bad’ ‘Sometimes I wake up in the morning thinking what’s the point in getting up, it would be better if I wasn’t here’.

[177]This led to Ms. Calahane and Ms. Imbernon-Grande becoming alarmed for the Claimant’s health and safety. They discussed her home situation, whether she had counselling and the need for a further OH referral.

[178]At this point of the meeting, the Claimant was distressed and crying. It is in that context that Ms. Calahane, made the comments recorded in the minutes as follows: “GC advised it is evidence SF is very unhappy and clearly miserable at the moment. GC said that pay is not as important as health and that the requirements for UPS are gruelling, taking on that additional responsibility may not be good for SF right now. SF commented ‘I was at the time’.”

[179]The Claimant put a negative interpretation on those words, as being demeaning. We find that those words were used by Ms. Calahane in a genuine attempt to be supportive. We accepted what she said in cross-examination as true.

[180]After this meeting, Ms. Calahane investigated whether the Respondent could arrange counselling and found that it could not through OH; but she referred the Claimant to OH again [referral at 963-965]. Claimant’s Grievance: issues 2o, p, q, r, t, u, v and 6i-j

[181]By email 16 January 2017, the Claimant filed a grievance [955-960]. This included four points (each marked by a bullet point): 181.1. lack of adequate support; 181.2. failure to support an application for progression through UPS1, alleging a failure to advise her what evidence she might produce herself; 181.3. failure to pay annual leave entitlement whilst on sick leave from November 2014-November 2015; 181.4. Point 4 was a complaint about Ms. Imbernon-Grande’s behaviour at the meeting on 12 January 2017.

[182]Ms. Calahane collected evidence in the form of statements from those directly relevant to the grievance, Ms. Stalham and Ms. Imbernon-Grande.

[183]In respect of Point 3, Ms. Calahane made an enquiry of e-payroll. Subsequently, Ms. Calahane advised her that no pay was owed for accrued holiday entitlement for 2014-15, and that this had been verified by Essex HR. (These documents [1046-1047] were sent in the bundle of documents sent to the Claimant ahead of the grievance hearing due on 7 March. At no time did the Claimant provide evidence, or another form of calculation, to challenge these figures.)

[184]Crystal Wiggs, director of the IEB and head of another school, was appointed to investigate the grievance. She collected the pack of documents on 2 February, from the School. Subsequently, she was sent the OH advice of 30 January, which stated the Claimant was fit to attend any meetings but recommended various adjustments. These included allowing her to be accompanied by a “suitable person” (a term which was not defined), provision of a neutral venue, and providing information that forms the context of the meeting beforehand.

[185]By letter dated 8 February 2017, Ms. Wiggs invited the Claimant to a grievance hearing on 17 February 2017 (during half-term). This letter is a standard letter. It “You have the right to be accompanied at this hearing by a trade union representative or colleague. If you wish to submit any further written documentation please let me have this at least 3 working days before the hearing. I should be grateful if you would confirm by 14th February 2017 that you will attend this hearing, and, if you wish to be accompanied, the name and status of your representative.”

[186]The letter of 8 February is not a refusal of any sort as to who could accompany the Claimant. It is merely a letter completed from a template.

[187]By email dated 13 February 2017, the Claimant raised seven points. These included the following [1015]: “4) Regarding the Invitation to Grievance Hearing, you state: a) you will consider evidence gathered by all parties but I am not aware of this evidence as nothing has been disclosed to me prior to the hearing. b) I will be afforded the opportunity to make verbal representations – this however will present some difficulty for me without full disclosure ahead of the hearing, particularly considering my current ill-health. c) if I wish to submit any further written documentation, to do so at least 3 working days before the hearing. However, as the investigation was not a collaborative exercise and no disclosure has yet been made of the evidence gathered by all the parties, it is impossible for me to know what else I could provide that would be useful to the hearing. Referring to most recent Occupational Health advice (at point 4 of 4) it is recommended that, “providing with information that forms the context of the meeting beforehand to enable (me) to prepare (myself) in advance”. Particularly in light of the advice above, I would like to request full disclosure of the outcomes of the investigation stage of my grievance as per points 3), 4)a), 4)b) and 4)c). 5) Additionally, I attended a SAMP review meeting on Thursday 12.01.17 at Winter Gardens Academy where minutes were taken and to date, a copy of these minutes has not been provided for me to check and keep for my records. Please provide a copy of these minutes. 6) Further O.H. Advice has been given regarding meetings. They recommend allowing comfort breaks and using a neutral location (at points 2 of 4, and 3 of 4) both of which you appear to have considered for the Grievance Hearing scheduled for 17.02.17, thank you. Point 1 of 4, most recent O.H. Advice concerns allowing me to be accompanied by a suitable person. At 5.4.3 of the Grievance Procedure, I have the right to be accompanied at this meeting by a TU rep, an official employed by a TU or a work colleague. Your letter inviting me to the hearing uses this criteria to define who I may be accompanied by. As I have previously informed you … I am not in a TU and not in touch with any work colleagues whilst I have been signed off from work. Details of my health, which should be private and confidential are not something I wish to be shared with a work colleague who attends this hearing with me either, particularly when the majority of teachers I now work with are not well known to me given the recent history at the school. Therefore, the criteria have the effect of preventing me from being accompanied at any meetings. The Trust has, on prior occasion, used less restrictive criteria to allow me to bring someone to meetings for moral support, indeed a relative attended the Grievance Hearing with me chaired by Tosca Boothman and this was very helpful in enabling me to attend. I am unclear of the reason for the change of the practice between that Grievance Hearing and more recent meetings (SAMP and this scheduled Grievance Heading) but applying criteria to the job of a person who accompanied me to meetings is preventing me from being supported and this is to the further detriment of my health. O.H. have given me advice in this regard and I feel I must put my health first and insist that either the criteria be applied less restrictively and I be allowed to bring a friend or relative for moral support or, should this be a problem … that the Hearing be conducted by documents only – a paper hearing. Please advise.”

[188]The Claimant required a response that day or on 14 February, before she could confirm the name and position of any person attending with her, or her own attendance.

[189]By email of 14 February [1017-1019], Ms. Wiggs responded. This was very difficult for Ms. Wiggs, given her duties and her child care responsibilities, but she did so, sending the email in draft to HR for advice before sending it in final form to the Claimant.

[190]In her response, on the question of accompaniment, Ms. Wiggs stated that the Grievance Policy, 5.4.3, stated that the employee has the right to be accompanied at the meeting by the category of persons specified. Ms. Wiggs informed the Claimant that she must choose from this criteria if she wanted to be represented. Ms Wiggs had considered the OH advice that the Claimant be permitted to be accompanied by a “suitable person”, but honestly believed that this referred to the criteria of persons specified in the Grievance Policy, whom she believed would be supportive to the Claimant. We find, however, that Ms. Wiggs did refuse the Claimant the opportunity to be represented by a family member or friend in this letter of 14 February.

[191]On the issue of providing information for the context to the meeting, Ms. Wiggs quoted the Grievance Policy that “this may involve discussions with witnesses and, normally, the persons identified in the grievance.” She did not understand the OH advice to require her to disclose all the evidence in her pack. She explained in her email that this was not necessary, because the purpose of the formal stage was to allow the employee to set out their grievance and the remedy sought. This was, in effect, a refusal to provide the Claimant with the documentation that she had which was relevant to the grievance investigation.

[192]The Claimant perceived Ms. Wiggs’ email of 14 February to be hostile. We found that it was not reasonable for both the email and the refusals within it to have this effect. Ms. Wiggs had gone to some trouble to respond to all points raised at short notice, had explained that she was following the Grievance Policy, had explained what adjustment had been made, and there was nothing to indicate that, when she sent the response of 14 February, that she was ignoring adjustments nor deliberately avoiding the Claimant’s concerns.

[193]Ms. Wiggs’ response was consistent with her not understanding the adjustments sought. We found that she was inexperienced as a grievance hearing officer (this was her first grievance) and that she acted in good faith, taking HR advice. At the time of her response, Ms. Calahane was on holiday.

[194]On 16 February 2017, the Claimant sent a long email to Ms. Wiggs stating that she would not be attending and explaining why [1032-1036]. She complained that Ms. Wiggs did not consider adjustments because she did not understand how helpful they were or because she did not want to help. This put a negative interpretation on what had happened. The email contained a subject access request under the Data Protection Act 1998.

[195]The grievance investigation meeting did not go ahead. Given that the meeting was re-arranged, with all the adjustments requested, the Claimant suffered no detriment.

[196]In response, Ms. Wiggs immediately stated that it had never been her intention to cause distress, but only to carry out the investigation within the policy.

[197]Ms. Wiggs referred the subject access request to Ms. Calahane, who went about collecting the relevant data.

[198]As soon as she returned from leave, on 21 February, Ms. Calahane emailed the Claimant, apologising for the delay, and explaining that she had made recommendations for the Grievance Procedure to put into effect the OH advice including a companion of her choice and provision of an investigation pack 7 working days prior to the hearing [1048]. In other words, Ms. Calahane ensured that the adjustments sought by the Claimant were made as soon as she knew of the request for them in respect of the grievance hearing.

[199]By letter 22 February [1059], Ms. Wiggs invited the Claimant to the re-arranged grievance investigation meeting on 7 March. This invitation offered adjustments including that the Claimant could attend with a companion of her choice. Moreover, it stated that any relevant documentation for the investigation would be provided to her at the earliest opportunity. An agenda was included with the letter. The letter also asked if there were any further adjustments sought by the Claimant for her to consider.

[200]Ms. Wiggs understood that the subject access request had been complied with by Human Resources, and did not herself re-send the evidence.

[201]On 1 March, the Claimant received the grievance investigation documentation in a bundle, less than seven working days before the hearing. This was due to an accident in the bundle going out later than Ms. Calahane had intended. Although, applying the procedure set out in the correspondence, the Claimant only had 24 hours to respond to indicate any documents she would rely upon, the Claimant could have asked for this to be adjusted, because the correspondence from both Ms. Calahane (such as p.1048) and from Ms. Wiggs all indicated that they wanted the grievance dealt with fairly.

[202]In cross-examination, the Claimant agreed with the suggestion that she thought some of the documents or parts of them were made up of lies. There was no factual basis set out for that perception.

[203]The documentation contained a statement from Ms. Stalham [989-989A], which the Claimant believed contained untrue statements. As we have indicated already, we found Ms. Stalham to be a reliable witness. Having studied the statement prepared by her for the grievance investigation, and having heard her oral evidence, we found that this statement was true, being consistent with the documents referred to in it and her oral testimony.

[204]In addition, the Claimant did not agree with the content of the meeting note from November 2016 [1098, 830], made by Ms. Stalham, which was disclosed at the same time. We found that this note of meetings was accurate and not a fabrication.

[205]The grievance documentation also contained an annual salary statement for the Claimant [1107], which stated, incorrectly, that the Claimant was at UPS1. On 14 March, Ms. Calahane left a voicemail for the Claimant, apologising for this error and followed this with an email apologising [1134].

[206]In evidence, Ms. Calahane took responsibility for the error. The Claimant did not think it was a genuinely administrative error, but did not particularise why, save that there was something questionable about the date of it.

[207]We found that this was a mistake made by a person unknown, which in the experience of the Tribunal can happen in organisations. Ms Calahane could not explain how it had happened; she was upset and embarrassed by it.

[208]The Claimant alleged that this error was a breach of contract, or an act forming part of a series, amounting to a breach of the implied term of trust and confidence. We find that this error was incapable of amounting to such an act. Moreover, we found that, although the Claimant perceived this created a hostile environment, it was not reasonable for it to have this effect. It was a mistake, followed by a swift apology.

[209]On 3 March, the Claimant informed Ms. Calahane that she was not well enough to attend any meetings. Ms. Calahane made a further referral to OH, to see what further steps could be taken to facilitate a grievance meeting, after which a third and final grievance meeting would be arranged.

[210]By letter of 21 March 2017 [1146], the Claimant was invited to a further grievance meeting on 31 March, with an explanation of adjustments being put in place to facilitate the meeting. The Claimant had clear warning that the grievance would be heard if she did not attend. The letter included: “It has been identified by Occupational Health that resolution to your pay related issue is fundamental to your recovery. In consideration of this advice I must inform you that should you be unable to attend this date we will proceed with the hearing in your absence. This will mean that, as Grievance Investigation Manager, I will review all evidence gathered to date in order to come to conclusions in the absence of any verbal presentation from you.”

[211]Ms. Wiggs had a copy of a quite recent OH advice (from 30 January 2017). It was reasonable for her to decide not to delay the grievance hearing further by waiting for the further OH advice, because in the circumstances, this further advice would have no material effect on the grievance and the adjustments sought by the Claimant had already been made. We concluded that Ms. Wiggs acted from the best of intentions – which was to move the grievance forward so as to increase the prospect of the Claimant returning to work.

[212]We concluded that, particularly at this stage, the Claimant was extremely sensitive to the actions of her employer, and overreacted to decisions that she could not accept.

[213]The Claimant alleged that it was an act of harassment to arrange a meeting, and to state that it would go ahead whether or not the Claimant attended, before the OH advice was received. While we accept that, taking a broad causation test, these acts were related to the disability of the Claimant, we have found that it was not reasonable for this act to have the proscribed effect.

[214]We find that it was a reasonable and sensible step to take to arrange the grievance hearing, to avoid time being wasted before the grievance hearing occurred. Moreover, the hearing of the grievance was designed to help the Claimant to return to work, because the medical advice from OH was that resolution of the pay issue was a hurdle to her return.

[215]The Claimant responded at length to the further invitation, by email of 28 March [1175-1181]. The Claimant stated that she was prepared to attend the hearing. The email, however, requested a number of further documents as part of the Subject Access Request, which she wished to be part of the evidence bundle. This request covered three pages.

[216]Ms. Wiggs had, as far as she was concerned, complied with the SAR. Moreover, she believed that her remit did not extend to considering the further documents that the Claimant now sought to add to the bundle. The Claimant herself had not provided any further evidence after submission of her grievance.

[217]Ms. Wiggs took HR advice again. By her response of 29 March [1201], Ms. Wiggs stated that she would take into account the Claimant’s evidence and other evidence referred to in her email, and that she was committed to hearing the grievance fairly and making adjustments to enable the Claimant to attend.

[218]The Claimant responded by email of 30 March 2017 [1234] at 2.18pm. She explained that her anxiety made her question concerns to the point of panic; and that she requested documentation not to be difficult but because it was necessary to answer her questions and minimise her symptoms, so as to enable her to attend the meeting. The Claimant explained that the documents requested should have been “readily available” and they were necessary.

[219]Whilst we find that this response did reflect the effect of the Claimant’s mental impairment at the time, we preferred Ms. Wiggs’ evidence that the documents were not necessary for the purpose of the grievance meeting, and that they would not have been readily available.

[220]Ms. Wiggs had no opportunity to reply further. The Claimant failed to attend on 31 March and did not request an adjournment.

[221]The OH advice had been received on 29 March. This advised that the Equality Act 2010 may apply to the Claimant, because of the long-term nature of her condition. It stated that the Claimant was fit to attend the grievance hearing [1183] and recommended adjustments (which were those made).

[222]Ms. Wiggs decided to proceed with hearing the grievance, in the absence of the Claimant, because she could not understand why she could not attend, nor what else she could do to facilitate her attendance. She took advice from HR and took into account that it was not easy to arrange a meeting given the need to secure her own availability, a location and a Clerk.

[223]Ms. Wiggs dealt with the grievance on the basis of the evidence that she had before her, including that listed at paragraph 30 of her statement. As noted above, the Claimant provided no evidence or alternative calculation to that provided by Ms. Calahane in respect of Point 3.

[224]We find that there was nothing unreasonable in the approach by Ms. Wiggs to proceed to hear the grievance on 31 March 2017. To the extent that it undermined the Claimant’s trust and confidence in the Respondent, it was not reasonable for it to do so, particularly in circumstances where relevant disclosure had been provided, where the Claimant had been warned that the grievance hearing would proceed if she did not attend, and where the Claimant had not applied for an adjournment (and, at first, had indicated that she would attend). Subject Access Request (“SAR”): Issue 2s

[225]The Claimant complains that the Respondent failed to comply with a subject access request throughout her employment.

[226]As noted above, the Claimant made a subject access request on 16 February 2017. This was not limited to evidence relevant to the grievance, but included a request for “all personal data” [bottom 1033].

[227]Ms. Wiggs referred the SAR to Ms. Calahane. Both initially viewed the request as being for documents relevant to the grievance only.

[228]Ms. Wiggs genuinely believed that she had complied with it by providing all the documents that she had in her possession to Ms. Calahane, including statements and investigation documents carried out to date.

[229]Ms. Calahane genuinely believed that she had complied with the SAR by the provision of the grievance bundle of documents provided to the Claimant.

[230]On receipt of the further request for documents on 30 March 2017, Ms. Wiggs requested Ms. Calahane to provide further disclosure be made available at the grievance hearing, so far as this was possible. It was not feasible for Ms. Calahane to comply within this timescale.

[231]On the face of it, the Respondent failed to provide all the Claimant’s personal data within 40 days of the request.

[232]Ms. Calahane did, with the support of HR, locate the remainder of the documents sought. These did not arrive with the Claimant until 27 April 2017 (as stated by the Claimant during cross-examination). The allegation that the SAR was not complied with until the end of her employment is not correct.

[233]In cross-examination, the Claimant stated as follows, when asked if it was her case that the provision of the remaining documents was deliberately delayed to April so that she would not have them for the grievance hearing: “My issue is when I am saying its clear what I need for hearing, and OH saying I am fit to attend when feel fit, this is an adjustment to let me prepare and not to be given at last minute, when there is a deadline and given late; rather than go ahead without me, meeting should been moved. Paperwork should been provided before not after Grievance Meeting”.

[234]The Claimant’s case was not, therefore, that there was deliberate withholding of these further documents. In these circumstances, we did not find that the delay in provision of the Claimant’s personal data, even if technically a breach of her legal right to her data, was likely to destroy the relationship of trust and confidence.

[235]The failure to comply with the SAR within 40 days was not likely to destroy the relationship of trust and confidence. It occurred because the Respondent’s witnesses did not at first understand the Claimant to be seeking all personal data held, including any documents she referred to in her email of 30 March which actually existed. To the extent that this failure did affect the Claimant’s trust and confidence in her employer, it was not reasonable for it to do so, given that the Respondent had provided substantial disclosure before the date of the planned grievance hearing on 31 March 2017 and given that Ms. Wiggs did not refuse to provide the Claimant with the additional documents that were specified very shortly before the grievance hearing. Grievance Outcome: Issue 2w

[236]On 6 April, the Claimant was sent the outcome letter, explaining the grievance was not upheld [1246-1252]. This enclosed the minutes of the grievance hearing [1238].

[237]The Claimant alleges at paragraphs 338-346 of her statement that the grievance outcome contains numerous flaws. We found that the alleged “flaws” were in reality decisions that the Claimant disagreed with, and that the Claimant’s evidence demonstrated her overreaction to the decisions reached. For example, paragraph 346 of the Claimant’s witness statement demonstrates the extent of her reaction: “The Outcome letter is incorrect throughout and that is what I feared would happen from limiting the documentation I could have access to when somebody partial was controlling the documents included for the hearing.”

[238]We found that there was nobody “partial controlling the documents”. This belief was the product of the Claimant’s tendency to perceive the cause of events in a negative way.

[239]In cross-examination of Ms. Wiggs, the Claimant particularised what she disagreed with, including that adjustments did not fully take account of her needs: the adjustment after the first hearing (to receive documents within a certain time-scale, 7 working days before the next hearing) was not made; and documentation was not used in the outcome, because it was not provided by the Respondent.

[240]We accepted the measured evidence of Ms. Wiggs that she had done what she could to adjust the grievance procedure to promote the Claimant’s ability to attend.

[241]We accepted that Ms. Wiggs had reached the conclusions that she had for the reasons set out in the decision letter. Ms. Wiggs addressed each the points of the grievance in turn, including point 3. There was no evidence that she had reached those conclusions to deliberately upset or demean the Claimant. We found that she conducted the grievance with diligence, which was corroborated by the chronology of events and the documents. The Tribunal noted that Ms. Wiggs was cross-examined at length on her conclusions, but we found her evidence credible and detailed when explaining away points put to her.

[242]We did not find that the decision reached on each point was unreasonable or incorrect, on the evidence that Ms. Wiggs had before her. It is difficult to criticise Ms. Wiggs for not addressing in the outcome letter points put to her in crossexamination, which were not put to her by the Claimant at the time of the grievance hearing. There was a specific complaint that the Respondent was “moving the goalposts” by delaying the re-grading and pay issue, which the Pay Appeal in 2015 had re-directed back to the School for determination. We accepted the following answer from Ms. Wiggs on this point: she could only look objectively at the evidence as it stood before her; the Performance management and stress risk assessment paperwork was signed by the Claimant; and she did not just accept what she was told by one side.

[243]Moreover, the grievance outcome did engage with the grading issue and, in the “Redress” section, made practical recommendations to promote the Claimant’s ability to move through the threshold to UPS1, even though the grievance was not upheld [second bullet point, 1250].

[244]In respect of Point 3 of the grievance (whether the Claimant had received any annual leave entitlement whilst on sick leave between November 2014-November 2015), Ms. Wiggs determined that this had been investigated and responded to by Ms. Calahane. In the absence of any evidence or argument from the Claimant, this was not a surprising conclusion. We did not consider this evidence that Ms. Wiggs acted unreasonably or in error in reaching this conclusion.

[245]In the circumstances, given the adjustments made for the Claimant to enable her to attend, the OH advice (that she was fit to attend), and the disclosure already provided, it was not a breach of the implied term of trust and confidence for Ms. Wiggs to hold the grievance hearing and determine the grievance. The intention of Ms. Wiggs was to hold the grievance and facilitate the Claimant’s return to work. The Grievance Appeal: Issue 2y and 6k

[246]By email of 13 April 2017 [1256], the Claimant appealed the grievance outcome. The grounds of appeal alleged that: 246.1. the grievance hearing was improperly and inadequately informed due to the documentation, which failed to consider relevant information (which was not specified); 246.2. the Respondent had breached its duty under the Data Protection Act by failing to comply with the SAR, preventing the Claimant from citing evidence; 246.3. the hearing occurred without necessary steps being taken to enable the Claimant to attend and present her grievance, in breach of Equality Act 2010; 246.4. Point 3 had not been determined at all; 246.5. the grievance was improperly handled, the investigating officer acted unfairly, and further acts of victimisation occurred.

[247]By letter dated 2 May 2017, the Claimant was invited to a grievance appeal hearing on 9 May.

[248]On 5 May, a “without prejudice” letter was received from solicitors instructed by the Claimant. Neither party made any attempt to refer to the contents of this correspondence.

[249]The grievance appeal was temporarily postponed pending a decision on a response to this letter.

[250]On 9 May, the Claimant’s solicitor spoke to Ms. Calahane directly and was informed that the grievance appeal was temporarily postponed. There was a dispute over the calculation of sick pay, with Ms. Calahane explaining that Payroll calculated sickness absence over the qualifying year, not over the current period of absence.

[251]The Respondent decided to continue to progress the grievance appeal once it believed that the “without prejudice” discussions were concluded. We heard and saw no evidence about the content of those discussions.

[252]By letter dated 11 May, the Claimant was invited to a further grievance appeal hearing on 16 May 2017.

[253]From the Tribunal’s inquiry, the Claimant’s complaint was that the grievance appeal had been re-arranged at short notice. It is apparent that less than five working days’ notice were provided. From the Claimant’s perspective, this was contrary to the time provided for in the grievance procedure. On the other hand, the Claimant had previously been told that the grievance appeal was postponed temporarily, not that it would be postponed to a particular date; and the Claimant did not ask for a further postponement.

[254]We found that the relevant paragraphs of the Claimant’s witness statement did not provide evidence to explain why the conduct of the Respondent over the grievance appeal was a breach of the implied term of trust and confidence, nor whether the proscribed environment within section 26 EA 2010 was created. For example, at paragraph 346, the Claimant states that she was wary of walking into “another ambush”, but we found that this was a further illustration of her perception that what occurred was hostile to her, without the evidence to support such a belief.

[255]In all the circumstances, although this was technically a breach of the grievance procedure, it was not a repudiatory breach or a breach of the implied term of trust and confidence. It was not calculated to destroy that relationship; and, if the Claimant believed that it did so, it was not reasonable for it to have that effect.

[256]The Claimant identifies the act of temporarily postponing, then arranging a further grievance appeal at short notice, as an act which breached the implied term of trust and confidence, or which formed part of a series of acts which did so. We did not agree. Indeed, the Respondent’s grievance procedure required that the grievance appeal to be heard. The Respondent was entitled to decide that the “without prejudice” discussion was at an end.

[257]We find that the grievance appeal was not unwanted. The Claimant herself had appealed. In any event, the decision to re-arrange the appeal did not create the environment proscribed by section 26 EA 2010; but, if it did create such an effect on this Claimant, it was not reasonable for it to do so. Informal sickness absence review meeting: Issues 2z and 6l-m

[258]In her letter of 21 February 2017, Ms. Calahane had explained to the Claimant that she was managing the Sickness Absence Management procedure, but that she would not progress this until the grievance was resolved. The Tribunal found this to be fair and reasonable. It was a step designed to minimise stress to the Claimant.

[259]Subsequently, the OH report dated 28 March 2017 was produced. It stated that once the Claimant was in a position to return to work, redeployment may be an adjustment to consider.

[260]By letter of 9 May 2017, Ms. Calahane invited the Claimant to an informal absence review meeting on 12 May 2017, advising her that she could be accompanied by a companion; there was no restriction on the identity of the companion [1413].

[261]It is inaccurate to allege that there were months of no action in respect of the Sickness Absence Management procedure, nor that the Claimant was prejudiced by any such delay. The Respondent had worked since the Claimant made her grievance towards having the grievance determined before the sickness absence was addressed, with a view to assisting the Claimant to recover so she might return to work. The Claimant placed a negative interpretation on Ms. Calahane’s attempt to progress the procedure, which was done with the intention of getting the Claimant back to work.

[262]By the date of her letter of 28 April, Ms. Calahane had been informed that the Claimant could be transferred to another local primary school, if she was agreeable to this. Ms. Calahane hoped that this proposal could be made at the meeting, and that it might help the Claimant in her recovery.

[263]On 11 May 2017, the Claimant emailed Ms. Calahane seeking a further referral to OH, querying how the report of 28 March would assist the meeting (arguing that it had been sought for the purpose of an inquiry about suitable adjustments ahead of the grievance hearing on 31 March 2017). [1418a]

[264]Ms. Calahane responded later that day, explaining that the OH report had addressed ways in which the Claimant might return to work, and explaining that she did still wish to meet with the Claimant informally for an absence review. We note that this OH advice was only six weeks’ old by the date of this correspondence.

[265]The Claimant emailed again on the same date, stating that there was little time for a companion to be arranged [1418a].

[266]In a subsequent email, on 11 May, Ms. Calahane asked whether the Claimant was going to attend the meeting; she informed the Claimant that the meeting would be postponed unless she heard from her that evening or before 08.00 in the morning [1418].

[267]There is nothing in these emails from Ms. Calahane of 11 May which is unreasonable or likely to affect the relationship of trust and confidence. In the circumstances, they were reasonable emails to send.

[268]On 12 May 2017, Ms. Calahane emailed [1421] to inform the Claimant of her disappointment at the lack of communication; and that she would not attend the meeting, unless the Claimant confirmed that she would attend. She also warned the Claimant that she was going to telephone her.

[269]On the same date, to ensure that the Claimant did not attend and find Ms. Calahane absent, Ms. Calahane telephoned her. Ms. Calahane did not usually call the Claimant; she did so on this occasion because she believed that it would help, by avoiding any distress that might be caused if the Claimant attended and found Ms. Calahane absent and, also, to save herself time (Ms. Calahane lived 90 minutes’ drive from the neutral venue selected for the meeting).

[270]Moreover, Ms. Calahane warned the Claimant in advance [1421] that she was due to call. It was some months earlier that the Claimant had stated that she preferred email communication (not that she did not want to receive any telephone call for any reason); and there was no evidence that the Respondent had called her after that request on any other occasion.

[271]There is no allegation that Ms. Calahane said anything offensive or upsetting in the call; she merely conveyed facts to the Claimant. The call was a necessary precaution to ensure that the Claimant did not attend when Ms. Calahane would not be there.

[272]The Claimant thanked her for calling, but remained silent during the call.

[273]Ms. Calahane did not, in her professional work, text employees. Drawing on its experience, the Tribunal found that it was reasonable not to text the Claimant in these circumstances.

[274]The Tribunal found that these events on 11 and 12 May 2017 were not capable, as a matter of fact, of amounting to a “last straw”. Objectively viewed, they were not capable of contributing to a breach of the implied term of trust and confidence, even though the Claimant perceived them in a negative way. We found that Ms. Calahane carried out these actions in good faith; they were not carried out because of any past event, and these acts were not designed or intended to upset the Claimant nor to affect her trust and confidence in her employer.

[275]For example, in her email of 12 May at 08.22, Ms. Calahane stated that she would leave a message on the Claimant’s mobile that morning, indicating that she did not anticipate speaking to the Claimant; and the email concluded with Ms. Calahane stating that she would be making another referral to Occupational Health, indicating that the Claimant would face no sanction by her non-attendance.

[276]In these circumstances, the Tribunal found that this email and this telephone call to the Claimant on 12 May were reasonable steps to take. The Tribunal found that these steps were not done to damage the relationship of trust and confidence, nor were they likely to do so; and if they were interpreted to do so by the Claimant, it was not reasonable for them to have this effect in these circumstances.

[277]Moreover, these acts on 12 May 2017 were not capable of amounting to a last straw, even if previous events were capable of forming part of a series of events amounting to a breach of the implied term of mutual trusts and confidence. Resignation

[278]On 15 May 2017, the Claimant resigned with immediate effect, by way of a resignation letter [1427-1429]. This summarized a list of complaints similar to or the same as those in these proceedings. It concluded by alleging a continuing state of affairs which had adversely affected her: “I should point out the above is only a highlight of what has happened to me over the last few years. I do not believe anything but resigning will stop you from trying to manipulate the situation of being my employer and able to schedule meetings for me to attend in order to try and find ways to cover yourselves where you can see errors and failings but do not want to address these properly and fairly.” Grievance Appeal

[279]The grievance appeal went ahead in the Claimant’s absence on 16 May 2017. We accepted the evidence of Mr. Carver, who was Chair of the appeal panel.

[280]The Claimant was first invited to this appeal by letter dated 2 May, with a hearing date of 9 May 2017.

[281]The hearing was postponed, and by letter of 11 May, a further date for the appeal hearing, 16 May, was fixed. The Respondent failed to give the Claimant 5 working days’ notice of the appeal hearing on 16 May, but the Claimant had more than 5 working days’ notice of the appeal hearing in total, due to the postponement of the hearing scheduled on 9 May 2017. Pay: September 2016 to August 2017; Issues 20 – 21

[282]It was agreed that the Claimant was paid wages up to her dismissal based on a salary of £32,834 for the academic year September 2016 to August 2017. Her case was that she was due a higher salary over that period, and that the Respondent had failed to take into account a 1% pay rise to which she was entitled. This part of the case is unusual insofar as the Respondent agreed that a 1% pay rise was due; it claimed that this sum was paid to her from April 2016 in error (and that it should only have been paid from September 2016). We heard no evidence about how such an error could have arisen.

[283]The Claimant relied on the Department of Education’s “School Teachers’ pay and conditions document 2016” [1814ff]. This confirms that a 1% pay rise was due from 1 September 2016 – but the list of schools to which it applies does not contain Academies.

[284]The Claimant alleged that she was entitled to be paid the maximum salary within the main pay range, which is recorded as £33,160 in the table at 13.1 [1822]. Her unchallenged evidence was that she was at M6, which was at the top of the main pay scale. We noted that a 1% increase to £32,834 does amount to about £33,160.

[285]The Claimant contended that the Respondent’s Pay Policy for September 2016 – August 2017, at p.1729, was in error, because the “Performance Progression Stage 6” (or M6) figure had not been adjusted upwards by 1%. This Pay Policy shows the M6 salary as £32,834.

[286]The Respondent’s Pay Policy states, at point 16, that it “will ensure appropriate salary protection/safeguarding for teachers in accordance with the School Teachers’ Pay and Conditions Document”. The Department of Education’s Pay and Conditions Document states the following at 12.2: “Any pay increase or safeguarded sum (for the safeguarded period) awarded to a teacher on the main pay range, the upper pay range or the unqualified teacher pay range in accordance with Parts 3, 4 and 5 or any movement between those pay ranges must be permanent for as long as the teacher remains employed within the same school but is not otherwise to be deemed to be permanent by operation of the terms of this Document or any earlier Document.”

[287]Although the Pay and Conditions Document gives minimum and maximum salaries only, which entitled the School to pay within the range, the Claimant’s point in this case is that she was being paid at the top of the range already, prior to the 1% pay rise. Further, she contended that the Transfer of Undertakings (Protection of Employment) Regulations 2006 applied.

[288]We agreed that the TUPE Regulations applied when the School was taken over by the Respondent Academy. On the facts, we could not see how it could be otherwise. We heard no evidence and no reasoned argument to the contrary.

[289]Given that the TUPE Regulations applied, the Claimant’s terms and conditions remained unchanged after the transfer. The Claimant’s permanent contract of employment (dated 21 May 2014) is at p.265. This includes the following term: “Your general conditions of employment …will include: … (ii) The School Teachers’ Pay and Conditions Act 1991, and the School Teachers’ Pay and Conditions Document; …”

[290]Therefore, we found as a fact that the School Teachers’ Pay and Conditions Document at p.1814 was incorporated into the Claimant’s contract of employment. Accordingly, her salary increased to £33,160 from 1st September 2016. As a result, deductions were made from her salary between September 2016 and her resignation on 15 May 2017.

[291]The Claimant received her final salary payment on or about 26 May 2017. This would be the last in the series of deductions. The Claim was presented on 8 June 2017.

[292]It is important to record that this pay issue (the omission to pay the 1% pay rise, due as a result of the TUPE Regulations 2006) played no part in the Claimant’s decision to resign, evidenced by the fact that it is not referred to in the agreed list of issues. The Law Disability Discrimination: Definition of Disability

The Law

[293]Section 6(1) EA (like s.1 Disability Discrimination Act 1995) provides that a person has a disability if:(1) P has a physical or mental impairment;

(2) the impairment adversely affects P’s ability to carry out normal day to day activities;

(3) the adverse effect is substantial; and

(4) the adverse effect is long-term.

[294]The Respondent’s case on these issues were as follows: 294.1. The Claimant had a mental or physical impairment; 294.2. Such impairment did not have an adverse effect on her ability to carry out normal day to day activities; 294.3. Even if there was such an effect, it was not long-term.

[295]The Respondent did not contend that, if the evidence of the Claimant was accepted, the activities alleged to have been affected were not normal day-to-day activities.

[296]The Respondent pleaded (Amended Response p.71) that, in the event that the Claimant was found to be disabled, it was denied that it knew or reasonably ought to have known that she was a disabled person especially because OH had informed the Respondent over a lengthy period of time that the Claimant was not disabled.

[297]The authorities show that a purposive interpretation must be given to the statutory test when deciding whether a person has a disability. But the burden of proof lies on the Claimant to show that he meets this definition.

[298]In reaching its decision on the issue of whether a person is disabled under the Equality Act 2010, the Tribunal must take into account the “Guidance on matters to be taken into account in determining questions relating to the definition of disability”, issued under section 6(5) EA 2010 (the “Guidance”). We have considered relevant passages within the Guidance. Mental or Physical Impairment

[299]In considering what amounts to an 'impairment', its effect is what is of importance: see Guidance A8): “it is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded. … what is important to consider is the effect of an impairment not its cause.”

[300]In J v DLA Piper

[2010] ICR 1052

, when dealing with a stress at work case, the EAT provided the following guidance: “40 Accordingly in our view the correct approach is as follows:(1) It remains good practice in every case for a tribunal to state conclusions separately on the questions of impairment and of adverse effect (and, in the case of adverse effect, the questions of substantiality and long-term effect arising under it) as recommended in Goodwin v Patent Office

[1999] ICR 302

(2) However, in reaching those conclusions the tribunal should not proceed by rigid consecutive stages. Specifically, in cases where there may be a dispute about the existence of an impairment it will make sense, for the reasons given in para 38 above, to start by making findings about whether the claimant's ability to carry out normal day-to-day activities is adversely affected (on a long-term basis), and to consider the question of impairment in the light of those findings.

(3) These observations are not intended to, and we do not believe that they do, conflict with the terms of the Guidance or with the authorities referred to above. In particular, we do not regard the Ripon College and McNicol cases as having been undermined by the repeal of paragraph 1(1) of Schedule 1, and they remain authoritative save in so far as they specifically refer to the repealed provisions.”

[301]The Tribunal must not elevate the “impairment” issue into a separate hurdle for the claimant to jump, because requiring a mental impairment to be proved by expert medical evidence with a precise diagnosis may pose an impossible or very difficult test for a Claimant to meet. At Paragraph 38, the EAT found, with emphasis added: “38 We can go much of the way with Mr Laddie's submission. There are indeed sometimes cases where identifying the nature of the impairment from which a claimant may be suffering involves difficult medical questions; and we agree that in many or most such cases it will be easier – and is entirely legitimate – for the tribunal to park that issue and to ask first whether the claimant's ability to carry out normal day-to-day activities has been adversely affected – one might indeed say “impaired” – on a long-term basis. If it finds that it has been, it will in many or most cases follow as a matter of common sense inference that the claimant is suffering from a condition which has produced that adverse effect – in other words, an “impairment”. If that inference can be drawn, it will be unnecessary for the tribunal to try to resolve difficult medical issues of the kind to which we have referred. This approach is entirely consistent with the pragmatic approach to the impairment issue propounded by Lindsay J in the Ripon College case and endorsed by Mummery LJ in McNicol's case. It is also in our view consistent with the Guidance. Paragraphs A3-A4 of the Guidance read as follows …”

[302]The EAT in J v DLA considered the Tribunal’s distinction between clinical depression, a mental impairment, and a reaction to adverse circumstances at work, which is not a mental impairment. This is not a helpful distinction, because the borderline between the two is often blurred, and leads to a circularity of argument: what amounts to clinical depression may well be a severe adverse reaction. The EAT continued at paragraph 42, as follows: “Fortunately, however, we would not expect those difficulties often to cause a real problem in the context of a claim under the Act. This is because of the long-term effect requirement. If, as we recommend at para 40(2) above, a tribunal starts by considering the adverse effect issue and finds that the claimant's ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for 12 months or more, it would in most cases be likely to conclude that he or she was indeed suffering “clinical depression” rather than simply a reaction to adverse circumstances: it is a common sense observation that such reactions are not normally long-lived.”

[303]The above passage was followed by the EAT in Herry v Dudley Metropolitan Council

[2017] ICR 610

. The facts in that case were somewhat different. At paragraph 56, the EAT held: “56 Although reactions to adverse circumstances are indeed not normally long-lived, experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities. A doctor may be more likely to refer to the presentation of such an entrenched position as stress than as anxiety or depression. An employment tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by an employment tribunal) are not of themselves mental impairments: they may simply reflect a person's character or personality. Any medical evidence in support of a diagnosis of mental impairment must of course be considered by an employment tribunal with great care; so must any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee's satisfaction; but in the end the question whether there is a mental impairment is one for the employment tribunal to assess.”

[304]In J v DLA Piper, the EAT also considered Morgan v Staffordshire University

[2002] ICR 475

, which concerned a claim of mental impairment determined under the Disability Discrimination Act 1995, when the statutory definition included a requirement on the claimant to prove the impairment was clinically well-recognised. Morgan was considered as follows at paragraph 44: “It thus cannot now be relied on as a guide to the law as it now stands. As noted above, the tribunal in the present case referred to an observation by Lindsay J, at para 20(3) (p 484 e-f), that “such loose terms … as ‘anxiety’, 'stress' or ‘depression’” would not “suffice”. The tribunal's summary fails to reflect the context of that observation, which was specifically directed at the need to prove a clinically well-recognised illness; and the reference was to that extent inappropriate. However, it is fair to say that a similar, though more general, point seems to us to be valid in the context of the Act in its current form. As we have observed above, both laymen and some health professionals too often use loosely terms such as those referred to by Lindsay J, and the reminder remains appropriate that in considering both the adverse effect issue and the impairment issue tribunals may have to look behind the labels.”

[305]The relevant passages in Herry (paragraphs 54-56) do not depart from this guidance. We have, however, reminded ourselves of the point made by the EAT in Herry at paragraph 55, in response to paragraph 42 of J v DLA Piper: “We would add one comment to it, directed in particular to diagnoses of “stress”. In adding this comment we do not underestimate the extent to which work related issues can result in real mental impairment for many individuals, especially those who are susceptible to anxiety and depression.”

[306]We reminded ourselves that the Tribunal must focus on the impairment on the ability of the person to do (or not do) acts: Goodwin v The Patent Office [1999] IRLR, para 34 – 36. Medical evidence

[307]Whether a person is disabled within section 6 EA 2010 is not a question of medical opinion, but a question for the Court: see Abadeh v BT plc

[2001] IRLR 23

EAT. Whether an impairment has a substantial adverse effect is a question of fact for the Court, not a doctor: see Abadeh at para 9. Substantial

[308]A substantial effect is one which is more than minor or trivial: see Guidance, Para B1 and s.212 EA 2010.

[309]The fact that a claimant can only carry out normal day-to-day activities with difficulty or with pain does not establish that disability is made out. The Act is concerned not with any adverse effect but rather with a more than minor or trivial adverse effect.

[310]EA 2010 requires the Court to consider the “deduced effect” of the disability. Paragraph 5 of Schedule 1 EA 2010 provides that: “(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if:(a) measures are being taken to treat or correct it, and

(b) but for that, it would be likely to have that effect.”

[311]The Guidance states (at para C3) that 'likely should be interpreted as meaning that it could well happen, rather than it is more probable than not that it will happen'. Long Term

[312]Schedule 1 para 2(1) of the EA 2010 provides a definition of “long term”: “The effect of an impairment is a long-term effect if:(a) it has lasted at least 12 months;

(b) the period for which it lasts is likely to be at least 12 months; or

[313]An impairment which has had a substantial adverse effect, but where the effect has ceased, the substantial effect is treated as continuing if it is likely to recur: Sch 1, Para 2(2), EA 2010 and Swift v Chief Constable of Wiltshire

[2004] IRLR 540

. “Likely” in this context means “could well happen”.

[314]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 longterm: see Guidance C4.

[315]In determining whether the adverse effect of a person’s impairment was “likely to recur”, a Tribunal should not have regard to subsequent events, but determine the question on the basis of the evidence available at the time of the act alleged to constitute discrimination: McDougall v Richmond Adult Community College

[2008] ICR 431

, paragraph 24 (a case relied upon by the Respondent). Adverse effect on the ability to perform normal day-to-day activities

[316]This aspect of the statutory test is comprehensively addressed at Section D of the Guidance. Paragraphs D2 – D6 are useful guidance in most cases. The Appendix to the Guidance contains a helpful illustrative but non-exhaustive list of factors which it would be reasonable to regard as having a substantial adverse effect on normal day to day activities. Disability Discrimination

[317]In this case, two types of disability discrimination were alleged: failure to make reasonable adjustments (section 20-21 EA) and harassment (section 26 EA). The Tribunal directed itself to the relevant law as follows. Duty to make reasonable adjustments

[318]In practice, when hearing complaints of disability discrimination, an Employment Tribunal should first deal with the complaint alleging the failure to make reasonable adjustments: see Archibald v Fife Council

[2004] IRLR 651

at paragraph 32.

[319]Given the carefully drawn statutory duty to make reasonable adjustments, it is helpful to set out the relevant statutory provisions at the outset: “20 Duty to make adjustments(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.

(4) The second requirement is a requirement, where a physical feature 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.

(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. 21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person ...”

[320]A statutory Code of Practice on Employment has been published by the Equality and Human Rights Commission 2011 (“The Code”). Courts are obliged to take it into consideration whenever relevant. Chapter 6 is concerned with the duty to make reasonable adjustments, and emphasises that the duty is one requiring an employer to take positive steps to ensure disabled people can progress in employment. The Code320.1 The phrase “provision, criterion or practice” (which is not defined in the EA 2010) should be construed widely so as to include any formal or informal policies, rules, practices, arrangements including one-off decisions and actions.

320.2 Paragraphs 6.23 to 6.29 of the Code give guidance as to what is meant by “reasonable steps”.

320.3 Paragraph 6.28 identifies some of the factors which might be taken into account when deciding whether a step is reasonable. They include the size of the employer; the practicability of the proposed step; the cost of making the adjustment; the extent of the employer's resources; and whether the steps would be effective in preventing the substantive disadvantage.

[321]In Carrera v United First Partners Research, the Employment Appeal Tribunal held that a PCP did not require an element of compulsion; an expectation or assumption placed upon an employee may suffice. HHJ Eady gave the following guidance at paragraph 31-37: 321.1. The identification of the PCP was an important aspect of the Tribunal's task; the starting point for its determination of a claim of disability discrimination by way of a failure to make reasonable adjustments. 321.2. It is important to be clear as to how the PCP is to be described in any particular case. 321.3. The protective nature of the legislation meant a liberal rather than an overly technical approach should be adopted to the meaning of “provision criterion or practice”. 321.4. The Tribunal had taken an unduly narrow view of the Claimant's identification of the PCP, and that it should, instead, have adopted a real world view of what a requirement was in the context of the case.

[322]The Employment Tribunal considering a claim that an employer has discriminated against an employee by failing to comply with the duty to make reasonable adjustments must identify: 322.1. the relevant provision, criterion or practice made by the employer; and/or 322.2. the relevant physical features of the premises occupied by the employer and/or the auxiliary aid required; 322.3. the identity of non-disabled comparators (where appropriate); and 322.4. the nature and extent of the substantial disadvantage suffered by the Claimant.

[323]The above steps follow the guidance provided in Environment Agency v Rowan

[2008] IRLR 20

at paragraph 27.

[324]Substantial disadvantage is such disadvantage as is more than minor or trivial.

[325]In Archibald v Fife, the House of Lords held what steps are reasonable depends on the circumstances of the particular case, which the employment tribunal must establish (paragraph 43).

[326]In applying Archibald v Fife, in Chief Constable of South Yorkshire v Jelic

[2010] IRLR 744

, the EAT held that the test of reasonableness was an objective one, for Employment Tribunals to decide. The EAT also emphasized that each case turned on its own facts.

[327]This Tribunal reminded itself that even where the duty is engaged, not all adjustments will be reasonable even where they overcome the disadvantage.

[328]The Tribunal considered Griffiths v Secretary of State for Work and Pensions

[2016] IRLR 216

. The following is a fair summary of it for our purposes in this case: 328.1. The nature of the comparison exercise under section 20 required the tribunal to ask: does the PCP put the disabled person at a substantial disadvantage compared with a non-disabled person? The fact that they were treated equally and might both be subject to the same disadvantage when absent for the same period of time did not eliminate the disadvantage if the PCP bit harder on the disabled, or a category of them, than it did on the able-bodied. The ET and the EAT had erred in holding that the s.20 duty had not been engaged because the policy applied equally to everyone (see paragraphs 46-48, 58, 63 of judgment). 328.2. There was no reason artificially to narrow the concept of what constituted a "step" within the meaning of s.20(3). The only question was whether it was reasonable for it to be taken. Although the proposed steps would have been, if taken, capable in principle of ameliorating the disadvantage resulting from the operation of the policy, the steps required to avoid or alleviate such disadvantages were not likely to be steps which a reasonable employer could be expected to take. 328.3. It may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness.

[329]We note that Elias LJ drew attention to the judgment in Archibald: “…the comparator was an able bodied person who was not at risk of dismissal because, unlike Mrs Archibald, he or she was able to carry out the duties of the job. As Lord Rodger pointed out (paragraphs 42-43), the substantial disadvantage was that Mrs Archibald was at risk of dismissal, and the purpose of the reasonable adjustment was to prevent the terms of Mrs Archibald's contract from placing her at that substantial disadvantage. Allowing her to take a post, even possibly at a higher grade, without a competitive interview was capable of achieving that objective. In Archibald the disadvantage, namely risk of loss of employment, was very significant. But lesser prejudice will suffice. In the context of section 20 the word “substantial” is simply defined as “more than minor or trivial”: section 212(1).” (Griffiths at paragraph 21.)

[330]The Tribunal also considered the following passage in Griffiths (at paragraph 80): “The section 20 duty is normally relevant when looking into the future; it is designed to help prevent treatment which might give rise to a section 15 claim from arising. But that is not the purpose of the section 20 complaint here. It is really a staging post in challenging in order to invalidate the written warning – treatment which has already arisen. In my view there is a certain artificiality in arguing the case in that way. I respectfully agree with some observations of HH Judge Richardson in General Dynamics Information Technology Ltd v Carranza

[2015] ICR 169

para. 34 when he said that dismissal – and I would add any other disciplinary sanction – for poor attendance can be quite difficult to analyse in terms of the reasonable adjustments duty, and that:- “Parties and employment tribunals should consider carefully whether the duty to make reasonable adjustments is really in play or whether the case is best considered and analysed under the new, robust, section 15”.” Requirement of knowledge

[331]The requirement of actual or constructive knowledge in section 20 EA (or, rather, in the equivalent DDA 1995 provisions) was addressed in Gallop v Newport CC

[2014] IRLR 211

. The Court held, per Rimer LJ: “36 I come to the central question, namely whether the ET misdirected itself in law in arriving at its conclusion that Newport had neither actual nor constructive knowledge of Mr Gallop's disability. As to that, Ms Monaghan and Ms Grennan were agreed as to the law, namely that(i) before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person; and

(ii) that for that purpose the required knowledge, whether actual or constructive, is of the facts constituting the employee's disability as identified in section 1(1) of the DDA. Those facts can be regarded as having three elements to them, namely (a) a physical or mental impairment, which has (b) a substantial and long-term adverse effect on (c) his ability to carry out normal day-to-day duties; and whether those elements are satisfied in any case depends also on the clarification as to their sense provided by Schedule 1. Counsel were further agreed that, provided the employer has actual or constructive knowledge of the facts constituting the employee's disability, the employer does not also need to know that, as a matter of law, the consequence of such facts is that the employee is a ‘disabled person’ as defined in section 1(2). I agree with counsel that this is the correct legal position.”

[332]The legal principles emerging from Gallop and Donelian v Liberata UK Ltd

[2018] IRLR 535

as to the application of the knowledge provisions within the EA 2010 are as follows: 332.1. Provided that the employer had actual or constructive knowledge of the facts constituting the employee's disability, it did not need to know that, as a matter of law, the consequences of such facts were that the employee was a "disabled person" as defined in the Act. 332.2. The tribunal must ascertain whether, at the material times, the local authority had actual or constructive knowledge of the s.6/Sch.1 facts constituting the claimant’s disability. 332.3. The facts in Gallop illustrated the need for an employer, when seeking outside advice from clinicians, not simply to ask in general terms whether the employee was a disabled person within the meaning of the legislation but to pose specific practical questions directed to the particular circumstances of the putative disability. 332.4. Where the opinion given was that the employee was not disabled, the employer must not forget that it was he who had to make the factual judgement; it should not simply rubber stamp the opinion that they were not. An example of a case where the employer had not rubber stamped the OH opinion was Donelian. 332.5. The standard is one of reasonableness, not a counsel of perfection. Harassment

[333]Section 26 provides, where relevant: “(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;

[334]Paragraph 7.9 of the Code states that “related to” in section 26(1)(a) should be given “a broad meaning in that the conduct does not have to be because of the protected characteristic”.

[335]The Code continues that “related to” includes a situation where the conduct is related to the worker’s own protected characteristic, or where there is any connection with a protected characteristic.

[336]In respect of the proper application of section 26(1)(b) and (4), which deal with the proscribed consequences of the unwanted conduct, we considered Dhaliwal v Richmond Pharmacology

[2009] IRLR 336

. Although that was a case decided before the Equality Act 2010, the provisions in issue were at section 3A Race Relations Act 1976, and were similar to those in section 26. We find it helpful to set out the following extracts of the judgment of Underhill J(P): “14 Secondly, it is important to note the formal breakdown of “element (2)” into two alternative bases of liability – “purpose” and “effect”. That means that a respondent may be held liable on the basis that the effect of his conduct has been to produce the proscribed consequences even if that was not his purpose; and, conversely, that he may be liable if he acted for the purposes of producing the proscribed consequences but did not in fact do so (or in any event has not been shown to have done so). It might be thought that successful claims of the latter kind will be rare, since in a case where the respondent has intended to bring about the proscribed consequences, and his conduct has had a sufficient impact on the claimant for her to bring proceedings, it would be prima facie surprising if the tribunal were not to find that those consequences had occurred. For that reason we suspect that in most cases the primary focus will be on the effect of the unwanted conduct rather than on the respondent's purpose (though that does not necessarily exclude consideration of the respondent's mental processes because of “element (3)” as discussed below). 15 Thirdly, although the proviso in subsection (2) is rather clumsily expressed, its broad thrust seems to us to be clear. A respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. … The proscribed consequences are, of their nature, concerned with the feelings of the putative victim: that is, the victim must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created. That can, if you like, be described as introducing a “subjective” element; but overall the criterion is objective because what the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. Thus if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt. See also our observations at para 22 below. … 22 On that basis we cannot accept Mr Majumdar's submission that Dr Lorch's remark could not reasonably have been perceived as a violation of the claimant's dignity. We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase...”

[337]Paragraph 15 above is authority for the proposition that the criterion in section 26(4) EA were overall objective criterion. The Tribunal found that, applying Dhaliwal and the reasoning of Underhill J, this was a correct interpretation of the law.

[338]The Tribunal considered Paragraph 22 of Dhaliwal, and Paragraph 13 of Grant v HM Land Registry

[2011] IRLR 751

[339]We directed ourselves that not every unwanted comment or act related to a protected characteristic may violate a person’s dignity or create an offensive atmosphere. We considered that, at least as a matter of practice rather than law, more than in other areas of discrimination law, context is everything in cases where harassment is alleged. Put shortly, the context in which words are used or acts occur is relevant to their effect. Burden of proof in discrimination cases

[340]We reminded ourselves of the reversal of the burden of proof provisions within section 136(2) EA 2010, as explained in Igen v Wong

[2005] EWCA Civ. 142

and Madarassy v Nomura

[2007] ICR 867

[341]In respect of the application of these provisions in complaints of breach of the duty to make reasonable adjustments, we considered the guidance in Project Management Institute v Latif

[2007] IRLR 579

(Elias P, as he then was, presiding) at paras 44, 53-54.

[342]In short, if the burden shifts, the employer must show the disadvantage would not have been eliminated or reduced by the proposed adjustment and/or that the adjustment was not a reasonable one to make. Jurisdiction: Time Limits

[343]Section 123 EA 2010 provides so far as relevant that: “(1) … proceedings on a complaint … 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 a person does an act inconsistent with doing it, or (b) if a person does no inconsistent act, on the expiry of the period in which the person might reasonably have been expected to do it."

[344]A distinction is to be drawn between a single act (which may have continuing consequences) and a continuing act arising from a policy, rule, scheme or practice operated over time: Barclays Bank v Kapur

[1991] ICR 208

[345]Tribunals should not take too literal an approach to the question of what amounts to a continuing act by focusing on whether the concepts of policy, rule, scheme or practice fit the facts of the particular case. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of "an act extending over a period". Instead, the focus should be on the substance of the complaints that the employer was responsible for an ongoing situation or a continuing state of affairs in which female officers were treated less favourably: Hendricks v Commissioner of Police for Metropolis

(2003) ICR 530

at paragraph 54.

[346]One of the complaints in this case is of the failure to comply with the duty to make reasonable adjustments imposed by section 20 EA 2010. To determine when the failure is to be treated as occurring, section 123(4) EA 2010 must be applied. The proper application of these provisions has been recently considered in Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ. 640

at paragraphs 11-15: 346.1. Applying subsection 123(4)(b), the failure to comply with the duty is to be treated as occurring on the expiry of the period in which the employer might reasonably have been expected to make the adjustments. 346.2. Ascertaining when the respondent might reasonably have been expected to comply with its duty is not the same as ascertaining when the failure to comply with the duty began. 346.3. The period in which the employer might reasonably have been expected to comply with its duty ought in principle be assessed from the claimant's point of view, having regard to the facts known or which ought reasonably to have been known by the claimant at the relevant time.

[347]The principles to be applied in the application of section 123 EA 2010 have recently been summarised in Abertawe Bro Morgannwg University Local Health Board v Morgan, to which we have directed ourselves. The ET’s discretion to extend time under the “just and equitable” test is the widest possible discretion: Morgan at paragraph 17.

[348]There is no justification for reading into the statutory language any requirement that the Tribunal must be satisfied that there was a good reason for the delay, nor that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal must have regard. If a claimant gives no direct evidence about why she did not bring her claims sooner a Tribunal is not obliged to infer that there was no acceptable reason for the delay, or even that if there was no acceptable reason that would inevitably mean that time should not be extended: Abertawe Bro Morgannwg University Local Health Board v Morgan at paragraph 25. 348.1. Factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and

(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh). See Abertawe Bro Morgannwg University Local Health Board v Morgan at paragraph 19. Constructive Dismissal

[349]Section 95(1)(c) ERA provides that there is a dismissal when the employee terminates the contract with or without notice, in circumstances such that he or she is entitled to terminate it without notice by reason of the employer’s conduct.

[350]The burden was on the employee to prove the following:350.1 here was a fundamental breach of contract on the part of the employer;

350.2 That the employer’s breach caused the employee to resign;

350.3 The employee did not affirm the contract and lose the right to resign and claim constructive dismissal.

[351]The propositions of law which can be derived from the authorities concerning constructive unfair dismissal are as follows:351.1 The test for constructive dismissal is whether the employer’s actions or conduct amounted to a repudiatory breach of the contract of employment: see Western Excavation Limited v Sharp.

351.2 It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee: see Malik v Bank of Credit and Commerce International

[1998] AC20

34h-35d and 45c-46e.

351.3 Any breach of the implied term of trust and confidence will amount to a repudiation of the contract: see, for example, Browne-Wilkinson J in Woods v Wm Car services (Peterborough) Limited

[1981] ICR 666

at 672a; Morrow v Safeway Stores

[2002] IRLR 9

. The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship.

351.4 The test of whether there has been a breach of the implied term of trust and confidence is objective as Lord Nicholls said in Malik at page 35c. The conduct relied as constituting the breach must impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer.

351.5 A breach occurs when the proscribed conduct takes place: see Malik.

351.6 Reasonableness is one of the tools in the employment tribunal’s factual analysis kit for deciding whether there has been a fundamental breach; but it is not a legal requirement: see Bournemouth University v Buckland

[2010] ICR 908

at para 28.

351.7 In terms of causation, the Claimant must show that she resigned in response to this breach, not for some other reason. But the breach need only be an effective cause, not the sole or primary cause, of the resignation.

[352]In Kaur v Leeds Teaching Hospital NHS Trust [2018] IRLR, the Court of Appeal approved the guidance given in Waltham Forest LBC v Omilaju (at paragraph 15-16). Reading those authorities, the following comprehensive guidance is given on the “last straw” doctrine:352.1 The repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence: Lewis v Motorworld Garages Ltd

[1986] ICR 157

, per Neill LJ (p 167C).

352.2 In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? (Glidewell LJ at p 169F)

352.3 Although the final straw may be relatively insignificant, it must not be utterly trivial: the principle that the law is not concerned with very small things (more elegantly expressed in the maxim ' de minimis non curat lex') is of general application.

352.4 The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.

352.5 The final straw need not be characterised as 'unreasonable' or 'blameworthy' conduct, even if it usually will be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy.

352.6 The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality referred to.

352.7 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.

352.8 If 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, 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.

352.9 The issue of affirmation may arise in the context of a cumulative breach because in many such cases the employer's conduct will have crossed the Malik threshold at some earlier point than that at which the employee finally resigns; and, on ordinary principles, if he or she does not resign promptly at that point but "soldiers on" they will be held to have affirmed the contract. However, if the conduct in question is continued by a further act or acts, in response to which the employee does resign, he or she can still rely on the totality of the conduct in order to establish a breach of the Malik term.

352.10 Even when correctly used in the context of a cumulative breach, there are two theoretically distinct legal effects to which the "last straw" label can be applied. The first is where the legal significance of the final act in the series is that the employer's conduct had not previously crossed the Malik threshold: in such a case the breaking of the camel's back consists in the repudiation of the contract. In the second situation, the employer's conduct has already crossed that threshold at an earlier stage, but the employee has soldiered on until the later act which triggers his resignation: in this case, by contrast, the breaking of the camel's back consists in the employee's decision to accept, the legal significance of the last straw being that it revives his or her right to do so.

352.11 The affirmation point discussed in Omilaju will not arise in every cumulative breach case. “There will in such a case always, by definition, be a final act which causes the employee to resign, but it will not necessarily be trivial: it may be a whole extra bale of straw. Indeed in some cases it may be heavy enough to break the camel's back by itself (i.e. to constitute a repudiation in its own right), in which case the fact that there were previous breaches may be irrelevant, even though the claimant seeks to rely on them just in case (or for their prejudicial effect).” (per Underhill LJ).

352.12 We note that a breach of trust and confidence has two limbs:352.12.1 the employer must have conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee and

352.12.2 that there be no reasonable or proper cause for the conduct. Submissions

[353]The Respondent wished to make written submissions; the Claimant indicated that she would have written submissions as well.

[354]The Tribunal received these on the morning of 28th September. The Claimant had not completed her reading of Mr. Heard’s submissions. To ensure fairness, we put the matter back to 11.30am to give the Claimant an opportunity to read the Respondent’s submissions, given that she is a lay person, with a mental impairment.

[355]At the Claimant’s request, the matter was put back again to 12.00 noon for her to complete her reading.

Conclusions

[356]We have applied our findings of fact and the law set out above to the issues. The fact that we do not refer to each and every piece of evidence, or submission, is not evidence that they were not taken into account. We considered all that we read and heard. It is worth noting that in this case the bundle extended to over 1850 pages, there were over 200 pages of witness statements, and the parties’ written submissions ran to over 50 pages. Jurisdiction: Issues 17-18

[357]The following complaints of harassment were, on their face, presented within three months of the act or omission complained of: 6j, k, l, m, and n.

[358]The Claimant submitted that she had suffered one thing after another, and that these could not be simple mistakes, but were part of a continuing state of affairs. This is demonstrated in parts of her evidence, where she perceived that events had a motivation or an intention behind them which was hostile or against her interests. For example, in respect of the Subject Access Request, the Claimant refers to the Respondent “ignoring” her; and in respect of the grievance outcome, that the outcome letter was incorrect throughout and that someone partial was controlling the documents.

[359]Furthermore, as a further example, the Claimant considered the meeting of 12 January 2017 to be deliberately weighted to be formal, and considered it an “ambush”. The Claimant alleged that she had not been listened to, and had been treated in a demeaning way.

[360]The Claimant’s resignation letter states, after listing many of the matters forming part of her complaints in these proceedings, the words quoted in paragraph 278 above. This, again, is evidence that the Claimant is alleging a continuing state of affairs.

[361]Applying Hendricks, the Tribunal decided that the Claimant’s case was made on the basis that the different alleged acts of discrimination were linked to one another, and were evidence of an allegation of a continuing discriminatory state of affairs.

[362]If the Tribunal are wrong about this, we considered that it would be just and equitable to extend time to include those matters which are otherwise out of time. This is because:362.1 The Respondent did not identify any prejudice suffered by complaints being out of time and it had no difficulty adducing evidence to meet those complaints.

362.2 Moreover, many of these complaints formed part of the constructive dismissal complaint, which required the Respondent to address the same or related incidents in the context of defending the unfair dismissal complaint.

362.3 The Claimant’s mental impairment had strong effect on her ability to process information, to weigh information, and to order her thoughts, which we witnessed during these proceedings. Issues 9 -10: Definition of disability

[363]From our findings of fact, we had no hesitation in concluding that the Claimant was a disabled person, within section 6 and Sch 1 EA 2010, at all material times. It is regrettable that the Respondent refused to concede this issue, particularly after her oral evidence on this issue went unchallenged. This wasted time and caused at least some extra stress for the Claimant. Also, it added to the impression that the Respondent had little understanding of the definition of disabled person within the Equality Act 2010.

[364]We reached the following conclusions on the material parts of the definition. We have used the approach proposed in J v DLA Piper in the absence of a medical report setting out when the impairment first arose. Adverse effect

[365]We accepted the Claimant’s evidence that the adverse effect began at some point prior to November 2014. This is most notably demonstrated by her evidence that her sleep was interrupted and reduced by the effect of her impairment. Substantial

[366]We find that it was because the adverse effect of this impairment became substantial that the Claimant stopped work in November 2014 and thereafter consulted her GP. We accepted her unchallenged evidence about the progression of her symptoms.

[367]Doing the best we can, we infer that the substantial effect began on or about 1 November 2014, which is close to the date of the incident involving Ms. Fogg, referred to at issue 2c. This is consistent with the oral evidence of the Claimant and the medical records, because it appears that the GP was first consulted on 14 November 2014. Long-term

[368]The substantial adverse effect of the impairment was long-term.

[369]We find that it was likely to last 12 months as at the date of the first allegation of disability discrimination in May 2015, in the sense that it could well have lasted 12 months at that point, given that the symptoms had been present for more than 6 months, even if the substantial adverse effect only commenced at or about the beginning of November 2014.

[370]If we are wrong about this, having made the above findings of fact, we are satisfied that the substantial adverse effect was likely to recur, in the sense that it could well recur, after it arose in November 2014. We reached this conclusion because:370.1 The Claimant gave evidence that she suffered from stress-related symptoms prior to November 2014, notably affecting her sleep and her ability to process or control her thoughts.

370.2 By the date of the first alleged acts of discrimination (May 2015 – see issue 6b), the length of the episode of stress-related anxiety and depression pointed to this being more than a mere reaction to work events. It was likely (on a balance of probability) to have been some form of anxiety and/or depressive disorder from early November 2014.

370.3 The GP report, limited though it may be, identifies that stressful life events could affect the length of the substantial adverse effect.

[371]If we are found to be wrong in law about this (despite the above conclusions being based on findings of fact), the Claimant’s symptoms of anxiety and depression did, as a matter of fact, recur in June 2016. This, coupled with the above findings, demonstrate that, on any view of the law, at the very latest, the Claimant was a disabled person from June 2016 onwards. Impairment

[372]This is a case where there was no medical report addressing whether the Claimant had a mental impairment prior to 2017, nor when such an impairment started. We have applied the guidance in J v DLA Piper by identifying when the adverse effect began, when the adverse effect first became substantial, how long it lasted, whether it could well have recurred, and when in fact it did recur.

[373]Moreover, it was not disputed that the Claimant had a mental impairment, and nor was her evidence of symptoms and their duration challenged.

[374]We inferred from the above that the Claimant had a mental impairment at all material times in the form of an anxiety and/or depressive disorder from, at the latest, October 2014, when the OFSTED inspection was due. Issue 12: Knowledge

[375]This issue is relevant to the complaints that the Respondent failed to make reasonable adjustments. The approach of the Respondent and its submissions appeared to proceed on the basis that it was relevant to the complaints of disability related harassment, which is incorrect as a matter of law.

[376]We reminded ourselves that the relevant statutory test includes both actual or constructive knowledge:376.1 that the employee was a disabled person; and

376.2 for that purpose, the required knowledge is of the facts constituting the employee's disability as identified in section 6 EA 2010 (rather than knowledge of the relevant law).

[377]In this case, the Respondent’s Human Resource advisers merely accepted the advice provided by Occupational Health advisers, treating that as expert medical evidence on the issue - even though it was unclear what qualifications or medical expertise the OH advisers had.

[378]Moreover, the Respondent treated the question of whether a person was a person with a disability as a question of medical opinion. As a matter of law, this approach was mistaken. This question is basically a factual question; sub-parts of this question may be answered with the assistance of medical opinion evidence. But medical evidence may not be necessary and it will never, in itself, be sufficient.

[379]Moreover, as this case demonstrates, the accuracy of any report from a doctor or occupational health practitioner will depend on the instructions provided to that adviser. An employer, when seeking medical advice, must pose specific practical questions directed to the particular circumstances of the putative disability.

[380]More significantly, the Respondent should have made the factual judgment itself, by properly directing itself to consider whether the Claimant was a disabled person. In this case, the limitations of the OH advice were obvious. The OH advisers made clear that they were providing an occupational health opinion, not a legal opinion. These warnings were made for a good reason.

[381]None of the Respondent’s Human Resources advisers ever considered whether the Claimant might be a disabled person prior to the OH advice of 28 March 2017; there is no evidence that anyone consulted the statutory definition nor the Guidance, nor that they sought advice about this. This is likely to be why the Respondent never asked factual, practical, questions of the Claimant to establish whether she was likely to be a disabled person protected by the EA 2010 and why it did not obtain the GP records of the Claimant.

[382]We are critical of the Respondent’s approach to this issue, rather than being critical of any individual. This was a systemic failing, which concerned the Tribunal, particularly because the Respondent is a body carrying out a public function and because the evidence of Ms. Calahane was that stress-related illness was “prevalent in schools”. The Respondent never considered the statutory definition within section 6(1) EA 2010, nor the factual issues that this raised, nor did it follow the advice of the OH advisers, which was that whether the Claimant was a disabled person was a “legal matter” (even though this was wrong, it might well have prompted an employer to take legal advice).

[383]We concluded that Ms. Stalham, and the Respondent, had at least constructive knowledge of the facts that meant that the Claimant was a disabled person from about 25 June 2015, evidenced by the letter to Ms. Stalham on that date, especially the content at p.539.

[384]If we are wrong about this, we conclude that Ms. Stalham had constructive knowledge of the requisite facts by about 19 October 2015. This is because:384.1 By 15 September 2015, the OH advice made clear that the Claimant was still unfit for work and that her current symptoms were likely to continue until workplace issues were resolved. The Claimant had already been absent sick for over 10 months at this point.

384.2 At the informal absence review meeting on 19 October 2015, attended by Ms. Stalham and a HR adviser, the Claimant’s “anxiety barrier” is discussed. At this meeting, the Claimant confirmed that she was still on medication, that she had had counselling, and that she would like more counselling. [654] At this point, the Claimant had been absent sick for almost 12 months and clearly would remain on medication for some weeks.

[385]We have explained above that the other witnesses named in the list of issues had actual or constructive knowledge at the material times. Issues 13 – 16: Breach of the duty to make reasonable adjustments

[386]To assist the parties, we have analysed these complaints by considering in turn each PCP referred to in issue 13 and the disadvantage alleged to be caused, as set out in the Further Particulars at p.52. 13a: Only allowing a trade union representative or work colleague to attend meetings

[387]The Respondent did not apply a PCP of “only allowing a trade union representative or work colleague to attend meetings”.

[388]The Tribunal found that employees had a right in respect of formal grievance hearings, which is that a trade union representative or official, or a work colleague, could accompany the employee to a formal grievance meeting: see 5.4.3 of the Grievance Procedure [p.172i].

[389]The Tribunal found that employees had a right to be accompanied by a trade union representative or a work colleague to a formal absence review hearing: see 5.2.1 of the Sickness Absence Management Procedure [184].

[390]The PCPs represented by these rights did not put the Claimant at a more than minor disadvantage compared to another teacher in her position. These were statements of the minimum legal rights of the Claimant; they were not limitations on who else might accompany her.

[391]In any event, we concluded that the Respondent did not breach the duty on any of the dates alleged at p.52 for the following reasons. Absence review meeting 12 January 2017

[392]As for the absence review meeting on 12 January 2017, we find that this was an informal meeting.

[393]There could be no breach of the duty to make reasonable adjustments in the circumstances. The Respondent offered to make adjustments in the invitation letter of 16 December 2016 [900] and in Ms. Calahane’s email on 10 January, including the following offer [908]: “Let me know if there are specific arrangements that you require.”

[394]The Claimant did not request that she be accompanied by a friend or family member.

[395]The Claimant attended on 12 January. At the meeting, she made no request to be accompanied by a friend or family member.

[396]In those circumstances, where the Respondent has offered to make arrangements to assist the Claimant to attend, and the Claimant has not requested any specific adjustment, there could be no breach of the duty even if the alleged PCP did exist.

[397]As explained above, the Claimant had attended an earlier meeting with a family member, despite the invitation letter using similar wording as used in the invitation letters ahead of the sickness absence review meeting in January 2017: see the meeting on 28 September 2015 [600]. The terms of the invitation letters were no barrier to the Claimant being accompanied by a family member or friend. Invitations to grievance hearing, 8 and 14 February, and scheduled grievance hearing 17 February 2017

[398]The letter of 8 February [1003] is not evidence of the PCP alleged. It is not a refusal of any sort as to who could accompany the Claimant.

[399]In the email of 14 February [1017-1019], Ms. Wiggs stated that the Grievance Policy, 5.4.3, stated that the employee has the right to be accompanied at the meeting by the category of persons specified. Ms. Wiggs informed the Claimant that she must choose from this criteria if she wanted to be represented.

[400]We find that, despite what is stated by Ms. Wiggs, this was not the meaning of the Grievance Policy (which is setting out minimum rights). This is supported by the fact that the Claimant attended the grievance hearing in September 2015 with her cousin, without complaint.

[401]Moreover, this was not in fact a PCP applied in these circumstances. This is because the scheduled grievance hearing did not go ahead and because Ms. Wiggs, having received advice from Ms. Calahane, changed her decision on the question of who could accompany the Claimant.

[402]In any event, the invitation letter and email placed the Claimant at no disadvantage compared to another teacher in her position. These were only items of correspondence.

[403]The meeting scheduled for 17 February 2017 did not go ahead. Therefore, even if such a PCP did exist, the Claimant was not in fact placed at any substantial disadvantage.

[404]In any event, if we are wrong about the above, the Respondent made a reasonable adjustment to the PCP alleged before the grievance hearing took place by allowing the Claimant to be accompanied by a friend or family member (see email from Ms. Calahane 21 February p.1048), as explained in our the findings of fact. 13b: Not providing grievance documentation prior to a meeting

[405]We find that the Respondent applied a PCP of not providing the grievance evidence documentation to an employee prior to a grievance hearing.

[406]However, there was no breach of the duty to make reasonable adjustments on the dates alleged. In respect of the specific dates pleaded at the Further Particulars, p.52:406.1 Despite the refusal to provide such documentation by Ms. Wiggs on 14 February 2017, the Claimant was not placed at a disadvantage compared to a comparator, because the scheduled meeting on 17 February did not proceed.

406.2 On 1 March 2017, the Claimant was provided with a bundle of documents relevant to the grievance issues which had been generated by Ms. Wiggs’ investigation. This demonstrates that a reasonable adjustment to the PCP was made. It was reasonable for the Respondent to provide documents which Ms. Wiggs believed were directly relevant to the grievance. A reasonable adjustment did not require the Respondent to provide every document to which she was entitled under her SAR; Ms. Wiggs had never seen those documents forming part of the Claimant’s email request for specific documents made on 28 March 2017.

406.3 The grievance meeting scheduled for 7 March 2017 did not go ahead. The Claimant was not placed at any disadvantage by the PCP, which had, in any event, already been adjusted in a reasonable way.

406.4 The email from Ms. Wiggs of 29 March 2017 [1201] is not evidence of a breach of the duty to make reasonable adjustments. On the contrary, it explains that Ms. Wiggs is committed to making reasonable adjustments. Also, it makes the distinction between the evidence within the scope of the grievance investigation and the evidence requested by the SAR.

406.5 The Claimant alleges that her emails of 30 and 31 March were ignored. This is not an allegation of breach of the duty to make reasonable adjustments. In any event, we found as a fact that her emails were not ignored by Ms. Wiggs. We accepted Ms. Wiggs’ evidence that the additional documents requested were not necessary for the purpose of the grievance meeting, and that they would not have been readily available. In other words, the further adjustment sought by the Claimant (of further disclosure), was not a reasonable one.

406.6 The fact that the grievance hearing took place on 31 March 2017 is not evidence of a breach of the duty to make reasonable adjustments. The Respondent had complied with this duty already, by the disclosure provided on 1 March 2017. Issue 13c: To provide a minimum of 5 working days’ notice of formal meetings; or 3 workings days for sickness review meetings

[407]We find that there was a PCP requiring a minimum of 5 working days notice of formal sickness absence review meetings: see paragraph 5.2.1 of the Procedure [184]. This is not relevant to the alleged breaches in this case, however, which are alleged to take place on 9 and 11 May 2017, ahead of an informal sickness absence review meeting scheduled for 12 May 2017.

[408]We find that there was no PCP that employees were given 3 working days’ notice of an informal sickness absence review meeting. The “informal procedure” part of the Sickness Absence Management Procedure does not refer to a requirement to give 3 days’ notice [183].

[409]If we are wrong about this, we accepted that there was no real evidence that the Claimant suffered more than minor disadvantage because of her mental impairment as a result of the PCP alleged under issue 13c.

[410]In any event, the dates relied upon are 9 May and 11 May 2017: see Further Particulars, p.53. The PCPs relied upon could not, as a matter of fact, have put the Claimant at any disadvantage because the meeting on 12 May 2017 did not go ahead.

[411]If these alleged PCPs within the Sickness Absence Management Procedure placed the Claimant at any disadvantage on either 9, 11 or 12 May, such disadvantage was minor. The Claimant would not be disadvantaged by holding the meeting on 12 May expeditiously, because it was an informal meeting and Ms. Stalham wished to offer the Claimant a transfer to another school (which was something that the Claimant had previously requested).

[412]If this allegation concerns the invitation dated 11 May 2017 to the second grievance appeal hearing on 16 May 2017, we note that, within the Grievance Procedure, there is a PCP that 5 working days’ notice of a grievance appeal hearing should be provided: see p.172j. We do not consider that this PCP placed the Claimant at any disadvantage in this case, because the Claimant had already been given notice of an appeal hearing on 9 May 2017, by letter of 2 May 2017; but the hearing was postponed.

[413]In any event, the Claimant made no request for more time to prepare for the appeal hearing on 16 May 2017. The Claimant made no contact at all with the appeal panel in response to its invitation of 11 May. In those circumstances, there could be no breach of the duty to make reasonable adjustments. 13d: Only holding pay reviews when someone is fit for work

[414]The Tribunal did not find that there was the alleged PCP in existence: see paragraphs 133-136 above.

[415]The context of this complaint is that the Claimant’s position from the meeting of 12 January 2017, after she had commenced a period of sickness absence in November 2016, was that she could not return to work until her re-grading pay issue was resolved. The Claimant had, however, already been informed by Ms. Stalham what evidence she needed to produce in order to go through the threshold to UPS1. Throughout the period following her return to work in December 2015, the Claimant had failed to produce this evidence.

[416]The Tribunal considered this complaint appeared to be, in reality, a complaint under section 15 EA 2010, which was not pleaded nor argued. Issue 13(e): To provide not less than 10% weekly teaching timetable as non-contact hours for teachers

[417]We concluded that there was no breach of the duty to make reasonable adjustments in this regard whether in July or November 2016.

[418]The Tribunal found that the PCP referred to by the Claimant was that each teacher had Planning and Preparation time amounting to 10% of their weekly timetable, during which they were not timetabled to teach.

[419]The Tribunal accepted that, as a result of the Claimant’s stress-related impairment, she was struggling to keep on top of her marking, by June 2016.

[420]The Tribunal concluded, however, that there was no evidence that the application of the PPA time PCP placed the Claimant at any disadvantage compared to a comparator teacher. If anything, this PCP was likely to assist the Claimant to manage her stress-related symptoms.

[421]Moreover, as the Claimant admitted, the Respondent made adjustments to allow her more PPA time than the 10% standard. The evidence of the Claimant (from paragraph 191 of her witness statement) and Ms. Stalham was that the Claimant was given more PPA time than other teachers. This included over June 2016. Despite this, the Claimant describes this as the most stressful month since she returned to the School (paragraph 192 witness statement).

[422]We concluded that any further adjustment to the PPA would not have been reasonable. PPA time was for planning and preparation, not for marking. In any event, any such adjustment would have had no effect on the Claimant’s anxiety levels, given her evidence.

[423]The PCP which placed the Claimant at a substantial disadvantage was the requirement for marking of all work to be done daily. We can understand that this was more difficult for her to comply with because her symptoms made it more difficult for her to process information than another teacher in her position.

[424]Neither at the 17 November 2016 review meeting with Ms. Stalham, nor at any time prior to that, did the Claimant ask for any adjustment to the marking policy. She did not ask for extra PPA time for marking prior to 17 November 2016.

[425]At the 17 November 2016 meeting with Ms. Stalham, the Claimant requested the use of some PPA time for marking. We concluded that this would not be a reasonable adjustment. PPA time was needed as planning and preparation time. Planning was completed by year group teachers together, to make it as high quality as it could be, and for good practice to be shared (as explained by Ms. Stalham).

[426]Further, from the evidence that we heard, there was no adjustment to the marking policy which could have been made in November 2016 which could have overcome the disadvantage suffered by the Claimant, because of the scale of the symptoms of her anxiety and her depressive condition.

[427]Moreover, the marking policy was there so that marking had an impact on the children’s learning. Any adjustment which was more than allowing a few more days to mark work could impact on the education of children.

[428]In any event, Ms. Stalham gave the Claimant two weeks to bring her books up to date and offered support to the Claimant, which we find to be reasonable adjustments in the circumstances. Given the nature of school work, the reasonable policy that marking should have an impact on the education of the children, the size and teaching resources of this primary school, and the recent history of OFSTED intervention, we are satisfied that all reasonable adjustments were made in this respect. Issue 6: Harassment

[429]We have set out in our findings of fact our conclusions on the complaints within issue 6a-6n. We have found that the Claimant was mistaken or incorrect in her factual interpretation of certain events. For example, in respect of issue 6d, a permanent replacement for the Claimant was not recruited until after her resignation.

[430]In respect of other events, such as the complaint at issue 6b, we have found that the conduct was not unwanted.

[431]Irrespective of whether the conduct set out at issue 6a-n occurred as alleged and whether or not it was unwanted, we have concluded that it did not have as its purpose the violation of the Claimant’s dignity nor the creation of an environment that was hostile, offensive or humiliating.

[432]Further, our findings of fact demonstrate that where conduct alleged was found to have in fact occurred, and where it had the effect of violating her dignity and creating a hostile and offensive environment, it was not reasonable for the conduct to have this effect in the circumstances. There are many examples of this set out in our findings of fact.

[433]As we have explained, the Claimant was over-sensitive to perceived or actual criticism from managers, or management direction which she did not agree with. The Claimant overreacted to certain events. This was probably a result of her stressrelated symptoms, such as her impaired ability to process information and her tendency to ruminate over and over on events.

[434]For the avoidance of doubt, we found that none of the allegations of harassment were made out.

[435]We have made positive findings of fact upholding the Respondent’s case on each complaint within issue 6. Accordingly, the burden of proof provisions within section 136 EA 2010 have not been engaged. Issues 1-5: Constructive Dismissal

[436]We concluded that the Claimant did resign in response to the events on 11 and 12 May 2017. This is evidenced by her resignation letter, in which she refers to being unable to cope with “another ambush like the meeting in January”. (We make clear that we did not find that the Claimant was “ambushed” at the informal meeting in January 2017, nor that Ms. Calahane intended any sort of “ambush” on 12 May 2017.)

[437]We found that the series of acts or omissions relied upon at issues 2a to 2bb did not, whether taken cumulatively or examined individually, amount to a breach of the implied term of trust and confidence.

[438]On the findings of fact set out above, the Respondent and its predecessor did not conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence, even though the Claimant believed this to have occurred.

[439]We understand that assessing the reasonableness of the actions of the employer is a tool which may help a Tribunal determine whether there has been a breach of the implied term relied upon, but not a legal test in itself. Using this tool, we found that in most of the instances alleged, the Respondent’s senior management and HR advisers had acted reasonably and with proper cause, on the evidence before them.

[440]On the very limited occasions where, objectively viewed, the Respondent may have acted unreasonably, we found that this was done by mistake or oversight; it was not done deliberately. For example, in respect of issue 2t, Ms. Wiggs had not realised that the OH advice was to the effect that the Claimant could be accompanied by a friend or family member. This incident is a good example of why there was no breach of the implied term of trust and confidence; because as soon as the relevant HR adviser, Ms. Calahane, returned from holiday, she informed Ms. Wiggs that adjustment should be made to the usual procedure; and the adjustments proposed were made by Ms. Wiggs.

[441]As we have explained above, the Claimant became over-sensitive to the actions of managers and HR advisers, so that she perceived acts to be deliberate, and motives to be negative, where there was no real basis for this perception. Issue 3

[442]We reminded ourselves that a relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the “last straw” in a series of incidents. However, the particular incidents on 12 May 2017, which caused the Claimant to resign, were insufficient to justify her taking that action, even if there had been a series of other incidents which were capable of forming part of a repudiatory breach (which there had not been in this case).

[443]In respect of the acts on 12 May 2017 (set out at issues 2bb and 3), Ms. Calahane did not act unreasonably, nor unfairly, nor with any malice. It is apparent that she intended to leave a voice message when she rang; and that she only decided to call in the absence of confirmation from the Claimant as to whether or not she would attend the meeting arranged for that day. We concluded that Ms. Calahane had acted in a considerate and appropriate way on 12 May 2017. Her acts were done innocently, and were so trivial that they could not amount to a “last straw”.

[444]Given the above conclusions, the issue of affirmation does not require determination, because we have found that there was no breach of contract. Issues 20 and 21: Unlawful deduction of 1% pay rise

[445]The complaint of unlawful deduction of wages at issue 20 was brought in time. The Claim was presented within three months of the last in the series of deductions, because the 1% shortfall featured in all payments of wages up to the date of the resignation.

[446]As explained in our findings of fact at paragraphs 282-292, there was a series of unlawful deductions from the Claimant’s wages, paid between 1 September 2016 and 15 May 2017. These occurred because the Respondent failed to appreciate the effect of the TUPE Regulations 2006. As the submissions demonstrated, the Respondent appeared not to understand the scope and effect of these Regulations.

[447]The amount of each deduction was the difference between the salary that she was paid and the salary that she should have been paid, had the Respondent used the annual salary of £33,160 as its starting point.

[448]The parties have not agreed a figure for this sum to date, but we expect that they will now be able to do so. The sum involved is relatively small (the Schedule of Loss estimates it to be less than £300).

Summary

[449]The complaint of an unlawful deduction from wages set out in issues 20 - 21 is upheld.

[450]The complaints of unfair dismissal, disability discrimination in the form of failure to make reasonable adjustments, and disability related harassment, are dismissed.

[451]The Tribunal will list the matter for a Remedy hearing after 1 December 2018, to determine the compensation due under issues 20-21, unless it receives confirmation from the parties that agreement on this sum has been reached.

Conclusions

[1]The Respondent breached the duty to make reasonable adjustments imposed by sections 20 – 21 Equality Act 2010 by not providing to the Claimant all the documentary evidence relevant to her grievance, which was before the hearing officer, prior to the grievance hearing on 31 March

[2]The complaints of constructive unfair dismissal and harassment related to disability are dismissed.

Conclusions

[1]This Claim was originally heard over 9 days in September and October 2018. By Judgment and Reasons promulgated on 14 November 2018 (which we shall refer to as “the Reasons”), each complaint failed and the Claim was dismissed.

[2]After a successful appeal, on 12 March 2020, the Employment Appeal Tribunal remitted the case to this Tribunal in order for specific matters to be heard and determined. The Issues

[3]The appeal was allowed in respect of the complaint of constructive unfair dismissal and specific complaints of harassment, and breach of the duty imposed by sections 20-21 Equality Act 2010 (“EQA”). The grounds which succeeded are fairly narrow in their factual scope, as set out in the EAT’s conclusions. This meant that most of the findings of fact set out in the Reasons remained.

[4]After the EAT hearing, at the direction of the EAT, Counsel for the parties agreed a list of matters which were to be remitted to the Tribunal for determination. These are set out in the undated document, “Agreed issues to remit to the Employment Tribunal”, sent to the EAT on 16 December 2019. However, these were not in the form of a list of issues. The document began: “The parties are in agreement that the following paragraphs of the ET judgment should be remitted for determination arising from the judgment of the EAT…” The document consisted of a series of paragraph numbers under the heading “Factual Paragraphs”, against some of which explanation for the inclusion was provided. The Tribunal sought to address these paragraphs in reaching our findings and conclusions at this further merits hearing.

[5]At a Preliminary Hearing on 3 June 2020, a list of the issues arising from the EAT Judgment and the “Agreed issues to remit to the Employment Tribunal” document, was largely agreed, subject to one point. Employment Judge Ross determined that dispute (after allowing the parties time to put in written arguments) for reasons given at the time. The list of issues was completed; it is at Appendix A to this Judgment. The Hearing & Reasonable Adjustments

[6]In the Reasons (paragraphs 22-38), the Tribunal set out the Claimant’s mental impairment and its symptoms, and how they had an adverse effect on her daily activities. We decided that the Claimant was a disabled person.

[7]At the Preliminary Hearing, the case was re-listed in a pattern designed to accommodate the Claimant’s requests. Also, it was directed that the final hearing would be listed as a face-to-face hearing, to ensure the Claimant would not be disadvantaged in putting her case.

[8]On 21 December 2020, further case management orders were made by Employment Judge Ross following correspondence from the parties. In particular, he was concerned about the size of the bundle proposed, given that the matters remitted to the Tribunal were relatively few, yet the bundle proposed would be about as large as the original bundle.

[9]In January 2021, the resurgence of the Covid-19 Pandemic meant that all hearings were generally converted to a remote hearing by video or telephone in accordance with the Senior President’s direction to Tribunals. Due to lack of staff resources, the Claimant was not informed until 28 January 2021 by the Tribunal’s administration that the final hearing had been converted to a remote hearing by CVP. The Claimant applied for an adjournment.

[10]The first day of the hearing, 29 January, was a reading day, for which the attendance of the parties had been excused. The Tribunal refused the application for an adjournment, but, having taken into account the Claimant’s disability and the interests of justice, converted the final hearing to a Hybrid hearing, at which the Claimant could attend the Tribunal for the hearing, with Employment Judge Ross being present in person, and the Non-Legal Members, Respondent and its witness attending by CVP.

[11]On 1 February 2021, the Tribunal provided a Tribunal room, with a large video screen. Prior to the start of the evidence, the Tribunal checked that each party was happy to proceed by way of a Hybrid hearing. Each party confirmed that they were happy to proceed in this way. There was no suggestion at any point of the hearing that either party suffered any disadvantage or unfairness by this arrangement. The fact that evidence and submissions were given in this way did not affect their quality; everyone present in the hearing could see everyone else, and all parties had a hard copy bundle and/or electronic bundle to work from.

[12]The evidence was completed at about 1630 on 1 February 2021. The Tribunal adjourned. The parties exchanged their submissions on about 4 February 2021.

[13]Oral submissions were heard on 8 February 2021. The Tribunal deliberated on their conclusions for the remainder of 8 February 2021 and on 26 February 2021.

[14]The Tribunal specifically considered whether the hearing had been fair or whether something more could have been done by way of reasonable adjustment to assist the Claimant. The Tribunal found that the hearing had been as fair as it could have been. The Claimant was assisted by the Tribunal in identifying those parts of the Claimant’s witness statement which were of direct relevance to the issues, which was not a straightforward exercise due to the length of the statement; the Employment Judge assisted with certain questions put by the Claimant in cross-examination; and the Employment Tribunal attempted to ensure that her case was put to the Respondent’s witness in crossexamination, or clarified whilst the Claimant was giving evidence. The Evidence

[15]There was a bundle of documents spanning two lever arch files. This was not agreed. At the request of the Claimant, the Respondent had included several documents which it did not agree were relevant.

[16]The Claimant had, however, filed a reading list and included a chronology at the end of her witness statement. These identified the documents that she relied upon in particular.

[17]The Tribunal took into account the documents that were put into evidence and considered the extent to which they were relevant.

[18]The Tribunal pre-read the following witness statements: 1) Supplemental witness statement of the Claimant (signed and dated before us); 2) Second witness statement of Gemma Calahane.

[19]The Claimant’s witness statement was relatively long (65 pages) and discursive, given the limited scope of the issues remitted for determination. We found that several parts of the Claimant’s witness statement and a number of documents referred to by the Claimant were simply not relevant to the issues for determination. The Claimant gave evidence in respect of issues already determined and issues not remitted to the Tribunal by the EAT. It is not necessary to list these matters. It should suffice to indicate that the Tribunal focussed on the evidence relevant to the issues for determination.

[20]It is important that this set of reasons is read in the light of the issues that were agreed between the parties (by Counsel after the EAT Judgment was handed down) and defined at the Preliminary Hearing on 3 June 2020. There was no application at this hearing for the list of issues at Appendix A to be amended or corrected in any way. Findings of Fact

[21]The Tribunal set out its findings of fact in respect of the Claimant’s grievance at paragraph 181 - 245 in the Reasons.

[22]We understood the EAT’s reasoning to mean that those findings remained except for the paragraphs referred to in the “Agreed Issues to Remit to the ET document”, to the extent that they were in issue as indicated in that document.

[23]None of the following findings should be read as deviating from our findings of fact in the Reasons which were untouched by the EAT.

[24]The following findings may involve such repetition of our original findings of fact as necessary to provide the context for our additional findings of fact reached from the evidence that we read and heard at this hearing to determine the issues remitted. Was the grievance investigation documentation sent to the Claimant on 1 March 2017 missing documents?

[25]By email on 26 January 2017, Ms Calahane contacted the Head Teacher, and her deputy, Gemma Thurston. Ms Calahane assisted them to write statements in response to the grievance, by noting information on a copy of the Claimant’s grievance. She referred to documents by number in a Human Resources (“HR”) case file shared by them.

[26]On 30 January 2017, Ms Stalham and Ms Thurston sent statements for the grievance, which were added to the HR case file. These statements are at p.257-258 and 1773-1775 (Catherine Stalham’s first statement).

[27]On 30 January 2017, the Claimant had an appointment with Occupational Health (“OH”), and a report was prepared. The findings of fact within the Reasons (paragraph 184) stated the conclusions of the Occupational Health report. The report included the following: p.932: “The below may also assist with supporting to attend meetings and alleviating distress:  Allowing the person to be accompanied by a suitable person  Allowing comfort breaks to enable them to regain composure, absorb/process content etc.  Considering holding the meeting in a neutral location  Providing the individual with information that forms the context of the meeting beforehand to enable them to prepare themselves in advance.” The OH report was added to the HR case file.

[29]On 2 February, Mrs Wiggins, as grievance investigator, collected the pack of documents put together by Ms Calahane in the HR case file and sent to the Westwood Academy.

[30]On 5 February, Ms Wiggs contacted Ms Calahane to state that she was reviewing the pack of documents and asked if Ms. Grande-Imbernon would be providing a statement. Ms Calahane arranged for Ms. Grande-Imbernon to send her statement directly to Ms Wiggs.

[31]On 8 February 2017, Ms Wiggs emailed an invitation to the Claimant to a grievance hearing on 7 February 2017.

[32]On 13 February, the Claimant replied, and asked that documents should be provided in advance to enable her to prepare for the hearing. The Tribunal made relevant findings of fact about this reply at paragraph 187 of the Reasons.

[33]By an email dated 14 February 2017, Ms Wiggs responded and refused the adjustments sought. Our findings of fact about this response are set out at paragraphs 189 – 193 of our Reasons. As the Tribunal pointed out to Mr. Menon during submissions, we had made findings of fact about the Grievance Procedure, including at Paragraph 191 Reasons. In particular, Ms. Wiggs quoted the Grievance Procedure in her response to the Claimant (see p.286). Mr. Menon, having not represented the Respondent at the first final hearing, had not heard Ms. Wiggs’ oral evidence at that hearing (which we had accepted) which was that she had sought to apply the Grievance Procedure. This evidence was corroborated by her email response of 14 February 2017 (at p.286).

[34]Despite the arguments of Mr. Menon, the Tribunal concluded that it had made a finding of fact that there was a PCP, in the form of the Grievance Procedure, which included the provision of not providing the grievance evidence documentation to an employee prior to a grievance hearing; this finding is set out in Paragraph 405 of the Reasons. The EAT had not quashed this finding of fact; indeed, its Judgment was partly based on the PCP set out at paragraph 405 of the Reasons.

[35]On 16 February 2017, the Claimant responded, stating that she would not be attending the hearing and explaining why. This email contained a subject access request under the Data Protection Act 1998.

[36]On 21 February, Ms Calahane emailed the Claimant as explained in paragraph 198 of the Reasons. It is necessary to set out the contents of that email in more detail than in our original Reasons: “Apologies for not getting back to you sooner, I was away over the half term. As I am managing the Sickness Absence Management procedure my involvement with the progression in your grievance case is limited. This segregation of duty is deliberate in order to safeguard against any unfair bias and to ensure the integrity of both the Sickness Absence Management Procedure and the Grievance Procedure whilst in progress. However, the importance of progressing your grievance in order to diminish any further stress is a primary concern as I appreciate the intrinsic link to your health and well-being as identified in the Occupational Health report and recent communications. I have therefore made the following recommendations: Guidance Procedure:  The Trust will facilitate a companion of your choice to accompany you to the grievance meeting. A non official companion can only support and comfort as this role does not facilitate any form of official representation on your behalf.  An investigation pack will be compiled and sent to you under separate cover seven working days prior to an agreed grievance meeting date.  An alternative venue will be arranged.  Appropriate breaks are ensured. The query on accrued holiday entitlement over the period of your sickness absence 2014/2015 has now been investigated. The calculation following this review has been independently verified by ECC HR and I regret to inform you that you have no entitlement outstanding. As this review formed part of your grievance, I will forward to Mrs Wiggs all correspondence pertaining to this review for inclusion in the grievance meeting pack to be sent to you. Mrs Wiggs an investigating officer, will continue to be your contact for progressing your grievance.”

[37]This extract demonstrates that Ms Calahane was well aware of her role as managing the Sickness Absence Management Procedure and that she understood that her involvement with progressing the grievance was limited, for good reasons.

[38]The email tended to show that Ms Calahane saw her role as merely forwarding information to Ms Wiggs and that Ms Wiggs remained the Claimant’s “contact” for progressing the grievance. The inference from the email is that Ms Calahane thought that Ms Wiggs would forward on the investigation documents to the Claimant. The Tribunal found that from the 21 February to the end of March 2017, there was a failure to define who had the duty or duties to send the Claimant the evidence produced for the grievance hearing, with Ms Wiggs relying upon Ms Calahane to do so. This confusion over who was to carry out this role either arose from or was exacerbated by the pressure on Ms Calahane arising from the following matters: 38.1. Winter Garden School had become part of the Respondent Trust. Ms Calahane was responsible for centralisation of many HR paper files from 1 September 2016 into one place. HR files from the Claimant’s school and the other schools were all in the process of being centralised in a different building in Westwood Academy. Ms. Calahane was trying to manage this process, although she worked in an office on a different site. Ms. Calahane described a process of trying to integrate a series of filing cabinets. 38.2. The files from Winter Garden School were in a poor state. 38.3. Ms. Calahane was responsible for HR matters for four Academies and there was only one part-time employee to assist her. Ms. Calahane accepted in evidence that they were overwhelmed at the time. They had difficulty locating documents; for example, they had never been provided with the documents from the Claimant’s Pay Appeal bundle despite requesting these. 38.4. Ms. Calahane was on annual leave over February half-term 2017. 38.5. From around the beginning of March 2017, a bereavement of a close family member of Ms. Calahane.

[39]In addition, certain information was passed directly to Ms Wiggs, and Ms Calahane was not aware of it, evidenced by the email of 22 February 2017, at p.304, which showed Ms Calahane had passed some information directly to Ms. Wiggs without Ms Calahane being copied in. In her oral evidence, Ms Calahane could not recall being sent the questions sent to Ms Stalham by Ms Wiggs, nor the responses of Ms Stalham, although it was apparent that she was sent the email correspondence between them which indicated some documents were to be passed to Ms. Wiggs: see email of 26 February 2017 at 23.26, p.312. It was clear from Ms Calahane’s evidence that there was no system to track the evidence produced for the grievance by Ms Wigg’s investigation nor to track whether it had been provided to the Claimant; and Ms. Calahane had never dealt with such a grievance before, which went back over such a time.

[40]In short, the emails of 21 and 22 February and the oral evidence of Ms Calahane at both this hearing and the hearing in 2018 showed that the failure to send the Claimant all the relevant documents that Ms. Wiggs intended the Claimant to have before the grievance hearing was not due to the deliberate acts or omissions of Ms Calahane and it was unrelated to the Claimant’s disability. The failures which we describe below were the result of administrative mistakes or oversight, not manipulation or victimisation as the Claimant alleged.

[41]On 22 February 2017, Ms Wiggs invited the Claimant to the re-arranged grievance meeting on 7 March 2017: see letter p.305-307, Reasons at paragraphs 199-200. The invitation included: “Any relevant documentation relating to the investigation I have carried out (including statements from witnesses etc) will be provided to you in due course at the earliest opportunity under separate cover.”

[42]This email was copied to HR and forwarded to Ms Calahane. The Tribunal found that the inference from the documentary and oral evidence was that Ms Wiggs genuinely believed Ms Calahane would forward to the Claimant the documents produced by the grievance investigation, not that Ms. Wiggs would need to do so.

[43]On or about 22 February 2017, Ms Wiggs received further information, which we found was a copy of the Pay Appeal minutes at p.175-177, not the Pay Appeal bundle. We found that she did not receive the Pay Appeal bundle of documents; from the Pay Appeal, only the minutes are listed in paragraph 30 of Ms. Wigg’s statement. There was no real evidence before us, as opposed to the Claimant’s presumption, that Ms. Wiggs had received the whole of the Pay Appeal bundle.

[44]Having received this further information, Ms Wiggs emailed Ms Stalham, thanked her for providing documents for the grievance, and requested evidence in response to a list of questions about the grievance and offering to collect documentary evidence: see email 22 February, 10.31pm (p.304).

[45]From the email correspondence (p312-313), Ms Wiggs and Ms Stalham agreed that Ms Wiggs would collect documents from Ms Wiggs at the Trust day on 1 March 2017. Ms Wiggs stated that the documents were “only signed pmrs and the criteria SF was given”, which tended to show that the Pay Appeal bundle was not held by Ms Stalham nor provided to Ms Wiggs.

[46]On 24 February 2017, Ms Stalham replied to Ms Wiggs with her answers to the questions asked by Ms Wiggs as part of her investigation. This response has been referred to at this hearing as Ms Stalham’s second statement for the grievance.

[47]On 26 February 2017, Ms Wiggs forwarded her investigation questions and the answers from Ms Stalham to Ms Calahane for inclusion in the papers to be sent to the Claimant. Although Ms Wiggs forwarded to Ms Calahane the email chain between herself and Ms Stalham, which included the answers and which arranged collection of the further documents (see p.312), this email did not contain any attached documents nor was Ms Calahane expressly requested to forward those further documents onto the Claimant.

[48]On 1 March 2017, the Claimant received the documents in the HR case file collated by Ms Calahane and Ms Stalham, which had been provided to Ms Wiggs on 2 February 2017. It was common ground that these are shown on the index at p.316.

[49]The documents obtained by Ms Wiggs after 2 February 2017, which were relevant to the grievance, had not been added to the case file by Ms Calahane nor sent to the Claimant by Ms Wiggs (who, by inference from her emails over the relevant period, expected Ms Calahane to do this task). The was solely due to the pressure on her from the factors set out above in paragraph 38.

[50]In addition, on 1 March 2017, Ms Wiggs met Ms Stalham and collected the supporting documents referred to in her questions sent on 22 February 2017. These were: 50.1. the Performance Management Review (“PMR”) Planning and Review statement for the 2015 – 2016 academic year, dated 26 February 2016 (p.186-188) which was unsigned; 50.2. the Training and Support annex for 2015-2016 (p.189); 50.3. the PMR Planning and Review statement for the 2016 – 2017 academic year (p.201-205), also unsigned; 50.4. the criteria from STPCD for UPS (p.412-413).

[51]The grievance hearing set for 7 March 2017 was postponed at the request of the Claimant due to her ill-health. We have explained in the Reasons (paragraphs 209-210) that the Claimant was referred to OH again and invited to a third grievance meeting to take place on 31 March 2017.

[52]The invitation letter of 21 March 2017 from Ms Wiggs included the statement that any further documentation relating to her investigation would be forwarded to the Claimant: see p.368-369.

[53]The Subject Access Request was not complied with on the due date, 28 March

[54]By her email dated 28 March 2017 (p372-378), the Claimant stated that: 54.1. she was prepared to attend the grievance meeting; 54.2. but whether she was fit enough would largely depend on the availability of documentation prepared for that hearing; 54.3. the non-compliance with the SAR had an affect on her disability and the ability of a grievance hearing to resolve her complaints; 54.4. as an investigation into the grievance should be fair and objective, she requested that documents listed at 6a-6l should be added to the grievance bundle; 54.5. the documents listed at 5 and 6a-6l would be “very helpful to prevent the grievance hearing appearing subjective and biased” and should be provided ahead of the grievance.

[55]This is a long email. From the tone of it, the Tribunal found that most recipients would understand it to state that all documents in the SAR were relevant to her grievance and should be provided ahead of the grievance meeting.

[56]On 29 March 2017, Ms Calahane received the further report from OH (p.946-947). The report stated that the Claimant was fit to attend the grievance hearing and: “… I understand she is in the process of making you aware of the information she requires prior to this going ahead.”

[57]On 29 March 2017, Ms Wiggs sent two emails in response to the Claimant’s email request for documents. The first of these stated to the Claimant that Ms Wiggs would “take into account all the evidence the Claimant had referred to and signposted”. The second email to Ms Stalham copied and pasted part of the requests in paragraphs 6A-6L of Claimant’s email of 28 March 2017 (but missed off the sections 6G-L which, by inference, was a mistake by Ms Wiggs because she had no reason to miss them off).

[58]Contrary to the suggestion in the Claimant’s evidence, the OH opinion does not state that the provision of all the investigation evidence collected by the Respondent is a necessary adjustment to enable the Claimant to attend the grievance meeting. However, having considered all the evidence, the Tribunal found that the Claimant required the relevant documents for her grievance which Ms Wiggs had received, but which the Claimant did not have, for the reasons that she gave in her email of 30 March 2017 at 14.18 (at p.414-415). The Claimant pointed out that the adjustment requested, to have the documents in advance, was to minimise the effect of her condition: “…my anxiety isn’t just a word to show I have ordinary concerns and need some reassurance, my condition is enormously debilitating. For instance, it makes me question concerns to the point of panic….When I ask for documentation to be prepared before the hearing it isn’t to be difficult or because I’d prefer to see it in advance, it is because it is necessary, essential, in order that I can answer questions that I have to minimise the effect of my condition as far as possible in order to attend the hearing as someone without my condition would be able.”

[59]On the same date, Ms Wiggs forwarded this email to Ms Calahane. Ms Wiggs explained in this email that she had arranged to collect the evidence requested from Ms Stalham, who had worked on it the day before. It is clear from this email (at p414) that Ms. Wiggs intended to share Ms Stalham’s response with the Claimant at the meeting and that due to the short timeframe she would not be able to respond in writing, after HR approval, ahead of the meeting; and it is also clear that she intended to give the Claimant time at the meeting to consider the response from Ms Stalham. Additional grievance investigation documents obtained by Ms Wiggs

[60]On 30 March 2017, Ms Wiggs collected documents from Ms Stalham, consisting of a third statement from Ms Stalham with Appendices 1-5. These are at p.383-411. The appendices consisted of: 60.1. Cover diaries; 60.2. Meeting notes (pp402-405) 60.3. Absence report email and screen shot of epayroll absence reporting for the period required by the Claimant; 60.4. Return to work meeting letter of 11 November 2015; 60.5. Accrued leave policy.

[61]Ms Stalham also gave evidence in the third statement about the Return to Work Meeting on 19 October 2015 and events after the Claimant returned to work, including that Ms Stalham discussed UPS at the interim PMR meeting on 26 February 2016 and not before; Ms Stalham stated that the criteria was given at this meeting and the responsibility was on the Claimant to provide the evidence. The third statement of Ms. Stalham also included evidence that an independent calculation was carried out to ensure that no accrued holiday entitlement was outstanding, and that this was validated by Essex County Council HR.

[62]On 31 March 2017, the grievance meeting went ahead. The Tribunal found that the Claimant did not attend because of her impairment and its adverse effects combined with the failure to provide her with the relevant grievance documents which Ms Wiggs had received. We found that the non-disclosure of that documentation caused the Claimant to be unable to manage her symptoms, which meant that she was unable to attend the grievance hearing. Contrary to our finding at paragraph 219 of the Reasons, having heard and read the relevant evidence over this hearing, it is apparent that documents relevant to her grievance were readily available, because these documents were already in the possession of Ms. Wiggs before the grievance hearing commenced, and they were not provided to the Claimant prior to 31 March 2017. The Grievance Outcome

[63]One matter remitted related to paragraph 237 of the Reasons, in respect of whether there were flaws in the grievance outcome; another matter remitted was the question of whether there was anyone who lacked impartiality, who was controlling the documents held by the Respondent (paragraph 238 Reasons).

[64]As we have explained above, the Tribunal found that there was no person employed by the Respondent who was deliberately withholding documents from the Claimant nor preventing their disclosure. Although the Claimant did not receive all the relevant documentation held by Ms Wiggs, this was the result of error and oversight by Ms Calahane. Ms. Wiggs clearly did not know this at the time of the grievance hearing; she believed that the Claimant had received all the documentation that she had received: see third paragraph of the grievance outcome letter, p421.

[65]In so far as it is alleged that the grievance outcome did not reflect documentation obtained throughout the grievance investigation, the Tribunal did not agree. Ms. Wiggs had reached the conclusions that she had for the reasons set out in the decision letter. We find that this was proved for at least the following reasons: 651. The letter gave detailed reasons for the decision not to uphold the grievance, save in respect of Point 3 of the grievance (concerning holiday pay); but this holiday pay ground did not turn on any documentation provided to Ms Wiggs, who understood that the question of holiday pay had been investigated and confirmed by Ms Calahane separately. 65.2. In respect of Point 1 (lack of adequate support), Ms Stalham provided detailed evidence of the extensive support provided to the Claimant: see her second statement for the grievance, p.309-310, and her third statement, p.383-384 and its appendices. Ms Wiggs provided a reasoned explanation for her decision. 65.3. In respect of Point 2 (failure to support the application for UPS1 progress), Ms Stalham provided evidence to Ms Wiggs to explain why the Claimant had not progressed to UPS1. In essence, this evidence was that the Claimant had not applied for or provided evidence to Ms Stalham to show that she should progress through UPS1, despite opportunities to do so. Moreover, Ms Wiggs found that this was evidenced by the PMR documentation. For example, the Planning and Review statement at p.187, February 2016, states that the Claimant has yet to apply to go through the threshold. Ms Wiggs provided a reasoned explanation for her decision. 65.4. At the hearing in 2018, we found Ms Stalham to be a good witness and we accepted the evidence that she provided about the degree of support, as set out at various paragraphs of the Reasons including from paragraph 113. Furthermore, we found that the Claimant had failed to apply to pass through the UPS1 threshold nor provide evidence that the Claimant’s work meant that she passed the threshold: for example, see paragraphs 80, 126 – 133 of the Reasons. None of these findings of fact were challenged on appeal. We found that even if the Claimant had the documentation provided by Ms Stalham to Ms. Wiggs before the grievance hearing, and even if the Claimant had attended the grievance hearing, the outcome would have been the same on Points 1 and 2 of the grievance. 65.5. In respect of Point 4 (the behaviour of Ms. Grande-Imbernon at the Sickness Absence Review Meeting on 12 January 2017), Ms Wiggs had a witness statement from Ms. Grande-Imbernon corroborated by a statement from Ms Calahane. These did not support the Claimant’s ground of grievance. Ms Wiggs explained her reasons. At the first merits hearing, we heard evidence from Ms. Grande-Imbernon and Ms Calahane and accepted their evidence; we explained in the Reasons that the Claimant was very distressed at this meeting on 12 January 2017 which we were sure affected her recollection of events: see paragraphs 168-179 of the Reasons. The Tribunal found at this further hearing that, even if the Claimant had had all the relevant documents that were before Ms Wiggs, and even if she had attended, the outcome on Point 4 would have been the same.

[66]In addition, the Claimant had received the Pay Appeal outcome letter. The Pay Appeal meeting minutes did not add anything more than minor in substance to the Pay Appeal outcome letter; and, in any event, it was obvious from the grievance outcome decision that Ms. Wiggs had taken into account the Pay Appeal minutes because she referred to the good and outstanding lesson observations referred to in those minutes.

[67]For the avoidance of doubt, the index at p.366 of the Bundle was a work in progress index periodically updated by Ms Calahane and her assistant, which was not sent to the Claimant. This is why it differs slightly from the index at p.316 which the Claimant received: number 62 is not relevant and number 63 is the second statement of Ms Stalham (p309-311) which it is common ground was not disclosed to the Claimant ahead of the grievance hearing. We found that the index at p.366 was updated some time after the bundle was sent to the Claimant on 1 March 2017 and that nothing turned on this. The Grievance Appeal

[68]By an email of 13 April 2017, the Claimant appealed the grievance outcome. The Tribunal made relevant findings of fact about the grievance appeal at paragraphs 246 to 257 of the Reasons, which were left untouched by the EAT Judgment. When did the Claimant receive the remainder of the grievance investigation documents?

[69]On 27 April 2017, the Claimant was provided with three further bundles of documents, because Ms. Calahane had found additional documents sought. These did not include all documents relevant to the grievance but did include a HR/finance document relevant to accrued leave on a phased return (Point 3 of the grievance).

[70]On 2 May, the Claimant was invited to her grievance appeal hearing on 9 May

[71]On 3 May, the Claimant received a further pack of documents. This pack included the grievance investigation questions sent to Ms. Stalham on 22 February 2017, but not the answers and not other documents before Ms. Wiggs at the grievance hearing.

[72]After her resignation, during the disclosure process in these proceedings (in November 2017 and at other times thereafter), the Claimant received the other documents relevant to the grievance. We accepted the Claimant’s evidence about when she received those documents. Summary: did the Claimant receive, in advance of the grievance hearing, all the documents that Ms Wiggs had at that hearing?

[73]At paragraphs 20 – 54 of its Judgment, the EAT drew attention to important relevant findings of fact made by this Tribunal in the Reasons. Paragraph 35 of the EAT’s reasons is as follows: “In paragraph 223 the ET made an important finding that CW had dealt with the grievance on the basis of the evidence that she had before her including that listed at paragraph 30 of her statement. CW’s own evidence from her witness statement was that she had been, “forced to conduct the hearing on the strength of the evidence supplied” see paragraph 30 of her witness statement. She listed that evidence in the same paragraph of her witness statement as follows:(1) Statement from individuals named in the grievance;

(2) Evidence of support from Winter Gardens Academy (cover diaries and weekly meetings);

(3) Stress risk assessment by Gemma Thurston dated 27 September 2016;

(4) Signed performance management documentation form 2015 to 2016 and 2016 to 2017;

(5) Lesson observations;

(6) Pay appeal minutes dated 11 June 2015;

(7) Sickness absence management review minutes dated 12 January 2017;

(8) An OH report dated 30 January 2017.”

[74]From the evidence, and by comparing paragraphs 3 and 30 of Ms Wiggs’s witness statement, we found that the Claimant did not have all of the documents listed in paragraph 30 of the witness statement of Ms Wiggs prior to the grievance hearing.

[75]The Tribunal found that from the list of documents at paragraph 30 of Ms Wiggs’s witness statement, by the date of the grievance hearing, the Claimant had received: 75.1. The first statement of Ms. Stalham; 75.2. The statement of Ms. Thurston; 75.3. Some weekly meeting notes and lesson observations (provided 1 March 2017, item 54 at p.316); 75.4. The target-setting part of the PMR, of 26 February 2016 and October 2016 (provided 1 March 2017, item 30) 75.5. Stress risk assessment dated 27 September 2016 at p.879-881 (which the Claimant admitted that she had received on that date) 75.6. Sickness absence management review minutes (which she admitted she had received prior to the grievance); 75.7. OH report, 30 January 2017, p.392 (1 March 2017 index item 55); 75.8. The Pay Appeal outcome letter dated 11 June 2015 (1 March 2017 index item 14) p.178-179.

[76]With the Claimant’s assistance in her evidence and submissions, the Tribunal found that she did not have the following relevant documents prior to the grievance hearing: 76.1. The witness statement of Ms. Grande-Imbernon; 76.2. The second statement of Ms. Stalham at p.309-311 (consisting of the answers to the questions posed by Ms. Wiggs); 76.3. The documents provided by Ms. Stalham after her answers were sent by email, including some meeting notes that Ms. Stalham relied upon as showing support provided to the Claimant. 76.4. The PMR from July 2016 (unsigned part), at p.186-189, containing the pay recommendation of Ms. Stalham (including “Sarah is on the top of the scale and therefore is not relevant for progression unless she applies for threshold”); 76.5. The third statement of Ms. Stalham, with attachments, at p.383 to p.411, including cover diaries and some other meeting notes. 76.6. The Pay Appeal minutes dated 11 July 2015.

[77]On balance, we found Ms Wiggs was unlikely to have had the pages at “Appendix 6”, p.412-413. We considered the bundle index produced for this hearing was probably incorrect. The document at “Appendix 6” was not listed by Ms Stalham as disclosed (see appendices to the third statement of Ms Stalham for the grievance at p.384) and the words “Appendix 6” appear to be in different handwriting from that of Ms Stalham. We decided that these pages formed part of some other bundle which had become mixed up with the appendices provided by Ms Stalham to Ms Wiggs.

[78]In addition, we found that Ms Stalham did not send Ms Wiggs further lesson observations (other than those mentioned in the index to the bundle sent to the Claimant on 1 March 2017, at p.316); and that the reference in the grievance outcome letter (at p.424) to lesson observations was likely to have been taken from the Pay Appeal minutes (eg. p.176 at para 1.22). This was for several reasons: 78.1. lesson observations are not listed in the appendices to the third statement of Ms Stalham provided to Ms Wiggs (see p.384); 78.2. lesson observations do not appear to have been sent with the second statement of Ms Stalham: see p.312 (“its only signed PMRs and the criteria SF was given”); 78.3. in cross-examination, the Claimant admitted that she did not know exactly what documents Ms Wiggs had in her possession at the grievance.

[79]In conclusion, the Tribunal found that the documents pack sent to the Claimant on 1 March 2017 was missing relevant documentation for the grievance, and that Ms Wiggs conducted the grievance hearing when the Claimant had not been provided with all the relevant documents. Furthermore, the grievance outcome letter did refer to documentation that had not been provided to the Claimant. Did the Claimant resign because of the alleged breaches or last straw event?

[80]The Claimant’s evidence at paragraph 203 of her Supplemental Witness Statement was that she had resigned because of the Tribunal’s failure to make a reasonable adjustment to the grievance process, the inference being that the failure was the provision of all documents relevant to the grievance in advance of the meeting.

[81]The Tribunal did not accept that evidence, finding that although the Claimant now perceived this to be the case, her perception about past events was adversely affected again because of her over-sensitivity about the actions of the Respondent towards her. We found that the Claimant did not resign because of the breaches alleged at paragraph 2(a) to (d) of the List of Issues nor because of the breach of the duty to make reasonable adjustments. We reached this finding for the following reasons.

[82]In her letter of resignation, dated 15 May 2016 (p1813ff), the Claimant did not state that the alleged failure to make the adjustment of providing all documents relevant to the grievance in advance of the meeting, nor any of the matters at Issues 2(a) to (d), as a reason for her resignation. The Tribunal found the letter to be inconsistent with paragraph 203 of her Supplemental Witness Statement.

[83]We asked ourselves whether the alleged failure to make a reasonable adjustment, or the alleged breaches at issue 2, whether taken individually or together, formed one reason for her resignation, rather than the sole reason. However, weighing the contents of the letter of resignation and all the other findings of fact with the Claimant’s evidence at this hearing, we concluded that those matters, taken separately or together, did not constitute one cause of the resignation. In particular: 83.1. The resignation letter (p.1813-1816) identified specific matters which the Claimant stated were a fundamental breakdown in the employment relationship or breach of the implied term of trust and confidence. These were: a) The Head Teacher had made an untrue statement (end of p.1814); b) The invitation to the grievance appeal hearing, in circumstances in which her solicitor had asked for the appeal to be delayed (middle p.1815); c) The notice to attend an informal meeting in respect of her sickness absence (p.1815, bottom); d) The scheduling of meetings was done in order to manipulate the situation, to try and find ways to cover the employer where there were failings and errors that it did not want to address. The Claimant could not cope with being bullied again, as had taken place in the January 2017 meeting (p.1816). The non-disclosure of documents and the hearing of the grievance in the absence of the Claimant were not identified in the resignation letter as amounting to a breach or breaches of the implied term of trust and confidence. We did not accept the Claimant’s explanation for this, nor her complaint that Mr. Menon had been unfairly selective in identifying these items. 83.2. In cross-examination, the Claimant stated that her view having received the document pack on 1 March 2017, which included the first statement of the Head Teacher, was that Ms Stalham was lying in her first statement and controlling the documentation disclosed to the Claimant, being selective to make the Claimant look bad. 83.3. Although the letter does complain that the Claimant was not sent all the documents relevant to the grievance in advance of the grievance hearing, this was a minor or subsidiary part of the resignation letter. For example, there was far more complaint about the alleged flaws in the grievance decision and the alleged failure to postpone the grievance appeal hearing: see for example, bottom p.1814-1815. 83.4. Moreover, in her cross-examination, when this was pointed out and the Claimant was asked if the complaint of failure to provide documents relevant to the grievance had been added to the complaint of constructive unfair dismissal in order to take advantage of the decision of the EAT, she said no and stated that at the time that she wrote the resignation letter, she still had not had disclosure of documents relevant to the grievance, and that being precise was difficult if she had not been given all the documents. Furthermore, in cross-examination, she stated: “My point is: I did not know what Ms. Wiggs had.” The inference we drew from this and other passages of her evidence was that it was only later, after she had resigned and received fuller disclosure, that she realised certain documents existed which were relevant to her grievance and appeal. Therefore, the Tribunal found that this evidence tended to show that the failure to disclose all documents relevant to her grievance hearing before the resignation could not have had any real effect on her decision to resign. 83.5. Furthermore, in her oral evidence, the Claimant stated that she resigned when she did because she had panicked because at that point, she could not imagine circumstances where she could return to the school. When asked if this was because she believed the Respondent was trying to “stitch her up”, she replied that she did not know and was thinking of different possibilities because of her anxiety. We found that that panic was not caused by the alleged breach of duty to make reasonable adjustments nor the matters alleged at issues 2(a) to (d). 83.6. In response to a question from the Tribunal, the Claimant agreed that she would have resigned even without the failure to provide all documents relevant to her grievance, although she could not state when that would have been. The Law Breach of the duty to make reasonable adjustments

[84]The relevant statutory framework was set out at paragraphs 318 - 320 of the Reasons.

[85]Although Mr. Menon relied upon Carphone Warehouse v Martin

UKEAT/0371/21

to argue that one-off administrative incompetence was unlikely to be a PCP, this was not relevant in this case because: 85.1. There was a PCP set out in the Grievance Procedure; and 85.2. The Tribunal had already concluded what the terms of the PCP were (see Paragraph 405 of the Reasons); and 85.3. The EAT had not interfered with this conclusion.

[86]Applying the guidance provided in Environment Agency v Rowan

[2008] IRLR 20

at paragraph 27 and having already defined the PCP, this Employment Tribunal must identify: 86.1. the identity of non-disabled comparators (where appropriate); and 86.2. the nature and extent of the substantial disadvantage suffered by the Claimant.

[87]Substantial disadvantage is such disadvantage as is more than minor or trivial. The operation of the reverse burden of proof provisions within s.136 EQA

[88]In respect of the application of the burden of proof provisions in complaints of breach of the duty to make reasonable adjustments, we considered the guidance in Project Management Institute v Latif

[2007] IRLR 579

(Elias P, as he then was, presiding) at paras 44, 53-54. In short, the Claimant must prove the facts necessary to prove discrimination. If the burden shifts, the employer must show the disadvantage would not have been eliminated or reduced by the proposed adjustment and/or that the adjustment was not a reasonable one to make. Harassment

[89]Section 26 EQA is set out in the Reasons, with an outline of the relevant law and the relevant paragraphs of the EHRC Code.

[90]We reminded ourselves of the reversal of the burden of proof provisions within section 136(2) EQA 2010, as explained in Igen v Wong

[2005] EWCA Civ. 142

and Madarassy v Nomura

[2007] ICR 867

. The Respondent relied on the guidance in Madarassy.

[91]The guidance given by Mummery LJ in Madarassy was expressly endorsed by the Supreme Court in Hewage v Grampian Health Board

[2012] IRLR 870

where Lord Hope added at paragraph 31: “The complainant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the complainant which is unlawful. So the prima facie case must be proved, and it is for the claimant to discharge that burden.”

[92]Lord Hope emphasised the point that the burden of proof provisions have a role to play where there is room for doubt as to the facts necessary to establish discrimination, but that in a case where a tribunal is in a position to make positive findings on the evidence one way or another, they have no role to play. Constructive unfair dismissal

[93]An outline of the law in respect of constructive unfair dismissal is set out in the Reasons, commencing at paragraph 349. There was no challenge to those directions of law by either party. We directed ourselves in law in the same way in reaching the conclusions set out below. Affirmation

[94]In Kaur v Leeds Teaching Hospitals NHS Trust [2019] I.C.R. 1, Underhill LJ at para 63 held: “exercising a right of appeal against what is said to be a seriously unfair disciplinary decision is not likely to be treated as an unequivocal affirmation of the contract.”

[95]In Gordon v J&D Pierce Contracts Limited

UKEATS/0010/20

(12 January 2021, unreported), Lord Summer confronted conflicting Court of Appeal authority and applied the guidance of Underhill LJ in Kaur. Lord Summer held: “[15] The proposition articulated here is that it does not follow that an employee should lose his right to challenge the continuing existence of a contract because he has exercised a right of appeal under that contract (in Kaur the right to appeal a disciplinary decision). Underhill, LJ does not excavate the foundations of this proposition. But it is evident that he is drawing on the contractual concepts that underpin this area of law. Where a contract is repudiated by a party, the other party to the contract may accept the repudiation. If he does so the contract is rescinded and is brought to an end. The innocent party may choose to accept the repudiatory act or he may choose to affirm the contract. It is evident that Underhill, LJ does not consider reliance on one contractual right necessarily signifies an acceptance that all other contractual rights are intact. I respectfully agree. A contract is a bundle of obligations. Some are mutually interdependent. Some serve distinct and severable purposes. In Kaurthe employee had written to her employer to say that she both wished to participate in the disciplinary process and maintain her right to treat the contract as at and end. As I understand it Underhill, LJ's comment is designed to indicate that irrespective of the letter, he did not regard her participation in the disciplinary process as “an unequivocal affirmation of the contract”. “[23] It appears to me that where an employee intimates that he considers the contract has come to an end, he is not to be taken to affirm that the contract has come to an end for all purposes. In particular I do not consider that the parties can be presumed to intend that a clause designed to procure the resolution of differences should be regarded as being evacuated because one party asserts that the implied obligation of trust and confidence has been breached. [24] Although pragmatic considerations are not always a sure guide, it would be unsatisfactory if an employee was unable to accept a repudiation because he or she wished to seek a resolution by means of a grievance procedure. While a breach of contract of contract may have the effect of releasing the parties from their obligation to perform those obligations that are counterparts of one another (having regard to the principle of mutuality of obligation) it should not have the effect of dissolving all obligations (McBryde The Law of Contract in Scotland para. 20-49 and 20-53).” Submissions

[96]The parties each filed written submissions ahead of the hearing listed on 8 February 2021. The Tribunal read all the submissions. Again, the fact that we do not refer to any particular submission is not evidence that it was not taken into account. The Tribunal took into account each and every submission, but it was not necessary to refer to all of them in this set of reasons, the purpose of which was to explain how we reached our conclusions on the issues agreed between the parties.

[97]Mr. Menon’s central focus was on the scope of the issues remitted by the EAT. He pointed out the nature of the issues remitted, which was for the Tribunal to consider the effect of the non-disclosure of documents prior to the grievance hearing. In particular, he argued that this was limited to consideration of such non-disclosure as there was in relation to documents 1 – 8 of those listed in paragraph 30 of the witness statement of Ms. Wiggs and the effect of this on the complaints of unfair constructive dismissal, harassment and breach of the duty to make reasonable adjustments. Conclusions

[98]Applying the law and the findings of fact set out above to the List of Issues at Appendix A, the Tribunal reached the following conclusions. In doing so, we considered the EAT’s Judgment as well as the list of factual paragraphs which Counsel at the EAT agreed were to be remitted. Issue 2: Breach of the implied term of trust and confidence?

[99]The Respondent accepted in submissions that the factual basis of the issues at 2(a) to (d) were made out. In reaching our conclusions, we directed ourselves to the test in Malik. Non-disclosure of documents: 2(a), 2(c), 2(d)

[100]The documentation sent to the Claimant on 1 March 2017 was missing relevant grievance documentation.

[101]Furthermore, the grievance hearing took place despite the fact that the Respondent had not provided the Claimant with all the relevant grievance documents.

[102]The Tribunal concluded that Ms. Calahane was not biased against the Claimant in her treatment of disclosure of documents. As our findings of fact demonstrate, there was no deliberate withholding of documents. Ms. Calahane did fail to forward certain documents to the Claimant, but this was due to a genuine misunderstanding over who would be responsible for sending documents and administrative oversight, not because of any conscious or unconscious bias against the Claimant.

[103]We concluded that the conduct of Ms. Calahane was not calculated to destroy or seriously damage the relationship of trust and confidence between herself and the Respondent.

[104]However, the Tribunal went on to consider whether, objectively viewed, the conduct of Ms. Calahane was likely to destroy or seriously damage the relationship of trust and confidence, even if there was no intent to do so.

[105]We concluded that, objectively viewed, the Respondent’s conduct was not likely to have that effect because: 105.1. The Claimant took a very negative view of the failure to disclose all relevant documents. However, the Respondent had never refused to disclose these documents; indeed, Ms Calahane had informed the Claimant that she would be given all the relevant grievance documentation in advance of the hearing and the Claimant had been given a substantial bundle of documents on 1 March 2017, evidenced by the index at p.316. 105.2. Ms Wiggs, in her email to the Claimant on 14 February 2017 (p.286), had made clear to the Claimant that she would adjourn the grievance hearing and carry out further investigations if necessary. 105.3. It was clear that Ms Wiggs intended to go through with the Claimant at the grievance hearing the later documents sent by Ms Stalham with her third statement: see the email dated 30 March 2017, p.414, from Ms Wiggs. Had such an examination of the documents provided by Ms Stalham on 30 March 2017 taken place, it was likely that Ms Wiggs would have been made aware that the Claimant did not have the other relevant documents that she had in her possession and then ensured that the Claimant was provided with them. 105.4. The grievance outcome letter demonstrated that Ms Wiggs believed that the Claimant had been given all the other grievance documentation that she had received; the inference from that letter is that the Respondent’s intention was that the Claimant should be given all the relevant grievance documents, not that any should be withheld or concealed; if the situation were otherwise, Ms Wiggs would not have stated (in the third paragraph of the grievance outcome letter p.422): “All of the paperwork I have considered I understand was provided to you as part of your subject access request.” 105.5. The Claimant’s perception of the Respondent explained in the Reasons (see, for example, paragraph 20) led to her being disproportionately sensitive to the failure to disclose all the documents that she considered relevant in advance of the grievance, in circumstances in which she did not know precisely what documents Ms Wiggs had in her possession at the date of the grievance, as she admitted in evidence.

[106]For the avoidance of doubt, the annotations made by Ms. Calahane on the Claimant’s grievance had no relevance to the issue of non-disclosure; in the experience of the Tribunal, many HR officers may have made such annotations to assist witnesses. Proceeding with the grievance hearing in the absence of the Claimant: 2(b)

[107]To the extent that the decision to proceed in her absence undermined the Claimant’s trust and confidence in the Respondent, the Respondent had not acted in a way that was calculated or likely to destroy or seriously damage the relationship of trust and confidence, and/or there was some reasonable for the conduct, because: 107.1. The Claimant had been provided with a large number of documents in the HR case file on 1 March 2017, evidenced by the index at p316 which lists 61 documents or types of document. 107.2. Ms Wiggs and Ms Calahane had stated that the Respondent would provide the Claimant with the relevant documentation. Due to oversight, neither Ms Wiggs nor Ms Calahane realised that the Claimant had not been provided with documents generated by Ms. Wiggs’s investigation. 107.3. Contrary to the Claimant’s allegation, Ms Wiggs did not refuse to provide the documents requested very shortly before the grievance meeting on 31 March 2017. The inference from Ms Wiggs’s email of 30 March was that she intended that the Claimant would have time at the grievance hearing to consider all the additional documents, had she attended and discussed the documentary evidence that Ms Wiggs had. 107.4. The Respondent continued to provide documents sought by the Claimant even after the grievance. Issue 3: Did the Claimant resign because of the alleged breaches and/or the last straw event(s) alleged in issue 2?

[108]The Claimant did not resign because of the alleged breaches or last straw event or events alleged in issue 2. We repeat the findings of fact at paragraphs 84 above. Issue 4: Did the Claimant affirm the contract of employment after the alleged breach or breaches of the implied term of trust and confidence and/or the last straw event by not resigning until 15 May 2017?

[109]Although unnecessary, in view of our conclusions above, the Tribunal decided to provide our conclusion on the issue of affirmation.

[110]The Claimant made a grievance appeal after receiving the grievance outcome letter. In so doing, the Claimant was taking a step under the contract of employment by exercising the right to appeal.

[111]The Respondent submitted that the Claimant had affirmed the contract of employment by deciding to appeal against the grievance decision and/or by the delay between her receipt of the grievance outcome on 6 April 2017 and her resignation on 15 May 2017.

[112]The Tribunal directed itself to the guidance provided in Kaur and Gordon. We concluded as follows: 112.1. Although the guidance in Kaur was not an absolute rule, there was no reason for that guidance not to apply in this case. 112.2. The fact that the Claimant was not challenging a disciplinary sanction, but a grievance outcome including her pay, was not a reason not to apply the guidance provided. In the experience of this Tribunal, a complaint about being paid the incorrect amount may well be raised by way of grievance; and it would be contrary to the guidance in Gordon and Kaur if an employee was to lose the right to resign because she complained about pay, made a grievance, and sought to appeal the decision, when the procedure that she relied upon was intended to resolve complaints about his employment. 112.3. Moreover, on the facts in this case, the argument advanced by Mr. Menon was very unattractive; on the Respondent’s own case, the Claimant had not been provided with all the relevant documents for the grievance hearing before that hearing and, as a result, the Claimant had been unable to attend the hearing. 112.4. The fact that the Claimant had resigned before the grievance appeal hearing was a fact which weighed against a finding that she had affirmed the contract of employment. It was good evidence that she had not affirmed the contract of employment. 112.5. The period of the delay was relatively short. Although the Claimant would have received a further monthly payment of her wages, this was only equivocal evidence of affirmation. The Claimant had appealed the grievance and was, until she resigned, awaiting the grievance appeal hearing. Issues 5 -7: Harassment

[113]The factual basis of the allegations at issue 5 was admitted. The Respondent also admitted issue 6, that the conduct was “unwanted”.

[114]The Tribunal considered whether the unwanted conduct was related to disability.

[115]The Respondent’s case was that the unwanted conduct was not related to disability. Mr. Menon relied upon Unite v Nailard

[2018] IRLR 730

and argued that the necessary motivation required for a claim under section 26 EQA was absent in this case.

[116]We concluded that the unwanted conduct was not related to the Claimant’s disability for the following reasons: 116.1. The acts of compiling the bundle and omitting to forward certain documents were the result of oversight and mistake by Ms Calahane in the course of her duties. These acts were not related to the Claimant’s disability in any way. The administrative oversights that Ms Calahane was responsible for were understandable given the context in which they occurred, which we have explained above. They arose in consequence of a lack of clearly defined roles for the provision of documents to the Claimant for the grievance and for the other reasons set out in our findings of fact particularly at paragraph 38. 116.2. All the primary facts led to a positive finding of fact that the reason for the non-disclosure of documents were mistakes, which were in no way related to disability. 116.3. In answers to the Tribunal’s questions, the Claimant stated that Ms Calahane was responsible for the acts of harassment alleged. When asked why, she stated that, from very early on, she was close to the Head Teacher and was given Ms Stalham’s version of events which had clouded her view. The Claimant alleged that the bundle of documents served on her on 1 March 2017 was created not to be spiteful but because Ms Calahane was motivated by unconscious bias, and it was created with a closed mind. This explanation did not suggest that the non-disclosure of documents was related to her disability. Issues 8-9

[117]If we are wrong in our conclusion to issue 7, and the unwanted conduct related to disability and that it had the proscribed effect set out in section 26(1)(b) EQA, the Tribunal concluded that it was not reasonable for it to have this effect, for the following reasons: 117.1. Ms Calahane and Ms Wiggs had assured the Claimant that she would be sent all relevant documents in advance of the grievance. It was not reasonable for the failure to do so to have the proscribed effect, in circumstances in which a bundle of documents had already been provided and such assurances had been made, without at least attending the grievance to see what documents Ms Wiggs had in her possession. 117.2. If it was perceived that the unwanted conduct had been done with unconscious bias, it was not reasonable for such unconscious acts to have the proscribed effect. 117.3. At the time of the grievance, the Claimant did not know exactly what documents existed and did not know what documents Ms Wiggs had, which the Claimant did not have. In those circumstances, it is difficult to view it as reasonable that it had this effect on the Claimant. Issues 10 – 13: Breach of the duty to make reasonable adjustments?

[118]The Respondent applied the PCP of not providing the grievance evidence documentation prior to a grievance hearing: see paragraph 405 of the Reasons:

[119]Mr. Menon submitted that all of the documents referred to by Ms Wiggs at paragraph 30 of her witness statement were: 119.1. relevant to the grievance; 119.2. considered by Ms Wiggs in reaching her grievance decision; and 119.3. should have been disclosed to the Claimant in advance of the grievance hearing.

[120]We directed ourselves to the issues identified in Rowan and reached the following conclusions. The identity of non-disabled comparators

[121]Non-disabled comparators would be employees who were not placed at a substantial disadvantage by not being given documentary evidence relevant to the grievance in advance of the grievance hearing. The comparators would be employees who did not have a more than minor or trivial difficulty in absorbing the contents of documents when they read them, who did not have a reduced ability to communicate, and who did not suffer anxiety and/or who did not have to take steps to manage any anxiety. Did the PCP place the Claimant at a substantial disadvantage? What was the nature and extent of the substantial disadvantage suffered by the Claimant?

[122]The Tribunal concluded that the nature and extent of the substantial disadvantage suffered by the Claimant as a result of the PCP was apparent from the findings of fact in the Reasons: we made findings about the symptoms and substantial effect of the Claimant’s mental impairment at paragraphs 22-38 of the Reasons, having accepted the evidence in the Claimant’s Impact Statement.

[123]The Claimant’s mental impairment in essence consisted of stress-related anxiety and depression. At paragraph 26 of the Reasons, we listed the symptoms of her mental impairment. The evidence was that the Claimant had a reduced ability to communicate for the reasons we explained. A good example of this is set out in the Claimant’s evidence at paragraph 3f of her Impact Statement, at pp77-79 of the original hearing bundle (the contents of which were not challenged in evidence at the first merits hearing).

[124]The non-disclosure to the Claimant of relevant grievance documentation, which had been received by Ms Wiggs, led to the Claimant being unable to minimise her symptoms and meant that she was unable to attend the grievance hearing. We have explained this conclusion in more detail in the findings of fact above.

[125]Accordingly, the Tribunal concluded that the PCP placed the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled.

[126]The Respondent admitted (at paragraph 7.5 Submissions) that, if the Tribunal reached the above conclusions, it would have been a reasonable adjustment for the Respondent to give to the Claimant all the documents relevant to the grievance held by Ms. Wiggs. This concession must be correct; after all, the Respondent had agreed to provide this documentation in advance of the grievance precisely because the Claimant requested this adjustment because she had the mental impairment that she described to them, the relevant effects of which were explained in her email of 28 March 2017.

Summary

[127]The complaint of breach of the duty to make reasonable adjustments is upheld for the reasons set out above.

[128]The complaints of harassment and constructive unfair dismissal are dismissed.

[129]The case will now be listed for a remedy hearing, unless the parties can agree remedy without the assistance of the Tribunal, in which case they should inform the Employment Tribunal as soon as possible. Employment Judge A Ross Date: 22 March 2021 APPENDIX LIST OF ISSUES DEFINED AT PRELIMINARY HEARING ON 3 JUNE 2020 Constructive unfair dismissal

Introduction

[1]The Claimant alleges that the Respondent’s conduct breached the implied term of trust and confidence, entitling her to resign and claim that her resignation was a dismissal in law.

[2]Did the Respondent, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between them and the Claimant when:(a) The investigation documentation sent to the Claimant on 1 March 2017 was missing documentation;

(b) The Respondent conducting the grievance hearing in the Claimant’s absence;

(c) The Respondent conducting the grievance hearing without having provided the Claimant with all the grievance documents;

(d) The grievance outcome sent to the Claimant did not reflect the documentation obtained throughout the grievance investigation and/or cited documentation that had not been provided to the Claimant.

[3]Did the Claimant resign because of the aforementioned alleged breaches and/or the last straw event?

[4]Did the Claimant affirm the contract after any alleged breach by not resigning until 15 May 2017? Harassment

[5]Did the Respondent engage in conduct as follows: a) Not providing particular and/or all grievance documentation prior to the grievance meetings and/or at all during the Claimant’s employment; b) The Respondent conducting the grievance hearing in the Claimant’s absence; c) The Respondent conducting the grievance hearing without having provided to the Claimant all documents. If so, was that conduct unwanted by the Claimant?

[7]If so, did that conduct relate to the protected characteristic of disability?

[8]If so, did the conduct have the purpose or the effect of violating the Claimant’s dignity or did it create an environment that was intimidating, hostile, degrading, humiliating or offensive for the Claimant in the circumstances?

[9]If the conduct had the above effect, taking into account the Claimant’s perception and the other circumstances of the case, was it is reasonable for the conduct to have that effect? Duty to make reasonable adjustments

[10]The Respondent applied a PCP of not providing the grievance evidence documentation to an employee prior to a grievance meeting (see finding paragraph 405 Liability Judgment).

[11]Did this PCP place the Claimant at a substantial disadvantage when compared to persons who are not disabled? The Claimant’s case is that she was placed at the following comparative disadvantage by the PCP: due to her stress and anxiety, she needed to prepare for meetings prior to attending them and therefore needed all relevant documents in advance, because she could not prepare at short notice.

[12]The Respondent had the requisite knowledge at the material times.

[13]If so, would the following have been a reasonable adjustment for the Respondent to take to prevent the PCP causing the comparative substantial disadvantage: sending the Claimant all relevant information prior to grievance meetings (whether the meetings were only planned or in fact took place). Case Number: 3200536/2017 THE EMPLOYMENT TRIBUNALS Claimant: Ms S Fox Respondent: South East Academy Trust NOTICE OF CORRECTION EMPLOYMENT TRIBUNALS RULES OF PROCEDURE 2013 Under the provisions of Rule 69 I hereby correct the clerical mistake(s) in the Judgment herein sent to the parties on 23 June 2021 by substituting the name of the respondent “Directors of South East Academy Trust” to “South East Academy Trust”.

Conclusions

[1]The procedural background in this Claim is set out in the Judgment and Reasons promulgated on 14 November 2018 and the Judgment and Reasons promulgated on 22 March 2021 (“the March 2021 Reasons”). It is not necessary to repeat this background.

[2]In the March 2021 Reasons, the Tribunal concluded that the Respondent had breached the duty to make reasonable adjustments by not providing the Claimant with all the documentary evidence relevant to her grievance prior to the grievance hearing on 31 March 2021. The case was listed for a remedy hearing. The adjustments for the remedy hearing

[3]Prior to the remedy hearing, on 25 May 2021, the Claimant applied in writing to the Court because there had been a dispute over whether her documents, as highlighted, could be included in the bundle. The application was supported by a letter from her GP, dated 25 May 2021. This application was swiftly resolved by a direction from Employment Judge Russell that such documents should be included and that arguments as to the evidential weight to be attached to them could be made. (In the event, the Tribunal’s decision did not turn on those documents nor the weight to be attached to them.)

[4]The remedy hearing was listed as a CVP hearing. This was the first time that the Claimant had attended the Tribunal by CVP. At the outset of the Remedy Hearing, because she appeared visibly anxious, the Tribunal checked whether the Claimant was ready to proceed. She was upset and explained that it was because she was facing two employees of the Respondent (Ms. Calahane and Mr. Harbrow) who had been witnesses in the liability hearings, and who were attending the hearing as lay clients, with the Respondent represented by Counsel. The Claimant was upset even though their cameras had by that stage been switched off.

[5]After a short adjournment, Counsel confirmed that she had authority to proceed without the attendance of Ms. Calahane or Mr. Harbrow, but that she may need an adjournment to take instructions. The Tribunal agreed to proceed on that basis; and in the event, Ms. Brewis did not need to take further instructions.

[6]Before commencing the evidence, the Tribunal confirmed with the Claimant that she was ready to proceed; she confirmed that she was.

[7]At the conclusion of the evidence, the Tribunal checked whether the Claimant was ready to proceed to submissions; she confirmed that she was ready.

[8]The Tribunal proceeded to hear submissions from each party, and then reserved judgment because there was insufficient time to hold in chambers discussion of the issues, draft conclusions and deliver a comprehensive oral judgment. Moreover, the Tribunal was aware of the Claimant’s impaired ability to process information. The Tribunal considered it preferable for the Claimant to receive a decision in written form.

[9]The Tribunal witnessed, as it had at the previous hearings in the case, that a formal Tribunal hearing did cause the Claimant’s symptoms of her impairment of anxiety, including signs of distress; and the Claimant explained why this was the case in her evidence and submissions at the remedy hearing. In terms of reasonable adjustments, the Tribunal were satisfied that every reasonable adjustment that could have been made to address the substantial disadvantage caused by a Tribunal hearing was made. The Claimant did not suggest any further adjustment.

The Issues

[10]At the outset of the hearing, the Tribunal clarified the issues of compensation between the parties. These were as follows:10.1 What general damages should be awarded for injury to feelings?

10.2 Whether any award of special damages in respect of lost wages should be made? If so, what amount should be awarded?

[11]At the outset of the hearing, noting the absence of any expert medical evidence prepared for the remedy hearing, the Tribunal asked the Claimant whether she was advancing a claim for personal injury as a distinct head of loss, because this was unclear from her written evidence. The Claimant explained that she was not confident as to how a claim for personal injury could be brought, and that she understood that it could potentially be included within the claim for injury to feelings, which is how she had decided to proceed.

The Evidence

[12]There was a bundle of documents prepared by the Respondent (pp 1-498). Each party and each Member of the Tribunal had been sent an electronic copy of the bundle. There was no complaint at this hearing that the bundle did not contain all the documents that the parties sought to rely upon.

[13]The bundle included the following documents:13.1 Extracts of the Claimant’s GP notes and other medical records and medical appointment letters;

13.2 The Claimant’s updated schedule of loss;

13.3 The Respondent’s counter-schedule of loss.

[14]In terms of witness evidence, the only witness at the remedy hearing was the Claimant. The Tribunal pre-read a detailed witness statement from her.

[15]As in the earlier hearings, the Tribunal assisted the parties by asking questions designed to clarify the Claimant’s evidence. The Claimant was then cross-examined. The Claimant was then given an opportunity to add any further evidence, as if in re-examination; but she felt she did not need to do so.

[16]The Tribunal found that the Claimant’s oral evidence was difficult to follow in places, in part because of her perception that the single act of discrimination found to be proved was a critical and overarching event, which had had several effects. The Tribunal found that this perception, whilst honestly held, was not reliable. This perception was, on balance, inconsistent with the evidence. Background facts

[17]It is important to set out some context for the relevant findings of fact at this hearing taken from the findings of fact in the March 2021 Reasons:17.1 The Tribunal found that the Claimant could not attend the grievance hearing on 31 March 2017 because of the adverse effects of her mental impairment combined with the failure to provide her with the relevant grievance documentation.

17.2 The fact that the Claimant did not receive all the relevant documents prior to the grievance was the result of error and oversight; Ms. Wiggs proceeded with the grievance hearing unaware that the Claimant had not been sent all the relevant documents.

17.3 The grievance outcome reflected the documentary evidence before Ms. Wiggs; she had reached her conclusions for the reasons set out in the decision letter.

17.4 The Claimant received the documents relevant to the grievance at different times after the grievance hearing as explained in paragraphs 69-72 of those Reasons.

17.5 The breach of the duty to make reasonable adjustments proved was not a cause of the resignation.

Findings of Fact

[18]The Claimant’s evidence was that the discriminatory act covered the period from 21 February to 31 March 2017, when the grievance hearing took place in the absence of the Claimant. We accepted that the failure to disclose relevant documentation did extend over that period, but also that relevant grievance documents were provided at different times after 31 March 2017, including after dismissal, and that on each disclosure the Claimant did suffer some degree of injury to feelings in the form of feelings of hurt, distress and anxiety.

[19]As explained in our findings of fact in the March 2021 Reasons, we found that the Claimant’s failure to attend that hearing had made no difference to the outcome of the grievance.

[20]The central point in the Claimant’s evidence was that the failure to disclose all the grievance documentation to her before the grievance hearing was an act of discrimination which had had far-reaching and long-lasting consequences – which she described as overreaching everything. It had meant that she could not get closure. In essence, her evidence was that although she was unfit for work at the time, her condition was improving with the assistance of medication and counselling; and that, over time, if she had had a chance to put her case at the grievance hearing, she would have returned to work, as she had done after her sickness absence over 2014-2015, after her grievance was heard by a director and after she felt that she had been heard. The Claimant stated that, because of the failure to make reasonable adjustments, the medical evidence showed that her symptoms of mental illness had deteriorated, that she had started a new anti-depressant medication (sertraline) over the relevant period, and that a neurology referral had been made for her at that time. As for medical evidence, the Claimant identified her GP letter at p.357, her GP notes, documents in respect of the neurology referral and cognitive therapy, and the referral for a mental health assessment.

[21]The Tribunal did not accept the thrust of the Claimant’s evidence. We considered that although the Claimant held this perception, her memory was unreliable due to her negative perception of the Respondent arising from the events detailed in our earlier sets of Reasons and because of the anxiety and distress caused by the number of work-related matters complained of by the Claimant which were not acts of discrimination. We reached this conclusion by considering her evidence at this hearing and weighing it against the primary facts already found in the liability hearings and the further documentary evidence at this remedy hearing. The Tribunal reached the following findings of fact.

[22]As the Claimant accepted, the act of discrimination proved did not cause the mental impairment of the Claimant. There were several other events which were stressors for the Claimant, before the act of discrimination proved. These were evidenced by the several complaints made in this Claim.

[23]Over a period of time, these various stressors had caused or contributed to the stress-related impairment. The Tribunal found that it was unlikely that the act of discrimination had the broad, overarching, effect that the Claimant alleged.

[24]The Claimant had started anti-depressant medication, citalopram, in January 2015, and commenced therapy in late in 2014 which continued into 2015. This treatment was required well before the act of discrimination, indicating that the symptoms of her impairment required measures to be taken to ameliorate them before the failure to provide her with all the grievance documentation. A central stressor for the Claimant concerned her pay and pay appeal. We explained our findings and conclusions on those issue in our November 2018 Reasons.

[25]The Claimant had a phased return to work after her grievance outcome of October 2015, but was then absent sick from 22 November 2016 until her resignation. The inference from the Claimant’s evidence was that the cause of this absence was her feeling that the grievance outcome had not been honoured and the resulting stress that this caused.

[26]Although the Claimant alleged that the act of discrimination found proved had dramatically altered the trajectory of her improvement, we found that she was unable to return to work by the end of February 2017 and that her condition at that point was not the result of any discrimination by the Respondent. Moreover, as explained in the November 2018 Judgment and Reasons, and as admitted by the Claimant in her evidence at this hearing, the Claimant found the Sickness Review Meeting on 12 January 2017 to be particularly distressing.

[27]Although the Claimant’s evidence was that after the 12 January 2017 review meeting, a referral to Occupational Health, counselling and adjustments made at her son’s college meant that her mental health was improving, the Tribunal found that the Claimant’s recollection about the degree of improvement and its trajectory was not accurate. The GP records at p.145-147 do not suggest that she was ready to return to work nor that her symptoms had improved at the point at which she first learned that she had not received all the grievance documents (when she received the grievance outcome).

[28]Although the Claimant stated that the records showed that her symptoms had deteriorated, due to references to self-harm and Irritable bowel syndrome and irritable bladder syndrome, the Tribunal did not accept that this was apparent from the medical evidence provided. For example, on 22 November 2016, the GP notes record that there was a pay related issue from 2 years ago, which was not yet resolved and that the Claimant “does not feel she can go back to the school”; and the notes for 2 February and 3 March 2017 tend to suggest that the Claimant had not had any change in her symptoms. Moreover, the Tribunal had already made findings of fact that the Claimant did not know precisely what grievance documents were held by the grievance officer, so it was unlikely (because of that lack of knowledge and also because of the content of those documents) that her condition deteriorated or that the rate of improvement in her symptoms was reduced on a medium or long-term basis because of the proven breach of the duty to make reasonable adjustments.

[29]There was no expert medical opinion evidence setting out what effect the act of discrimination had on the Claimant’s impairment. The Tribunal found that there was no medical evidence linking the act of discrimination with a further injury. Although the Claimant’s evidence was that she had been referred to a specialist to assess whether she had Post Traumatic Stress Disorder, she did not prove on a balance of probability that she had that impairment, nor that this specific impairment was caused by the discrimination proved. There was no expert evidence to support such a diagnosis or causation.

[30]Having weighed all the relevant evidence, the Tribunal found that the act of discrimination caused only a moderate exacerbation of the Claimant’s symptoms. As explained in our March 2021 Reasons, this did prevent the Claimant from attending at the grievance hearing, which was a lost opportunity for her to put her case. However, we found that the exacerbation was relatively short-lived, probably for the period of around 6 weeks leading up to the grievance hearing and the grievance outcome and for a short time thereafter.

[31]However, the Tribunal did find that this was an unusual case, in that the Claimant’s anxiety symptoms and injured feelings were increased episodically, for a few weeks, on each of the later dates when the Respondent disclosed further documents. As we have found, some of this injury to feelings occurred even after her resignation.

[32]In addition to the above findings, the Tribunal reached the findings at paragraphs 30 and 31 above because:32.1 The act of discrimination proved was not a cause of the resignation; the March 2021 Reasons explained, at paragraph 83, that there were several other matters which were the cause of the resignation and, by inference, these were the causes of the greater degree of upset and injury felt by the Claimant.

32.2 There were several other complaints of discrimination alleged, all of which were not upheld. This is apparent from the original List of Issues agreed for the hearing on liability, which shows that there were approximately 19-20 complaints of discrimination at the outset of the liability hearing as well as additional matters which were alleged to amount to a breach of the implied term of trust and confidence. It is not apparent from the Claim form, nor from the Claimant’s first witness statement, nor from the original List of Issues, that the breach of the duty to make reasonable adjustments found proved was alleged to be of such fundamental importance in terms of injury to the Claimant or her feelings. This was inconsistent with the thrust of the Claimant’s evidence at the remedy hearing.

32.3 At the time that the Claimant learned of the grievance outcome, it was the fact that Ms. Wiggs had proceeded in her absence, and reached a grievance outcome which was largely against the Claimant, that triggered the greater part of the increase in those symptoms: see paragraph 25 of the Claimant’s witness statement which describes how she felt shocked and sick on learning that the hearing had taken place.

32.4 Although the grievance outcome informed her that some relevant documents had not been disclosed, the Claimant only found out about the remaining documents over time. The Tribunal found that she was vulnerable to injury to feelings and exacerbation of symptoms due to her mental impairment, and these late disclosures did cause fairly short episodes of anxiety. In the March 2021 Reasons, we explained that we accepted the Claimant’s evidence about when she received each batch of further documents.

[33]A good example of the Claimant’s misperception of events which demonstrated that her evidence was not reliable was the Claimant’s evidence about the sum of £298.11 sick pay, which she claimed in respect of April 2017. When asked what this claim was based on, the Claimant stated that her contract of employment had entitled her to sick pay as full pay for a certain period, and then as half pay; and that after the grievance hearing outcome in March 2017 and grievance appeal hearing, her pay had reduced to half pay in April 2017, before her resignation in May 2017. When questioned about this, it was put to the Claimant that the grievance outcome would have been unsatisfactory for the Claimant, even if the documents had been disclosed, and so she would have remained off work. The Claimant stated that that depended, and contended that she would not have remained off work if she had been able to attend the grievance, even if her grievance had not been upheld. Her evidence was that she would have “happily returned to work”, had her grievance been handled fairly.

[34]The Tribunal found that this part of the Claimant’s evidence difficult to follow and found that it was inconsistent with the medical evidence and the history of her sickness absence, which showed that she had been sick for one year in 2014-2015 with stressrelated illness and that she had been absent sick from 21 November 2016 through to March 2017 with no suggestion that she was likely to be well enough to attend work.

[35]For the avoidance of doubt, the Tribunal heard no evidence that the Respondent had apologised to the Claimant for the disability discrimination found proved. Relevant Law Injury to feelings

[36]The principles of law to be applied by the Tribunal when assessing injury to feelings are set out in Armitage v Johnson

[1997] IRLR 162

, paragraph 27, which we summarise as follows:36.1 Injury to feelings awards are compensatory and should be just to both parties. They should compensate fully without punishing the discriminator. Feelings of indignation at the discriminator’s conduct should not be allowed to inflate the award;

36.2 Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could be seen as the way to untaxed riches;

36.3 Awards should bear some broad general similarity to the range of awards in personal injury cases – not to any particular type of personal injury but to the whole range of such awards;

36.4 Tribunals should take into account the value in everyday life of the sum they have in mind, by reference to purchasing power or by reference to earnings;

36.5 Tribunals should bear in mind the need for public respect for the level of awards made.

[37]The matters compensated for by an injury to feelings award encompass subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression (see Vento v Chief Constable of West Yorkshire Police (No2)

[2003] IRLR 102

[38]Further, we took into account the Presidential Guidance on Employment Tribunal awards for injury to feeling and psychiatric injury issued on 5 September 2017 as providing the approximate Vento bands relevant in this case (i.e. uprated for inflation and the Simmons v Castle uplift). We recognised, without doing the precise calculations, that the relevant bands would have been slightly lower given the date of presentation of the Claim (8 June 2017).

[39]We reminded ourselves of, and applied, the following from the relevant Presidential Guidance:10. Subject to what is said in paragraph 12, in respect of claims presented on or after 11 September 2017, and taking account of Simmons v Castle and De Souza v Vinci Construction (UK) Ltd, the Vento bands shall be as follows: a lower band of £800 to £8,400 (less serious cases); a middle band of £8,400 to £25,200 (cases that do not merit an award in the upper band); and an upper band of £25,200 to £42,000 (the most serious cases), with the most exceptional cases capable of exceeding £42,000.

11. Subject to what is said in paragraph 12, in respect of claims presented before 11 September 2017, an Employment Tribunal may uprate the bands for inflation by applying the formula x divided by y (178.5) multiplied by z and where x is the relevant boundary of the relevant band in the original Vento decision and z is the appropriate value from the RPI All Items Index for the month and year closest to the date of presentation of the claim (and, where the claim falls for consideration after 1 April 2013, then applying the Simmons v Castle 10% uplift). Damages for psychiatric injury

[40]The assessment of damages for psychiatric injury is a question of fact to be determined by the tribunal.

[41]Injury to feelings and psychiatric injury are distinct. But in practice, they are not always separable, leading to a risk of double recovery; it may be impossible to say when the distress and humiliation becomes a psychiatric injury.

[42]Given the guidance in Armitage (that awards for injury to feelings should bear some broad general similarity to the range of awards in personal injury cases), the Tribunal also considered the Judicial College Guidelines for the Assessment of Damages in Personal Injury Cases, 14th Edition (i.e. not the 15th Edition published in 2019). These include: “Psychiatric Damage Generally The factors to be taken into account in valuing claims of this nature are as follows:(i) the injured person’s ability to cope with life, education, and work;

(ii) the effect on the injured person’s relationships with family, friends, and those with whom he or she comes into contact;

(iii) the extent to which treatment would be successful;

(iv) future vulnerability;

(v) prognosis;

(vi) whether medical help has been sought;

(vii) Claims relating to sexual and physical abuse usually include a significant aspect of psychiatric or psychological damage. ...”

[43]There are four categories of award (including the Simmons v Castle uplift):43.1 Less Severe: between £1,350 and £5,130. Where the claimant has suffered temporary symptoms that have adversely affected daily activities;

43.2 Moderate: between £5,130 and £16,720. Where, while the claimant has suffered problems as a result of the discrimination, marked improvement has been made by the date of the hearing and the prognosis is good;

43.3 Moderately Severe: between £16,720 and £48,080. Moderately severe cases include those where there is work-related stress resulting in a permanent or long-standing disability preventing a return to comparable employment. These are cases where there are problems with factors a) to d) above, but there is a much more optimistic prognosis than Severe;

43.4 Severe: between £48,080 and £101,470. Where the claimant has serious problems in relation to the factors at i) to iv) above, and the prognosis is poor. Divisible and Indivisible Harm

[44]The Tribunal directed itself that divisible harm is where different acts cause different damage, or quantifiable parts of the damage. In these cases, the tribunal must establish and award compensation only for that part of the harm for which the respondent is truly responsible. Indivisible harm is where multiple acts result in the same damage.

[45]In BAE Systems (Operations) Ltd v Konczak

[2017] EWCA Civ. 1188

, the Court of Appeal held:45.1 Where the harm has more than one cause, a respondent should only pay for the proportion attributable to their wrongdoing unless the harm is truly indivisible.

45.2 Tribunals should try to “identify a rational basis on which the harm suffered can be apportioned between a part caused by the employer’s wrong, and a part which is not so caused.” The Tribunal should see if it “can identify, however broadly, a particular part of the suffering which is due to the wrong”.

45.3 Where such a ‘rational basis’ can be found, the Tribunal should apportion accordingly, even if the basis for doing so is ‘rough and ready’.

45.4 Any such assessment must consider any pre-existing disorder or vulnerability, and account for the chance that the claimant would have succumbed to the harm in any event, either at that point or in the future.

45.5 In cases of psychiatric injury, careful evidence should be obtained from experts, particularly in relation to the likelihood of suffering the harm in any event. Submissions

[46]The Tribunal heard oral submissions from the parties. Each party expanded on the points in their schedules of loss.

[47]In terms of the award for injury to feelings, the Respondent’s Counter-Schedule contended that lower band was £500 to £5,000; and that the award should be in the middle of the lower band at £2,500. The Tribunal pointed out to Counsel that, given the date of the presentation of the Claim (June 2017) and allowing for inflation and the Simmons v Castle 10% uplift, the lower band was actually close to that defined in the Presidential Guidance dated 5 September 2017; so the lower band was roughly £800 to £8,400. The Respondent accepted this point; and therefore argued that the award for injury to feelings should be £4,200 to £4,800.

[48]The Claimant’s case was that the award for injury to feelings should be at the lower end of the middle band. She assessed its value as £6,600 (although this was asserted on the mistaken basis as to the value of the relevant bands at the material time, the date of presentation of the Claim). In submissions, however, the Claimant explained that it was not a question of the size of the award; she wanted recognition that the act of disability discrimination had been serious for her as an individual.

[49]In her evidence and submissions, the Claimant did not allege that the discriminatory act found proved had caused the stress-related illness, but that it had made the symptoms worse and that she had been improving to such an extent with the benefit of medication and counselling that, had the discriminatory act not occurred, she was likely to have returned to work. As the Tribunal has explained in the findings of fact, we did not accept the Claimant’s case.

[50]The Tribunal proceeded to determine the issues by recognising that the Claimant sought an enhanced injury to feeling award to reflect the exacerbation of her symptoms of anxiety and depression by the act of discrimination found proved.

[51]The Claimant explained that she did not seek aggravated damages, but that there were aggravating features which should lead to an enhanced award of injury to feelings. These were alleged to be:51.1 the Respondent had disputed the issue of whether she was a disabled person;

51.2 there was late disclosure of documents even after the original non-disclosure in the period leading up to the grievance hearing; and

51.3 the Respondent had failed to apologise.

[52]The Claimant did not advance any arguments to suggest that she was entitled to sums claimed in her schedule of loss in respect of unfair dismissal or failure to comply with the ACAS Code of Practice. This was sensible, because, given our findings of fact, those heads of loss could not succeed.

Conclusions

[53]Having taken into account all the evidence and submissions, the Tribunal applied the above law to the facts found, and reached the following conclusions. Issue 1: Award for injury to feelings

[54]The Tribunal agreed with the Claimant that this was not a case where it was just and appropriate to make a separate award for personal injury. This was a case in which it was likely to be very difficult (if not impossible) to state precisely whether or when the distress and humiliation from the act of discrimination proved became personal injury.

[55]However, the Tribunal accepted that the act of discrimination proved did exacerbate the anxiety symptoms of the Claimant on a temporary basis, and episodically, as explained in our findings of fact. We considered that the just way to proceed was to factor the exacerbation of symptoms into the award for injury to feelings, which, after all, should include damages for worry, anxiety and distress.

[56]The Tribunal decided that the appropriate award for injury to feelings on the facts in this case was in the lower Vento band. We decided that the award should be slightly above the mid-point of that band and concluded that the appropriate award was £5,000. We reached these conclusions for the following reasons:56.1 It is important to recognise that the guidance of the Court of Appeal in Vento (at paragraph 66) explained that the lower band was the appropriate band for less serious cases where there was an isolated or one-off occurrence. In this case, there was one finding of disability discrimination.

56.2 The Tribunal found that the proven act of discrimination did not prevent the Claimant returning to work. On a balance of probabilities, considering the medical and other evidence as a whole, the Claimant did not return to work because of her underlying mental impairment and ill-health, not because of the effects of the proven discrimination. In particular, the Claimant did not discover about several documents which had not been disclosed until after her resignation.

56.3 The Claimant viewed the discriminatory act as of fundamental importance to the degree of her injury to feelings. We concluded that this was incorrect as a matter of fact.

56.4 The Tribunal recognised that there is a spectrum of single incidents of discrimination; and some single incidents of discrimination may be very serious by the words used or their context, such as where a disability-related or race-specific insult or punishment is used. However, this case was towards the less serious part of that spectrum, because:56.4.1 The discrimination had not been deliberate. Although unlawful, it had been the result of oversight and mistake: see paragraph 116.1 of the March 2021 Reasons.

56.4.2 The Respondent had not refused to send the grievance documentation to the Claimant at any point. On the contrary, they had agreed to do so, evidenced by the findings of fact made including that a pack of relevant documents had been sent to the Claimant ahead of the hearing. Ms. Wiggs thought that the Claimant had been sent all the relevant documents and she planned to go through the additional documents, which had been sent to Ms. Wiggs just before the grievance hearing, at that hearing: see, in particular, paragraph 107.3 of the March 2021 Reasons.

56.5 It was necessary to separate out the injury to feelings caused by the single failure of the duty to make reasonable adjustments found proved from the several other stressors and allegations, which were found not to be the result of discrimination, but which were alleged to have injured the Claimant’s feelings. Having done so, the injury to the Claimant’s feelings caused by the proven discrimination lasted for a relatively short time overall, and it was overtaken by her feelings of anxiety and distress caused by the Claimant’s perception that there were flaws in the grievance outcome; and this perception was mistaken: see for example paragraph 65 of the March 2021 Reasons. Subsequently, the Claimant’s feelings of anxiety and distress were caused by those matters which she identified to be a fundamental breakdown in the employment relationship or breach of the implied term of trust and confidence: see paragraph 83 of the March 2021 Reasons.

56.6 However, there were factors which enhanced or aggravated the injury to feelings which caused the Tribunal to decide that the award in this case should be slightly above the centre of the lower Vento band:56.6.1 The Claimant’s anxiety symptoms were exacerbated each time she discovered there were documents before the grievance officer not disclosed to her. This lasted initially for a period of weeks up to and extending for a few weeks after the grievance outcome letter, which was when she realised that she had not been sent all the relevant documents; and then she had similar symptoms arising for a few weeks on each occasion that she received further documents that were before the hearing officer at the grievance hearing.

56.6.2 The Respondent had defended the allegation that the Claimant was a disabled person. This had been done in the face of overwhelming evidence that she was a disabled person protected by section 6 and Schedule 1 EQA. After all, she had been absent sick as a result of her impairment for the best part of two school years at the point of her resignation, the Respondent’s Occupational Health evidence had advised that she was likely to be a disabled person as defined in the EQA, and the Respondent had advanced no positive case against her evidence. By proceeding in this way, by putting the Claimant to proof, it caused considerable further upset to the Claimant not least by increasing the length of the hearing. The Claimant identified that each Tribunal hearing was a real stressor for her. Moreover, the Tribunal had some difficulty in understanding how or why the Respondent could maintain this defence after the Claimant gave oral evidence.

56.6.3 There was no apology by the Respondent. This was despite the fact that the Respondent had known from the date of promulgation of the March 2021 Reasons that a finding of disability discrimination had been made and despite the Respondent having maintained its stance that the Claimant was not a disabled person at all.

56.6.4 The effect of this act of discrimination on the Claimant was far from trivial. She was vulnerable to injury to her feelings, because of her misperception of past events. This did not mean that the injury to feelings that she suffered was not significant. The Tribunal concluded that an award towards the bottom of the lower Vento band would not reflect the seriousness of the injury suffered and would undercompensate the Claimant. An award of that size was likely to reduce respect for the policy of the anti-discrimination legislation.

56.7 The Tribunal took into account the real concern of the Claimant that the award should be publicly seen to be serious – and if an award was made in the lower Vento band, the discrimination would not be seen as serious despite the significant impact of it on her. However, we recognised that Society has condemned discrimination and noted that awards must be at such a level to ensure that it is seen to be wrong. The fact that we decided to award a sum in the lower bracket of Vento did not mean that the act of discrimination was not serious. As the Court of Appeal in Vento explained, certain acts of discrimination are less serious. The Tribunal considered that breach of the prohibitions on discrimination in the EQA are never trivial nor insignificant. We concluded that all acts of unlawful discrimination by an employer are serious – but some are more serious than others.

56.8 We cross-checked our award with the relevant Judicial College Guidelines (14th Edition) for the assessment of general damages awards in cases of Personal Injury. We found that the exacerbation of symptoms in this case put the award towards the middle of the Less Severe category. Therefore, an award of £5,000 adequately compensated the Claimant for both the injury to feelings and the exacerbation of her anxiety symptoms. Issue 2: Pecuniary loss

[57]The Claimant failed to prove that she was entitled to the loss of earnings claimed. The Tribunal repeats the findings of fact at paragraph 33 – 34 above. Interest

[58]The Respondent properly admitted that the Claimant was entitled to statutory interest at 8%. Interest was agreed at £1,733.32. The figure for interest provided in the original judgment (£860.27) had been miscalculated by the Tribunal.

[1]The Claimant’s application for a costs order against the Respondent is struck out and DISMISSED under Rule 37 (1) (c) of the 2013 Rules.

[2]The Tribunal strikes out the application of its own initiative on the ground that the Claimant has not complied with orders of the Tribunal.

[3]The Claimant was given a reasonable opportunity at this hearing to make representations. Her application to postpone today’s hearing was refused.

[1]Written reasons were asked for by the Claimant at the Hearing itself.

[2]We wish to record that the Claimant exhibited signs of anxiety, distress and tearfulness as symptoms of her mental health impairments but was able to listen to the Tribunal’s explanations, understand the points made by Mr Williams on behalf of the Respondent and certainly after the break between 12.20 and 12.40 pm was calm and less agitated. We are satisfied that every reasonable adjustment was made to address the substantial disadvantage caused by a formal tribunal hearing. In particular as notified to the Claimant on 4 November 2022, in a letter sent by Acting Regional Employment Judge Russell, a new judge with no prior involvement was allocated to this case. Employment Judge Elgot made it clear to the Claimant that she has not read any part of the without prejudice correspondence which has been deemed inadmissible.

[3]No member of the Tribunal has read the content of the bundle (149 pages) sent yesterday by the Respondent (14 December 2022). The Claimant has strongly objected to the content of that bundle but has not been able to say why or identify those documents or parts of documents to which she takes objection; she told us that she had insufficient time to undertake this task. The Respondent has in any event withdrawn that bundle and does not rely on its content for the purposes of this costs hearing.

[4]The Respondent’s costs application against the Claimant was withdrawn on 18 November 2022.

[5]The Claimant made a costs application dated 21 July 2021 shortly after receipt of a Remedy Judgment in her favour in relation to proceedings begun on 8 June 2017. The short history of those proceedings is that over the course of four years the claims of constructive unfair dismissal and disability discrimination were the subject of a partially successful appeal and reconsideration in relation to both liability and remedy (calculation of interest).

[6]The most recent Judgment with Reasons following Reconsideration is dated 15 June 2022 and was sent to the parties on 21 July 2022.

[7]It is therefore only the Claimant’s application for costs which is the subject of today’s hearing listed for two days on 15 and 16 December 2022. That is the only matter still in issue in this case.

[8]On 15 June 2022 there was a Preliminary Hearing (PH) in private by CVP conducted by the original judge EJ A Ross (sitting alone). He had converted the previously listed Costs Hearing into a preliminary hearing to consider case management. At that PH despite the subsequent amendments and further orders which were made the Claimant was told that she would have responsibility for agreeing with the Respondent an index of documents relevant to the mutual costs applications. She therefore knew that she must search for and disclose all her relevant documents to the Respondent and she should have commenced that task immediately; her deadline was 11 August 2022. She did not apparently do this. At the same hearing she was given permission to prepare a further witness statement and exchange of witness statements was ordered no later than 8 September 2022. The Claimant did not take any such step even though at paragraph (2) (f) of her email dated 11 November 2022 and addressed to AREJ Russell she agrees a new deadline for witness statements by 9 December 2022.

[9]On 7 October 2022 this hearing was listed for 15 and 16 December 2022 and the parties were notified.

[10]On 4 November 2022 following receipt of further clarification sought from the parties Acting Regional Employment Judge Russell wrote to them in relation to redaction of certain documents and an amendment to the List of Issues from the PH of 15 June 2022. The amendment to the List of Issues was relevant to the content of any witness statement that Claimant was directed to prepare and indeed removed two of those issues.

[11]AREJ Russell then made further case management orders including a requirement for the parties to send to each other a copy of any witness statement upon which they intended to rely. The Claimant did not comply with this direction even though she told us today that she intends to give witness evidence on her own behalf in support of her costs application. She similarly did not, as directed by AREJ Russell, identify those documents in the existing bundle which she required to be redacted. Her email dated 11 November 2022 makes it clear at paragraph (2) (b) that the Claimant seeks ‘permission to include further documents to those proposed by the Respondent in relation to the unreasonable conduct I allege’.

[12]Shortly after 4 November 2022 the Respondent withdrew its application for costs against the Claimant.

[13]The Claimant’s application dated 28 November 2022 requesting a postponement of the Costs Hearing, acknowledging her case management responsibilities and requesting that ‘I be given adequate time to produce the chronology, bundle and my witness statement’ was decided by AREJ Russell who wrote to the parties on 2 December 2022 refusing a postponement and stating ‘if the Claimant pursues her costs application then she must make sure that all relevant documents, chronology and statements are provided to the respondent by 9 December 2022’.The Claimant did not comply with these directions of the Tribunal. We are satisfied that it is not the case, as the Claimant alleges, that she only had one week between 2 and 9 December 2022 to prepare her documents and witness statements. She was on notice of the necessity to take these steps by reason of the orders of the Tribunal on 15 June 2022 and 4 November 2022.

[14]The Claimant applied again for a postponement which was refused by AREJ Burgher on 14 December 2022 but which extended the deadline for her ‘to provide all the relevant documents she wishes to rely on by 2pm today’.

[15]The Claimant has not complied with the orders of AREJ Russell dated 2 December 2022 or the order of AREJ Burgher dated 14 December 2022. Her application to us for a further postponement is refused. This is a case which began in June 2017. A postponement would lead to a further delay of at least four months before a new listing is possible. The Claimant has had ample time and forewarning of her case management obligations in relation to her own costs application.

[16]The Claimant produced a small bundle of miscellaneous paper work today, no chronology and no witness statements. It is unclear which parts of it have been sent to the Respondent. The non -legal members do not have a copy. The file of paperwork she has sent to the Tribunal at 13:08 on 14 December 2022 is not compliant with previous orders. It makes extensive cross-reference to ’tribunal papers’ and states that these will not be sent ‘as you clearly have copies’. There is then a list of documents not all of which are readily identifiable which it would require the Tribunal and the Respondent to search their existing files to discover. The Claimant requires certain of those documents to be redacted but does not say how. We anticipate that any such exercise would take at least 4-6 hours to search the relevant files. Those documents include, using the Claimant’s own description, an unfinished chronology (work in progress), unfinished statement (work in progress), notes for statement (work in progress). The Claimant concludes ‘I cannot be sure this is everything I would include with more time but in this short time is the best I can do’.

[17]In all the circumstances and in view of our findings of fact set out above we are satisfied that the Claimant has failed to comply with orders of the Tribunal. The limited documents she has sent in support of her application for costs against the Respondent are incomplete by her own admission and unusable in their existing format (requiring significant cross-referencing). There is no witness statement sent by her to the Respondent or the Tribunal.

[18]The Respondent does request a dismissal of the costs application in its email dated 12 December 2022. This application was not robustly pursued by Mr Williams today who did his best in furtherance of the overriding objective to assist the Claimant and acknowledged her health difficulties. However of our own initiative and under Rule 37 of the Employment Tribunal Rules we are certain that the Claimant has persistently failed to comply properly or at all with the orders of the Tribunal and accordingly her costs application is struck out and dismissed.

[1]This hearing was to consider an application for costs made by the Claimant on 21 July 2021. I was provided with a bundle of documents running to 620 pages. The Claimant had provided her written submissions to the Tribunal and the Respondent on 16th July. The Respondent had provided its submissions to the Tribunal and the Claimant at 12.43 the day before the hearing, despite an order from the Tribunal that submissions should be served 7 days before the hearing.

[2]At the start of the hearing the Claimant complained about the lateness of the Respondent’s submissions and that it contained without prejudice material. We discussed this at the start of the hearing. I explained that I had not yet been able to read many of the documents and that we would need to adjourn for the morning in any event while I read the key documents. I hoped that this would give the Claimant a bit more time to consider the Respondent's submissions, which in any event only ran to 7 pages, (the first 2 pages of which rehearsed the chronology with which the Claimant was familiar) and for the Respondent to redact the reference to without prejudice material. If this was insufficient the only alternative would be to postpone the hearing. After further discussion the Claimant agreed that she was happy to go ahead, and the Respondent agreed to provide a new redacted version of its submissions.

[3]I heard submissions from the Claimant and from Mr Williams. The Claimant was also given a right of reply. I gave Judgment at 3 pm on the second day. The relevant statutory provisions and the law.

[4]Rule 74 Employment Tribunal Rules of Procedure 2024 provides that: “74(1) The Tribunal may make a costs order or a preparation time order (as appropriate) , on its own initiative or on the application of a party or, in respect of a costs order under rule 73 (1) (b), a witness who has attended all has been ordered to attend to give oral evidence at a hearing.

(2) The Tribunal must consider making a costs order or a preparation time would where it considers that and shall consider whether to do so, where it considers that: (a) a party (or that party’s representative) … has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that proceedings, or part of it, have been conducted; or (b) any claim, response or reply had no reasonable prospect of success, or, (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before that hearing begins.

(3) the Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.

[5]A costs order and a preparation time order may not both be made in favour of the same party in the same proceedings (Rule 73 (3)).

[6]In considering whether to make a costs order there is, therefore, a twostage test; the first question being whether the conduct in question permits the Tribunal to make an order. If it does, then the Tribunal will consider whether it is appropriate to exercise its discretion in favour of awarding costs against a party.

[7]As I explained at the start of the hearing an award of costs is the exception, and not the rule, in the employment tribunal. The vital point in exercising the discretion is whether there was unreasonable conduct in bringing and/or conducting the case, what was unreasonable about it and what effects it had on the other party.

[8]The Claimant’s application is made on the basis that the way that the Respondent conducted the proceedings or part of the proceedings was unreasonable. History of the proceedings.

[9]I do not propose to rehearse the whole history of this litigation which has been ongoing for some 6 years. The parties have lived through it. As the Claimant submits, in this case there have been five preliminary hearings, two liability hearings, two appeal hearings and an earlier costs hearing.

[10]Essentially, however, in 2017 the Claimant brought a claim against the Respondent alleging disability discrimination, unfair constructive dismissal, harassment related to disability and unpaid wages. The Respondent contested all aspects of the case, including her status as a disabled person.

[11]After a 9-day hearing in September 2018, and a day in chambers in October 2018, the Tribunal found that the Claimant was a disabled person by reason of stress, anxiety and depression at the relevant time. In the event, however, while the Claimant won her (relatively small) wages claim, she lost the remainder of the case.

[12]The Claimant appealed that judgment and, on appeal, the Tribunal’s findings relating to constructive dismissal, and some specific complaints of harassment related to disability and breach of the duty to make reasonable adjustments were overturned. The Employment Appeal Tribunal found that the Employment Tribunal’s findings on all these three claims were wrong in law because the ET had not understood that the Respondent had failed to provide the Claimant with certain documentary evidence prior to a grievance hearing. Nonetheless, the grounds which succeeded were narrow in their factual scope and most of the findings of fact in the first Judgment remained.

[13]The case was remitted to the same Employment Tribunal who, in a second judgment, upheld one of the Claimant’s claims of failure to make reasonable adjustments. The successful claim related to the fact that the Respondent had not provided to the Claimant all the documentary evidence relating to her grievance prior to the grievance hearing. However, the Tribunal again dismissed the claims of constructive dismissal and harassment related to disability. Importantly the tribunal found that the Respondent did not deliberately withhold documents – the failure to provide the Claimant with documents had been caused by a genuine misunderstanding over who would be responsible for doing so. It was an administrative oversight and was not because of any conscious or unconscious bias against the Claimant. The Tribunal also found that there was no breach of trust and confidence and that the Respondent’s failure to make an adjustment by providing all documents relevant to the grievance in advance of the meeting was not the reason, or one of the reasons, for her resignation. They found her evidence in this respect to be inconsistent with her letter of resignation.

[14]At a remedy hearing in May 2021 the Claimant was awarded £5,000 for injury to feelings, together with interest. (The figure for interest was then increased following a successful application for reconsideration.)

[15]Both in the liability hearings and at the remedy hearing the Tribunal did not accept much of the Claimant’s evidence. In the remedy judgment, while the Tribunal found that the Claimant genuinely held the views or perceptions put forward, it also found that her memory was unreliable “due to her negative perception of the Respondent arising from the events which took place at school” and because of other matters which the tribunal found were not acts of discrimination.

[16]On 16 July 2021 the Respondent made a costs application against the Claimant and on 21 July 2021 the Claimant then made her costs application in response. She told the Tribunal that after the second hearing she had been willing to let matters go, even though she was not happy with all the Tribunal’s findings, but when the Respondent made their costs application, she felt it necessary to make hers.

[17]In the event the Respondent withdrew its costs application in November 2022. At a hearing (before EJ Elgot and two non-legal members by CVP) on 15 December 2022 the Claimant’s costs application was struck out for failure to comply with orders. It is recorded that the Claimant had failed to provide documents or a witness statement as ordered and the “limited documents” she had sent in support of her application were unusable.

[18]The Claimant submitted a second appeal to the EAT, against the striking out of her costs application. That appeal was also successful. Amongst other things, the EAT found that the ET had failed to make any findings about whether the failures were wilful or deliberate and had not considered taking other courses of action less draconian than a strike out. It found that the Tribunal had failed to engage with the Claimant’s requests for accommodations in preparing for the hearing.

[19]This has led to the case being remitted back to the employment tribunal and this hearing. As I said I had a bundle and heard submissions from both parties, the Claimant submissions taking up the bulk of the time during the hearing. Basis of the Claimant’s application.

[20]I turn now to look at the four headings under which the Claimant seeks costs or a preparation time order against the Respondent.

[21]In her submission she focuses on four 4 separate matters in respect of which she says the Respondent was unreasonable. These area. their failure to concede that she was a disabled person at the relevant time;

b. the failure to agree amendments to the list of issues which, she says, arose from typographical error;

c. a failure to make proper disclosure; and

d. the Respondent’s application for costs (which was subsequently withdrawn).

[22]Failure to concede disability. The Claimant’s disability, as pleaded, is stress, anxiety and depression. The Claimant says that she provided medical evidence and a disability impact statement in accordance with the Tribunal orders but the Respondent would not concede that she was a disabled person when they ought to have done.

[23]The first Tribunal found, not only that the Claimant was a disabled person, but also that the Respondent had constructive knowledge of that fact. The Tribunal was critical of the Respondent for not conceding the issue of disability earlier as they did not cross examine the Claimant on her impact statement.

[24]In its reasons the Tribunal commented that “From our findings of fact, we had no hesitation in concluding that the Claimant was a disabled person, within section 6 and schedule one of the Equality Act 2010, at all material times. It is regrettable that the Respondent refused to concede this issue, particularly after her oral evidence on this issue went unchallenged. This wasted time and caused at least some extra stress for the claimant. Also, it added to the impression that the Respondent had little understanding on the definition of disabled person within the Equality Act 2010.

[25]The judgment is also critical of the Respondent for relying on reports from occupational health advisors (and treating those as expert medical evidence) rather than making its own factual judgment by (i) properly directing itself to consider for themselves whether the Claimant was a disabled person(ii) by asking factually practical questions of the Claimant. The Tribunal was also critical of the Respondent for failing to obtain her GP records during her employment to determine for themselves whether she might be a disabled person.

[26]The Claimant says that she provided documents as ordered, had amended her impact statement as necessary to clarify matters, that the failure to concede caused her stress and that providing confidential medical records for a public hearing was intrusive.

[27]Mr Williams for the Respondent concedes that the tribunal was critical but submits that it was not unreasonable to put the Claimant to proof as to her disability. He submits that, in any event, the additional work occasioned by their failure to concede disability was limited. There was no separate preliminary hearing to determine disability status, and the issue of disability occupied a modest amount of the final hearing time. He submits that whether stress and anxiety amount to a disability is not a straightforward issue for an employer to concede.

[28]Failing to agree a list of issues which arose from a typographical error. I was not provided with the particulars of claim in the bundle for the hearing, but it appears that the Claimant had provided a summary of the acts upon which she relied at paragraph 73 of the claim form. Paragraph 73 cross referenced to the facts alleged earlier in the particulars. However, the cross referencing was wrong.

[29]The amended ground of defence dealt with the paragraphs of the ET1 which the Claimant had referred to in her paragraph 73. This meant that they were responding to the wrong allegations. The draft list of issues was prepared by the Respondent on the same basis. When the error was identified the Claimant sought to amend the paragraph numbers to reflect the correct ones in the preceding grounds of claim. (EJ Foxwell records that the Claimant only noticed the error when she received the draft list of issues from the Respondent.) However, the Respondent told the Claimant that it could not agree to amending her claim without permission from the tribunal given that a further amended defence would be required and the order for filing the agreed list of issues would need a variation. At the Preliminary Hearing to deal with the issue they maintained that stance.

[30]Employment Judge Foxwell who presided over that preliminary hearing was critical of the Respondent for not conceding those amendments which were plainly a typographical error. The Claimant relies on this as unreasonable conduct of the proceedings which added to her stress.

[31]For the Respondent Mr Williams submits that this objection did not add anything to the length of the proceedings. a preliminary hearing was necessary to consider a more substantive amendment application made by the Claimant to add a new cause of action (the wages claim) out of time.

[32]Failures of disclosure The Claimant spent a long time during the hearing y dealing with the Respondent’s failure to disclose. In particular she is aggrieved that a document “the pay appeal meeting minutes” was not disclosed to her until the second day of the full merits hearing. She submits that this deprived her of the opportunity to ask four of the Respondent’s witnesses (including the head teacher Ms Stalham) about it. She contends that the failure to disclose this document at the proper time must have been deliberate because Ms Stalham had provided the pay appeal minutes to Ms Wiggs for the grievance hearing and so the suggestion that they had conducted extensive searches for further documents must be false.

[33]As I explained to the Claimant, I was unable to make any findings of fact as to whether the failure was deliberate because this was not finding made by the tribunal hearing the case. However, in the reasons produced after the second liability hearing it is recorded that the Claimant had received the Pay Appeal Outcome for the grievance and the pay appeal meeting minutes did not add anything more than minor in substance to the pay appeal outcome letter. If the employment tribunal at the second liability hearing had considered that the Claimant had been significantly prejudiced by this late disclosure it would have said so. The Claimant appeared to be more concerned by the fact of the lateness of the disclosure rather than the significance of the document itself in establishing her claims.

[34]The Claimant also complains more generally about late disclosure and the need for her to chase documents. She complains about the fact that the Respondent changed their list of documents and that three documents which were, in her view, “central” to her claim were removed from that list. She refers to the fact that the ICO upheld her complaint about the way the Respondent dealt with her data subject access request.

[35]The Respondent’s Application for costs. The Claimant submits that the Respondent chose not to make an application for costs after she had lost her discrimination claim (having been awarded just under £300 for her wages claim only) but only chose to make an application for costs after she had won her failure to make reasonable adjustments claim following the appeal.

[36]The Claimant’s case is that the Respondent could not genuinely have believed they were entitled to costs when she had won a part of her claim and so the application was made in bad faith.

[37]She submits that it was unreasonable of the Respondent to accuse her of being unreasonable when she refused to accept their offer and that the ultimate award was more than that.

[38]It was unreasonable of them to refer to without prejudice correspondence in their application for costs which caused her to have to get legal advice to establish the impermissibility of this course of action.

[39]It was also unreasonable of them to suggest that the Claimant failed to engage with settlement negotiations when that was not the case.

[40]She submits that the Respondent’s costs application clearly had no reasonable prospect of success and as such she should be awarded costs against them on the basis that their conduct in making that application was wholly unreasonable.

Conclusions

[41]As I said, in determining a costs application, I have to apply a two-stage test. Does the conduct complained of meet the threshold in Rule 74(2)). If so, a Tribunal must consider, but does not have to, make a costs order.

[42]The Claimant makes some good points. She has prepared carefully and thoroughly for today’s hearing and was articulate and helpful in explaining her points. However, looking at an application for costs it is important not to lose sight of the totality of the circumstances. It is important to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the Respondent conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects if had.

[43]The Ross Tribunal was critical of the Respondent for failing to concede disability, and Employment Judge Foxwell was critical of it for resisting a part of the Claimant’s amendment application. It was improper to make a costs application based on without prejudice correspondence.

[44]However, I have to look at this in context. This was a long case listed for 10 days. The final agreed list of issues records some 28 matters alleged cumulatively to amount to breach of trust and confidence, 14 allegations of harassment related to disability. In relation to the failure to make reasonable adjustments claim there are five pleaded PCPs and four pleaded disadvantages. It was a wide-ranging claim in which, for reasons set out in the tribunal’s judgment, the Claimant has ultimately succeeded only in two small parts(i) the wages act claim and

(ii) one instance of failure to make reasonable adjustments. Looked at in the round she has not been successful.

[45]Also, it is clear from the Employment Tribunal’s reasons that although the Claimant gave an account of events that she honestly believed to be true, she was unreliable in key places. The Tribunal made clear that in evidence it preferred the evidence of the Respondent’s witnesses to the that of the Claimant and it found that she was oversensitive to certain management actions towards her.

[46]A criticism of a party’s conduct by the Tribunal does not necessarily lead to an award of costs. As I was not at the liability hearings I cannot say exactly how much additional time was added to the hearing by the Respondent’s failure to concede disability but, looked at in the round, it was unlikely to have been significant; and more time will have been spent dealing with aspects of the Claimant’s case which were found not to have occurred as the Claimant described them.

[47]While EJ Foxwell was critical of the Respondent's failure to agree the amendment application it did not add any significant additional work for the Claimant (at least in the context of the whole proceedings), and the problem had been caused (albeit inadvertently) by the Claimant herself. Time was, however, spent considering a substantive amendment application, namely the Claimant’s application to add a wages claim out of time.

[48]It is also, unfortunately, often the case that pinning down the list of issues is difficult. As Mr Williams submits, even on the first day of the liability hearing there was a discussion of the issues, two of which were withdrawn by the Claimant at that time. This demonstrates that costs applications should not be used to minutely critique every detailed action – but should be looked at in a broader way.

[49]As for disclosure I have no doubt that the Claimant was stressed by the need to chase disclosure but, as I understand it the bundle ran to 1834 pages, (27) and there was undoubtedly a very great disclosure exercise. It is not uncommon in lengthy cases with significant numbers of issues as this case for there to be disagreements as to the extent of relevant disclosure. It was at times not clear exactly what the Claimant was requesting.

[50]There is nothing that I have heard that suggests that, with the exception of the pay appeal minutes, by the time of the hearing the Claimant had not had all relevant documents. It is often the case that in litigation involving a lengthy list of issues, spanning a period of some time, issues of disclosure will arise, and if there was any serious disadvantage to the Claimant that could have been raised at the full merits hearing

[51]There were criticisms of the Claimant as well as of the Respondent. From time to time the Claimant herself missed deadlines. The Employment Tribunal also found that the Claimant’s statement for the second hearing was long and discursive, and parts were simply not relevant. This is not a criticism, she is a litigant in person- but a bit of give-and-take is required in the conduct of litigation.

[52]As I have said, not every poor move should result in an application for costs, and something exceptional is required before an award of costs is made.

[53]I do not consider that the Respondent’s actions (save perhaps in making its costs application, which was in any event withdrawn) crossed the threshold for unreasonable conduct. However, even if I am wrong and all of the above are unreasonable conduct I would decline to make a costs or preparation time order in favour of the Claimant.

[54]A costs application has to be looked at in the context of the whole litigation. It remains the case that the Claimant lost the majority of her claim. It is not appropriate to award costs against the Respondent