Ms P Oliver v St Mungos Community Housing Association Ltd and Others: 3200817/2023

EMPLOYMENT TRIBUNALS

Case No 3200817/2023

Between

Ms P OliverClaimant

St Mungos Community Housing Association Ltd and OthersRespondent

Before

Employment Judge Yale

Mr K. McNerney (instructed by Counsel) for claimant

Date 24 January 2025

JUDGMENT

[1]The claimant’s claim of direct discrimination against the third respondent is dismissed.

[2]The claimant’s claims against the first and second respondents shall proceed to a final hearing.

[1]The claimant’s claim for victimisation (section 27 Equality Act 2010) about the termination of her placement with the respondent succeeds.

[2]The following claims are unsuccessful and are dismissed:2.1 direct disability discrimination (section 13 Equality Act 2010);

2.2 discrimination arising from a disability (section 15 Equality Act 2010);

2.3 failure to make reasonable adjustments (section 21 Equality Act 2010); and

2.4 victimisation (section 27 Equality Act 2010) about comments made to the effect that the claimant was ‘hard to work with, a bully and she could not manage the workload’. JUDGMENT having been given orally at the hearing on 24 January 2025 and sent to the parties and reasons having been requested in accordance with Rule 60 of the Employment Tribunal Rules of Procedure 2024.

REASONS

[1]The claimant brought claims for disability discrimination. Initially her claims were pursued against three respondents: 1.1. St Mungo Community Housing Association – first respondent 1.2. 360 Security and Support Services Limited – second respondent 1.3. AV Support Services Limited – third respondent

[2]The claimant’s claims were for: 2.1. failure to make reasonable adjustments; 2.2. discrimination arising from a disability; 2.3. direct discrimination on the grounds of disability; and 2.4. victimisation.

[3]The issues in the claimant’s claims were initially clarified at a preliminary hearing on 6 February 2024. At a preliminary hearing on 20 and 21 June 2024 the following decisions were made by Employment Judge Yale: 3.1. The claimant did have a disability with the meaning of the Equality Act 2010. 3.2. The first and second respondents had knowledge of the disability. The third respondent did not have knowledge and as a consequence the claim against the third respondent was dismissed. 3.3. The claimant was employed by the third respondent within the meaning of the Equality Act 2010. The second and third respondent were potentially liable for any discrimination under section 41 Equality Act 2010 (contract workers).

[4]The list of issues in the substantive claims remained the same as had been identified at the first preliminary hearing. The case all relates to events on 28 November 2022 and the days after, culminating in the termination of the arrangement whereby the claimant worked for the first respondent as an agency worker, via the second and third respondents.

[5]The list of issues identified the issues in the claims against the first respondent and the issues in the claims against the second respondent. Before this hearing the claims against the second respondent were settled. The claims and issues, as identified at the preliminary hearing, against the first respondent are as follows.

[6]For the failure to make reasonable adjustments claim the claimant said there were the following three PCPs: 6.1. subjecting the claimant to an increased workload; 6.2. requiring the claimant to work with an inexperienced agency worker; and/or 6.3. a lack of support from management.

[7]The claimant said these put her at a disadvantage. In her ET1 she stated this was “a substantial and adverse impact on her health leaving her feeling overwhelmed and resulted in her having to return home on 28 November 2022”. The adjustment she says would have been reasonable was ensuring she was working with someone who was suitably qualified and/or experienced.

[8]The claimant’s claims for direct discrimination, discrimination arising from a disability and victimisation are all about the decision to terminate her engagement with the respondent. Within the list of issues this event is described differently under each head of claim. These are as follows: 8.1. discrimination arising from a disability – “does the claimant’s dismissal amount to unfavourable treatment”; 8.2. direct discrimination – “termination of her placement with the first respondent constitutes less favourable treatment”; and 8.3. victimisation – “on 30 November 2022 terminate the claimant’s placement”.

[9]The claims all relate to the same circumstances. On 30 November 2022 the claimant’s assignment to work for the first respondent was terminated. The claimant claims that this is alternatively direct discrimination, discrimination arising from a disability and/or victimisation.

[10]The first respondent’s position is that it did not dismiss the claimant and the decision was made by the second respondent. Therefore, an issue for us to determine is whether the first respondent terminated the claimant’s assignment to work for them.

[11]For the purposes of the claim for discrimination arising from a disability, the “something” the claimant relies on is her request for reasonable adjustments.

[12]For the purposes of the victimisation claim, the claimant relies on emails of 28 November 2022 sent at 3.24pm and 5.39pm to Ricardo Lopez and Sam Green alleging that the first respondent had contravened the Equality Act 2010.

[13]The claimant pursued an additional claim for victimisation. The other detriment she says she was subjected to by the first respondent was: “On or around 30 November 2022, make comments to the effect that the claimant was ‘hard to work with, a bully and she could not manage the workload’”. Procedure, documents, evidence and adjustments

[14]The final hearing only dealt with the claims against the first respondent. Within the remainder of this judgment the first respondent is referred to as “the respondent”. The other respondents are referred to by their names.

[15]Both parties had been represented throughout proceedings. The claimant stopped being represented shortly before this hearing and at the final hearing the claimant represented herself. The respondent was represented by counsel.

[16]A bundle of documents had been prepared. During the hearing the claimant provided some additional documents. These were emails between her manager, Sam Green, and his manager, Ricardo Lopez. These emails were from the time and show Mr Lopez forwarding emails from the claimant to Mr Green. These documents were clearly relevant to the issues we needed to determine and their omission from the bundle appeared to be due to an oversight.

[17]The claimant had prepared a witness statement and was cross-examined. The respondent called Sam Green as a witness. He was a manager with the respondent and had managed the claimant at the relevant time. Mr Green had prepared a witness statement and attended the hearing so could be cross-examined. We were also provided with a witness statement by Kuwayne Cain, the managing director of the second respondent. As the case against the second respondent had resolved Mr Cain did not attend the hearing so could not be cross-examined. As such we gave limited weight to this evidence.

[18]The claimant has dyslexia, which is the condition the claimant relied on as being a disability for the purposes of her claim. Within the bundle was the claimant’s impact statement which set out in some detail the difficulties she has as a result of her dyslexia. This includes difficulties with communication, concentration and working memory.

[19]Due to her dyslexia the claimant struggled with aspects of the hearing, particularly given that she was representing herself by that stage. We made adjustments during the course of the hearing, such as allowing additional breaks when the claimant needed them.

[20]The claimant had particular difficulty as a litigant in person with crossexamining the respondent’s witness. As an adjustment we permitted the claimant to submit her questions to the Tribunal in writing. The Tribunal then asked the respondent’s witnesses the questions on the claimant’s behalf. We sought to read out the questions as written by the claimant. On occasions we sought clarification from the claimant about what she was trying to ask and sometimes reformulated questions to make sure they were clear. To ensure that the hearing was managed efficiently we also sought clarity so the questions remained focussed on the relevant issues and duplication was minimised.

Findings of fact

[21]The respondent is a not-for-profit housing association. It provides various services related to homelessness and supporting homeless people.

[22]The claimant started to work for the respondent in the Autumn of 2020. She was engaged to work for the respondent as an agency worker. The two other respondents, 360 Security and Support Services Limited and AV Support Services Limited were agencies and the claimant was engaged via them. For the purpose of this judgment we are not going to go into details about the technicalities of the relationship. It is sufficient to say that the claimant worked for the respondent and 360 Security and Support Services Limited were the party that managed the relationship between the respondent and individual agency workers. We also note, the respondent was 360 Security and Support Services Limited’s main client. They placed a significant number of agency workers in different parts of the respondent organisation.

[23]The claimant started working for the respondent by doing what she describes as concierge work. In March 2021 she moved into a support worker role.

[24]In February 2022 the claimant transferred to a project at Luke House. Luke House is a hotel where the respondent provides temporary accommodation to people it supports. The hotel itself is managed by a different organisation who deal with the building and maintenance. That organisation has a team present on site 24 hours a day. The respondent provides support services to the individuals staying there.

[25]When the claimant moved to Luke House she continued to work via the agency. We also heard that all project workers the respondent engaged at Luke House were agency staff and locums. The claimant and other project workers were managed by Sam Green. Mr Green managed Luke House and another project.

[26]Mr Green explained that there was a high turnover of staff and there would often be new staff. This meant that experienced agency workers would have to induct new agency workers and work alongside workers who were not experienced from time to time.

[27]The claimant has dyslexia. Mr Green was aware of this. He said he made adjustments for the claimant, such as allowing additional breaks and providing her with support with written work. We accepted that this was the case. The claimant confirmed she had no difficulty for the majority of the time that she worked at Luke House.

[28]Mr Green generally accepted that there had not been any difficulties involving the claimant during her time at Luke House. He did give an example of an incident that occurred in August 2022. A disagreement occurred between the claimant and another worker which escalated. Mr Green says this is because the claimant spoke to a colleague disrespectfully in front of clients. The claimant says that the colleague was rude to her and she complained about this to Mr Green. Mr Green says that at the time he told the claimant that poor conduct could lead to an assignment being terminated. Mr Green did not report this incident to 360 Security and Support Services Limited at the time as he did not want to cause any difficulties for the claimant. Events of 28-30 November 2022

[29]The claimant was scheduled to work on 28 November 2022. She started at 8am. A new agency worker who came from a different agency, Corus, was scheduled to work alongside the claimant. The claimant was required to provide an induction to the new agency worker. The claimant had inducted new workers before without difficulty. On this occasion the claimant said that inducting the new worker was difficult for her. She explained that usually when a new person was inducted there would be two experienced project workers on shift. On 28 November it was just the claimant and the new worker. The claimant also found this agency worker difficult to work with because she felt he was particularly inexperienced.

[30]Mr Green said in evidence that there had been a third person due to work that day but they were unexpectedly absent. He did not arrange for another agency worker to provide emergency cover. No evidence was provided by the respondent showing a third person had been booked originally, so we could not be confident that this was the case. However, we accepted that usually there would be three people working on a shift so it was understaffed for there to only be two workers. It seems likely that it was unforeseen that there would only be two people working that day and three were originally due to work.

[31]This agency worker was 19 years old. The claimant has said that this worker was lacking in experience. The claimant also said that she found working with this person difficult as her workload increased due to being short staffed and she felt overwhelmed. She felt this new worker was unable to do anything useful. Therefore, she felt that she was in effect working alone and she was unable to take any breaks. We accepted that Mr Green believed that the new worker was sufficiently experienced as that is what he had been told by the agency. However, it was also the case that the claimant did not feel he was sufficiently experienced and as a result she genuinely struggled on the day.

[32]At 10.15am Mr Green emailed the respondent’s IT service desk about log in details for the new worker. At 10.44am he then emailed the claimant asking if she was ok, and indicating that he was on the way to the hotel. In this email Mr Green also noted that the claimant had been working flat out during busy periods.

[33]At 12.51 the claimant emailed Mr Green to say she was overwhelmed. In this email she lists certain work she needed to do and said that it was hard due to her dyslexia. She also stated she felt that she was working alone and training a new member of staff. She asked to go home once Mr Green arrived on site.

[34]Mr Green responded shortly after. His email is sympathetic and supportive and he says that he will be there by 2pm and that she can go if she needs as her “wellbeing’s the most important”.

[35]The claimant responded at 1.31pm. This was a short email, but in this the claimant alleged that the new worker was the nephew of the agency owner. The claimant explained in evidence she thought this was the case because he referred to someone as his ‘aunty’.

[36]We accepted that the Claimant found that day very difficult. This was an exceptional day in some respects. The claimant had been busy before but had managed. This day she did not manage. This was because of being the only person on shift with one new person who needed induction. She found these challenges particularly difficult and overwhelming due to her dyslexia. This was not really disputed by the respondent, although Mr Green did maintain that in practice the claimant could have taken breaks and delegated more to the new agency worker.

[37]Mr Green arrived sometime around 2pm and spoke with the claimant. Exactly what was discussed then is disputed.

[38]The claimant says that she explained the pressure she had been under and the difficulties she had with her dyslexia. She says she said that she told Mr Green she felt unsupported. She says she called the agency, 360 Security and Support Services Limited, with Mr Green present, to say that she was leaving her shift.

[39]Mr Green’s account of this discussion is different. The key points he makes are as follows: 39.1. The claimant referred to the agency worker being young. 39.2. She was disparaging about the agency worker and what he was able to do. 39.3. The claimant said that she said she could find better paid work elsewhere and had been approached already about this. 39.4. The claimant said she would not work with this agency worker. In evidence Mr Green said that the claimant wanted him to ensure that only agency workers she approved of were on the rota when she worked. 39.5. She also said the agency worker was related to the agency director. 39.6. Mr Green also said the claimant had mentioned these issues with the hotel property management, which was a different company.

[40]From the evidence we heard from the claimant and Mr Green, we have concluded that the conversation included a number of different matters. Our conclusions about this conversation are as follows: 40.1. The claimant did refer to the agency worker’s age. The claimant explained that due to her dyslexia she cannot recall names so she would have described the claimant as young as a way to refer to him. On this basis we accept the claimant did refer to his age, probably repeatedly. 40.2. The claimant’s own evidence about the worker was he was inexperienced and could not do basic things. We find it likely she would have made comments about this during the conversation. 40.3. The claimant denied she had said to Mr Green she had offers of work elsewhere. However, later that day the claimant did say this in an email to Ricardo Lopez. Also, Mr Green reported this comment in an email the following day. We concluded it was likely that Mr Green was reporting what the claimant had said, so she did say something along these lines during the conversation. 40.4. There was probably a discussion between the claimant and Mr Green about other agency workers and their level of experience. However, we find it unlikely that the claimant sought to dictate which agency workers were engaged. The claimant did not want to be left to work with new inexperienced workers again and in the circumstances it would be understandable for her to try and explain her needs. It is also likely that the claimant may not have expressed this completely clearly to Mr Green. 40.5. The claimant had already said in an email to Mr Green that the agency worker was a family member. She subsequently acknowledged that she may have been mistaken about his. However, she said that the agency worker had referred to someone at the agency as ‘aunty’ and she was reporting what she understood he had said to her. We concluded it is likely that this would also have been something that was discussed on the day with Mr Green. 40.6. We were not clear on what Mr Green is saying about the claimant having a discussion with the hotel staff. No other evidence was provided about that. Therefore, we cannot make any conclusive findings about this part of the conversation.

[41]We broadly preferred Mr Green’s account of the conversation on 28 November. We accept that more was discussed than just how difficult the day was and support that the claimant needed. We accepted the claimant did suggest she had been offered work elsewhere. The claimant did refer to the agency worker’s age and she did suggest that the agency worker was appointed due to a family relationship.

[42]The claimant went home early. Mr Green says that he told the claimant to take the next shift off and contact him if she’d come in. The claimant says that she said that told Mr Green she would be in on the 30 November 2022, which was her next scheduled shift. We accept it is likely Mr Green suggested the claimant took time off in the circumstances. However, we also accept that this was not the claimant’s recollection of what was said. The claimant and Mr Green were left with differing understandings of what was agreed about what would happen next in terms of the claimant working.

[43]Later on 28 November 2022 the claimant sent an email to Ricardo Lopez, the respondent’s Regional Head and Mr Green’s line manager. In this the claimant says she felt like she was “being set up to fail lately”. She referred to her disability and said “I’ve explained my disability needs to Sam time and time again. We’ve had a chat but that still doesn’t take away the fact it happened and can keep happening.”

[44]The claimant sent a further email to Mr Lopez the same day. Attached to this was a document setting out information about supporting dyslexia at work. The claimant explains to Mr Lopez that she is providing the information to help him understand the issues she had that day and that she was overwhelmed. She also says “I hope you don’t think I’m asking for much, I’m just asking to be understood.”

[45]In this email the claimant sets out more detail about the other difficulties she had that day. She refers to speaking to Mr Green and she says “I have asked him for support and help, and expressed my work issues with my disability, I was hoping he would have been mindful” and refers to other people who work there who “supports me with my dyslexia unlike today.”

[46]The claimant also referred to having been “scouted many time by the other services”. In this email the claimant also says that the agency worker’s aunt worked for the other agency and “I get the politics”.

[47]In his witness evidence Mr Green said he spoke with the agency, 360 Security and Support Services Limited, that day. We concluded this was not the case. Mr Green sent an email to Marlon Smith, who worked for the agency, on 29 November 2022 at 10.13am. This email reads as if it is the first time Mr Green was in contact with Mr Smith about what had had happened. The claimant has said that she contacted the agency on 28 November 2022 to inform them she was leaving for the day when Mr Green was present. Mr Green denied this, but we concluded that this account was more plausible, given the way Mr Green’s email of 29 November was written.

[48]Mr Green has said that the other agency worker complained about the claimant to his agency, Corus. Mr Green provided no details about how he found out about this. We were not provided with copies of any emails and Mr Green did not provide any other evidence. For example, there are no notes of any telephone conversations and there is no clear account of this in Mr Green’s witness evidence. However, we have no reason to doubt that there was some form of complaint made and Mr Green probably discussed the situation with the agency worker or Corus. It is consistent with the fact that the shift had been difficult. Mr Green said that the agency worker did not want to make a formal complaint and, again, we have no reason to doubt this. We accept that Mr Green genuinely understood the other agency worker was not happy about what had happened. However, we also note we have no evidence about the nature of the complaint or what was actually said about the claimant.

[49]Mr Green emailed Mr Smith on the morning of 29 November 2022. This email reflects what Mr Green says was discussed with the claimant the previous day. He explains about the claimant’s comments about the other agency worker’s age, the claimant speaking to the hotel management and her being offered alternative work. Within this email Mr Green also reports that the claimant had said that “putting her under pressure to do tasks is discriminating against her disability (dyslexia)”.

[50]Mr Green concludes by saying “could you give me a call please Marlon, I feel like we’ve had quite an up and down period with Pru and managing team dynamics (there’s been some allegations of bullying against her) and it feels like that relationship is coming to an end.”

[51]Shortly after this, at 11.10am Mr Lopez emailed Mr Green, forwarding the claimant’s emails from the day before. Mr Lopez suggested they speak, to which Mr Green responded he was free then. We were unclear if they did actually speak but thought it was likely they did. Mr Green did not provide any evidence of a conversation in his witness statement. In his statement he had also said he did not see the emails the claimant sent to Mr Lopez, though the documentary evidence clearly show he had seen the emails at the time and in oral evidence he accepted that he must have been mistaken. When asked about the emails in cross examination Mr Green suggested that any discussion was just due to Mr Lopez being his line manager but was unable to recall what was said.

[52]On 29 November 2022 Mr Green also emailed Daryle Fortescue, the respondent’s Service Development Manager in the region. We understood Mr Fortescue dealt with wider resourcing issues, including agency staff. At 12.13pm the claimant sent an email to Mr Fortescue about complications with the rota and issues with various agency staff. He said the following about the claimant: “Pru has had some quite problematic behaviours including very unhelpful comments to colleagues and partner services about changes we looked at and unfortunately we’ll need to cancel her bookings, I’ll have to discuss this with her and arrange some kind of notice period with a new worker overlapping so they can be inducted.”

[53]There followed a couple of additional emails between Mr Green and Mr Fortescue about general resourcing issues in the various services. Mr Green indicated a preference for using agency workers. One reason he gave was “if it’s agency we have some flexibility where if someone’s not a right fit it’s easier to move them on…”

[54]Later on 29 November 2022 Mr Green arranged for cover for the claimant’s shift at Luke House on 30 November 2022. He did not contact the claimant directly about this.

[55]On 30 Nov 2022 the claimant attended what she believed to be her next shift. On arriving there were three project workers there already. At some point the claimant was forwarded an email dated 29 November sent to others indicating that there was cover in place for 30 November 2022. The claimant had not originally included in this correspondence. The claimant emailed Mr Lopez, forwarding this email, asking if there was a breakdown in communication.

[56]Mr Lopez responded saying that Mr Green managed the rota and he was best placed to answer her queries. The claimant responded to Mr Lopez saying she worked every Wednesday but she did not contact Mr Green about her concerns.

[57]At 1.13pm Mr Green emailed Mr Smith again. He asked again to have a call to discuss concerns about the claimant. The email is quite lengthy and Mr Green sets out various concerns. These are summarised as follows: 57.1. Mr Green mentions that the claimant seemed stressed. 57.2. Mr Green sets out concerns about the claimant being critical of the younger agency worker and her allegation about him being related to the agency worker. He also says that the claimant escalated this to senior management. We understood this related to the email that the claimant had sent to Mr Lopez. 57.3. Mr Green mentions the claimant escalating other issues to senior management, such as shift allocation. This seemed to be a new concern, but also we understood it probably related to emails the claimant sent to Mr Lopez. 57.4. Mr Green refers to wider concerns about the claimant’s management style causing problems in the teams. 57.5. Mr Green concludes by saying he would “really support redeployment”.

[58]Mr Smith responded at 5pm to say he had tried to call Mr Green and asking if he was free the next day. We have concluded that a telephone conversation between Mr Green and Mr Smith took place shortly after that and that was the only conversation that took place. This is because Mr Green emailed Mr Lopez at 5.48pm to provide an update. This email was redacted but we have concluded that it referred to a discussion with Mr Smith.

[59]In his witness evidence Mr Green has sought to paint a picture whereby he discussed different options with Mr Smith, such as giving the claimant warning or redeploying her. He has asserted that he did not want the claimant to be “moved on from St Mungo altogether”. We did not accept the account that Mr Green gave of this discussion in his witness evidence. The email to Mr Lopez was sent almost immediately after the conversation and we have concluded this is likely to be a more accurate account of events.

[60]In the email Mr Green said to Mr Lopez the following: 60.1. “I spoke to [ redacted ] about Pru, with my big concern being how she managed the situation with agency worker on Monday. … Instead of discussing with me so I can check and responded she discussed it with [ redacted ] escalated it to you – she was also very rude towards the worker. All really poor conduct based on a totally incorrect line of thinking. “ 60.2. “[redacted ] agreed redeployment is best. We discussed potential 2 week notice period. However, we felt that as Pru can be very defensive and deflect criticism quite a bit, its very possible she would leave her shift as she did on Monday. As such [ redacted ] felt it would be best to end her placement after her shift today. …… [ redacted ] confirmed this will not be with Mungos.” 60.3. “thinking about how she’s vented frustrations with [ redacted ] which is very unprofessional …. The risk of more problematic behaviours during a notice period is high”. 60.4. “I wanted to let you know as she’ll likely be in touch, as we’ve seen she likes to escalate things to you!”

[61]There is no indication from this email that other options were discussed. Our reading from this email is that a decision was made that the claimant would not return to work at Luke House at all. While redeployment was discussed as the best option it was also agreed between Mr Green and Mr Smith that the claimant would not be placed in another role with the respondent. This makes it clear that her assignment to work for the respondent, whether at Luke House or elsewhere in the organisation, was effectively at an end. The only variable was whether this should be immediate or if there should be a notice period first.

[62]We concluded the final decision on how to handle the situation may have been made jointly between Mr Green and Mr Smith. However, the decision that the claimant should not work at Luke House any longer, or elsewhere within the respondent, was clearly instigated and driven by Mr Green. Mr Green raised his concerns with Mr Smith and others within the respondent and set them out repeatedly. Mr Green made it clear that he did not want the claimant to continue to work at Luke House. The respondent was 360 Security and Support Service Limited’s client. 360 Security and Support Service Limited dealt with the practical implementation of the decision. This was due to the way the claimant was engaged as an agency worker via them and AV Support Services Limited, rather than being directly employed by the respondent.

[63]Mr Green did not contact the claimant any further. Neither did 360 Security and Support Services Limited contact the claimant. At around 9pm the claimant was called by Jared Fasel, who worked for AV Support Services Limited. Mr Fasel told the claimant that she was no longer working for the respondent. According to the claimant Mr Fasel told her this was because she was “hard to work with, a bully and I could not manage the workload.” We have no other evidence on this conversation so no reason not to accept the claimant’s account of this conversation. Therefore, we accept that Mr Fasel made a comment along these lines to the claimant. Mr Fasel was employed by neither the respondent nor 360 Security and Support Services Limited. He had no direct contact with the respondent. He could only relay what he understood from 360 Security and Support Services Limited, who in turn had discussed the situation with Mr Green. We accepted that Mr Green did not describe the claimant in this way, but he had said to Mr Smith that there had been allegations of bullying by others.

[64]The claimant submitted an appeal directly to the respondent on the 1 December 2022. She says she did not get a response. We make no further findings about this process as these events occurred after the relationship between the claimant and respondent ended and the claimant brings no claims about this process.

The Law

[65]The claims the claimant pursues against the respondent are for: 65.1. Direct discrimination – section 13 Equality Act 2010 65.2. Discrimination arising from a disability – section 15 Equality Act 2010 65.3. Failure to make reasonable adjustments – section 20 and 21 Equality Act 2010 65.4. Victimisation – section 27 Equality Act 2010 Liability under the Equality Act 2010

[66]Part 5 of the Equality Act 2010 sets out who can be liable under the equality act in the context of work.

[67]Section 41 Equality Act 2010 states: “(1) A principal must not discriminate against a contract worker –(a) as to the terms on which the principal allows the worker to do the work;

(b) by not allowing the worker to do, or to continue to do, the work;

(c) in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service;

(d) by subjecting the worker to any other detriment. […..] (3) A principal must not victimise a contract worker – (a) as to the terms on which the principal allows the worker to do the work; (b) by not allowing the worker to do, or to continue to do, the work; (c) in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service; (d) by subjecting the worker to any other detriment.”

[68]The relationship of principal and contract worker covers the situation where an agency worker is employed by an agency but works for another organisation. Direct discrimination – section 13 Equality Act 2010

[69]Direct discrimination takes place where a person treats the claimant less favourably because of race than that person treats or would treat others. Under s23(1) Equality Act 2010, when a comparison is made, there must be no material difference between the circumstances relating to each case. Whether treatment is less favourable is a matter of fact for the Tribunal to determine. The test applied is objective, i.e. it is not just a matter of a claimant believing any treatment is less favourable.

[70]Decisions are frequently reached for more than one reason. Provided the protected characteristic or, in a victimisation claim, the protected act, had a significant influence on the outcome, discrimination is made out. (Nagarajan v London Regional Transport

[1999] IRLR 572

, HL)

[71]Section 136 of the Equality Act 2010 sets out the burden of proof. Under s136, if there are facts from which a tribunal could decide, in the absence of any other explanation, that a person has contravened the provision concerned, the tribunal must hold that the contravention occurred, unless that person can show that he or she did not contravene the provision.

[72]Accordingly, where a claimant establishes facts from which discrimination could be inferred then the burden of proving that the treatment was in no sense whatsoever unlawful passes to the respondent. Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong

[2005] EWCA Civ 142

;

[2005] IRLR 258

. Once the burden of proof has shifted, it is for the respondent to prove that they did not commit the act of discrimination. To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive. Since the facts necessary to prove an explanation would normally be in the possession of the respondents, a tribunal would normally expect cogent evidence to discharge that burden of proof.

[73]The Court of Appeal in Madarassy v Nomura International plc

[2007] EWCA Civ 33

;

[2007] IRLR 246

, a case brought under the then Sex Discrimination Act 1975, states: ‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.’

[74]Inferences can only be drawn from established facts and cannot be drawn speculatively or on the basis of a gut reaction or ‘mere intuitive hunch’ (Chapman v Simon

[1994] IRLR 124

) or from ‘thin air’ (Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

). Discrimination also cannot be inferred only from unfair or unreasonable conduct (Glasgow City Council v Zafar

[1998] ICR 120

[75]This means that to succeed with her claim for direct discrimination the claimant must first show that she has been treated less favourably than others in the same circumstances. The claimant must also have shown facts from which we can infer that the reason for the less favourable treatment may have been due to the claimant’s disability. Only after this does the burden shift to the respondent who must show that there is a different nondiscriminatory reason for the treatment, that it is in no way due to the claimant’s disability. Discrimination arising from a disability – section 15

[76]Section 15 of the Equality Act 2010 provides:(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

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

[77]In Pnaiser v NHS England

[2016] IRLR 170

, the EAT provided guidance as to the correct approach to a claim as follows:(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.

(b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a section 15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.

(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport

[1999] IRLR 572

. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises…

(d) The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B’s disability”. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of section 15 of the Act…the statutory purpose which appears from the wording of section 15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.

(e) For example, in Land Registry v Houghton

UKEAT/0149/14

a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The Tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.

(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.

(g) Miss Jeram argued that “a subjective approach infects the whole of section 15” by virtue of the requirement of knowledge in section 15(2) so that there must be, as she put it, ‘discriminatory motivation’ and the alleged discriminator must know that the ‘something’ that causes the treatment arises in consequence of disability. She relied on paragraphs 26 to 34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her subjection, and indeed paragraph 34 highlights the difference between the two stages – the ‘because of’ stage involving A’s explanation for the treatment (and conscious or unconscious reasons for it) and the ‘something arising in consequence’ stage involving consideration of whether (as a matter of fact rather than belief) the ‘something’ was a consequence of the disability.

(h) Moreover, the statutory language of section 15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of section 15 would be substantially restricted on Miss Jeram’s construction, and there would be little or no difference between a direct disability discrimination claim under section 13 and a discrimination arising from disability claim under section 15.

(i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a Tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant’s disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to ‘something’ that caused the unfavourable treatment. “

[78]The correct approach to a claim was summarised by the Court of Appeal in City of York Council v Grosset

[2018] IRLR 746

. “36. On its proper construction, section 15(1)(a) requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) "something"? and

(ii) did that "something" arise in consequence of B's disability. 37.The first issue involves an examination of A's state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A's attitude to the relevant "something" ... 38.The second issue is an objective matter, whether there is a causal link between B's disability and the relevant "something" ….”

[79]The meaning of ‘unfavourable treatment’ was considered by the Supreme Court in Trustees of Swansea University Pension and Assurance Scheme v Williams

[2019] ICR 230

(at para 27): ‘… in most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in section 15 and analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. While the passages in the Code of Practice to which she draws attention cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section.’

[80]It is then necessary to look to the employer’s defence of justification. S.15(1)(b) EqA provides that the unfavourable treatment may be justified, if it is a proportionate means of achieving a legitimate aim. To be proportionate, the conduct in question must be both an appropriate means of achieving a legitimate aim and a reasonably necessary means of doing so (Allonby v Accrington & Rossendale College & Others

[2001] ICR 1189

CA).

[81]Justification requires the Tribunal to conduct an objective balancing exercise between the discriminatory effect and the reasonable needs of the employer (Ojutiku v Manpower Services Commission

[1982] ICR 661

and Land Registry v Houghton & Others

UKEAT/0149/14

). It will be relevant for the Tribunal to consider whether any lesser measure might have achieved the employer's legitimate aim (Naeem v Secretary of State for Justice

[2014] ICR 472

[82]The time at which justification needs to be established is the point when the unfavourable treatment occurs (Trustees of University Pension and Assurance Scheme v Williams

[2015] ICR 1197

EAT]). When the putative discriminator has not considered questions of proportionality at that time, it is likely to be more difficult for them to establish justification, although the test remains an objective one (Ministry of Justice v O'Brien [2013] UKSC). Failure to make reasonable adjustments – section 20-21 Equality Act 2010

[83]Section 20 of the Equality Act 2010 provides:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty imposes 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… The second and third requirements are not relevant for this case.

[84]Section 21 EqA 2010 provides that a failure to comply with the first requirement is a failure to comply with a duty to make reasonable adjustments, and further that A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

[85]The EAT in Environment Agency v Rowan

[2008] ICR 218

held that an employment tribunal considering a breach of the duty to make reasonable adjustments (under the then-current DDA 1995), must identify:(a) the provision, criterion or practice applied by or on behalf of the employer; or

(b) the physical feature of premises occupied by the employer;

(d) the nature and extent of the substantial disadvantage suffered by the claimant. This guidance continues to apply to claims brought under s. 20 – 21 EqA 2010 (see e.g. Secretary of State for Work and Pensions (Jobcentre Plus) v Higgins

[2014] ICR 341

at [29] – [30], where the EAT also noted that it is necessary for the ET to identify the “step” or “steps” that the employer should have to take to avoid the disadvantage).

[86]The Court of Appeal in Ishola v Transport for London

[2020] ICR 1204

has given detailed guidance as to the meaning of the phrase “provision, criterion or practice”: “35. The words "provision, criterion or practice" are not terms of art, but are ordinary English words. I accept that they are broad and overlapping, and in light of the object of the legislation, not to be narrowly construed or unjustifiably limited in their application. I also bear in mind the statement in the Statutory Code of Practice that the phrase PCP should be construed widely. However, it is significant that Parliament chose to define claims based on reasonable adjustment and indirect discrimination by reference to these particular words, and did not use the words "act" or "decision" in addition or instead. As a matter of ordinary language, I find it difficult to see what the word "practice" adds to the words if all one-off decisions and acts necessarily qualify as PCPs…36. The function of the PCP in a reasonable adjustment context is to identify what it is about the employer's management of the employee or its operation that causes substantial disadvantage to the disabled employee. The PCP serves a similar function in the context of indirect discrimination, where particular disadvantage is suffered by some and not others because of an employer's PCP. In both cases, the act of discrimination that must be justified is not the disadvantage which a claimant suffers (or adopting Mr Jones' approach, the effect or impact) but the practice, process, rule (or other PCP) under, by or in consequence of which the disadvantageous act is done. To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply. I accept of course (as Mr Jones submits) that the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply.

37. In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP.

38. In context, and having regard to the function and purpose of the PCP in the Equality Act 2010 , all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that "practice" here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or "practice" to have been applied to anyone else in fact. Something may be a practice or done "in practice" if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one.”

[87]In considering whether the application of a PCP places a disabled person at a substantial disadvantage: “one must simply ask whether the PCP puts the disabled person at a substantial disadvantage compared with a non-disabled person. The fact that they are treated equally and may both be subject to the same disadvantage when absent for the same period of time does not eliminate the disadvantage if the PCP bites harder on the disabled, or a category of them, than it does on the able bodied” Griffiths v Secretary of State for Work and Pensions

[2017] ICR 150

[88]In considering whether an employer has complied with the duty to make reasonable adjustments, the focus must be on the practical steps that can be taken to alleviate the substantial disadvantage suffered, rather than the process by which a decision is reached, or the information obtained in reaching that decision. See on this point Royal Bank of Scotland Plc v Ashton

[2011] ICR 632

, and in particular the quotation from Spence v Intype Libra Ltd at (reference to section 4A is to the predecessor Disability Discrimination Act 1995): “The nature of the reasonable steps envisaged in section 4A is that they will mitigate or prevent the disadvantages which a disabled person would otherwise suffer as a consequence of the application of some provision, criterion or practice … The duty is not an end in itself but is intended to shield the employee from the substantial disadvantage that would otherwise arise. The carrying out of an assessment or the obtaining of a medical report does not of itself mitigate or prevent or shield the employee from anything. It will make the employer better informed as to what steps, if any, will have that effect, but of itself it achieves nothing.”

[89]Pool of comparators: has there been a substantial disadvantage to the disabled person in comparison to a non-disabled comparator? Archibald v Fife Council

[2004] UKHL 32

[2004] IRLR 651

[2004] ICR 954

: the proper comparators were the other employees of the council who were not disabled, were able to carry out the essential functions of their jobs and were, therefore, not liable to be dismissed.

[90]While it is not a breach of the duty to make reasonable adjustments to fail to undertake a consultation or assessment with the employee (Tarbuck v Sainsburys Supermarkets Ltd), it is best practice so to do. The provision of managerial support or an enhanced level of supervision may, in accordance with the Code of Practice, amount to reasonable adjustments (Watkins v HSBC Bank Plc

[2018] IRLR 1015

)

[91]The adjustment contended for need not remove entirely the disadvantage; the DDA says that the adjustment should 'prevent' the PCP having the effect of placing the disabled person at a substantial disadvantage. Leeds Teaching Hospital NHS Trust v Foster UK EAT /0552/10, [2011] EqLR 1075: when considering whether an adjustment is reasonable it is sufficient for a tribunal to find that there would be 'a prospect' of the adjustment removing the disadvantage— there does not have to be a 'good' or 'real' prospect of that occurring. Cumbria Probation Board v Collingwood

[2008] All ER (D) 04

(Sep) - 'it is not a requirement in a reasonable adjustment case that the claimant prove that the suggestion made will remove the substantial disadvantage'.

[92]The test of 'reasonableness', imports an objective standard and it is not necessarily met by an employer showing that he personally believed that the making of the adjustment would be too disruptive or costly. Lincolnshire Police v Weaver

[2008] All ER (D) 291

(Mar): it is proper to examine the question not only from the perspective of a claimant, but that a tribunal must also take into account 'wider implications' including 'operational objectives' of the employer.

[93]The EHRC Code includes examples of adjustments which may be reasonable:a. making adjustments to premises

b. allocating some of the disabled person's duties to another worker

c. transferring the worker to fill an existing vacancy

d. altering the worker's hours of working or training

e. assigning the worker to a different place of work or training or arranging home working

f. allowing the worker to be absent during working or training hours for rehabilitation, assessment or treatment

g. acquiring or modifying equipment

h. providing supervision or other support. Victimisation – Section 27 Equality Act 2010

[94]Section 27 of the Equality Act 2010 provides as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

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

[95]In a victimisation claim there is no need for a comparator. The Act requires the Tribunal to determine whether the claimant had been subject to a detriment because of doing a protected act. As Lord Nicholls said in Chief Constable of the West Yorkshire Police v Khan

[2001] IRLR 830

:- “The primary objective of the victimisation provisions ... is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their statutory right or are intending to do so.”

[96]The Tribunal has to consider(1) the protected act being relied on;

(2) the detriment suffered;

(3) the reason for the detriment;

(4) any defence; and

(5) the burden of proof.

[97]To benefit from protection under the section the claimant must have done or intended to or be suspected of doing or intending to do one of the four kinds of protected acts set out in the section.

[98]An act can be protected under section 27(2)(d) even if the individual does not expressly make reference to a breach of the Equality Act 2010. However, the facts that are asserted must be capable of being a breach of the Equality Act 2010.

[99]The definition of acts done “for the purposes of or in connection with” under section 27(2)(c) is wide.

[100]The protected act must be the reason for the treatment which the claimant complains of. As with direct discrimination, it is understood that decisions are frequently reached for more than one reason. Provided the protected act, had a significant influence on the outcome, victimisation is made out. (Nagarajan v London Regional Transport

[1999] IRLR 572

, HL)

[101]What this means is the claimant must first show that she has done something which is a protected act under the Equality Act 2010. Having established a protected act the claimant must show there has been a detriment. The issue for the Tribunal to determine is whether or not there is a causal connection between the act and detriment.

Discussion and conclusions

[102]We first address the claim that there had been a failure to make reasonable adjustments. The reason for this is that this issue to a large extent forms the context for everything that occurred and chronologically those events occurred first.

[103]We then consider the claims about for direct discrimination, discrimination arising from a disability and victimization which are about the decision to terminate the claimant’s placement with the respondent.

[104]Finally there is a second victimisation claim about the comment made to the claimant when she was informed of this decision. That claim is considered separately. Failure to make reasonable adjustments

[105]This claim relates to the events of 28 November 2022. The claimant says there were the following PCPs in place: 105.1. subjecting the claimant to an increased workload; 105.2. requiring the claimant to work with an inexperienced agency worker; and 105.3. lack of support from management.

[106]Usually there would be three workers on shift at a time. On 28 November 2022 there were only two workers and the other one was new, so needed to be inducted. As a result the workload increased that day. There was no particular decision to increase the claimant’s workload. The respondent would have expected any agency worker who was on the rota on that day, or any other day with similar staffing levels, to manage the workload. The expectation to do the work while short staffed was a practice that applied to all agency workers at Luke House. Therefore, there was a PCP to subject the claimant to an increased workload.

[107]Similarly, any agency worker engaged by the respondent at Luke House would be expected to work with the other agency workers who were on shift that day. This was the case irrespective of the level of experience of the colleague on shift the same day. If there was a new or inexperienced agency worker all the other agency workers on shift that day would be required to work with them. If, as occurred on 28 November 2022, there were only two workers on shift and one was inexperienced the other would be expected to work with them, and induct them if necessary. The arrangements in this respect on 28 November 2022 were not unique to the claimant. Being required to work with an inexperienced agency worker was a PCP that applied to the claimant.

[108]We did not accept there was a PCP of a lack of support that applied. The evidence on the day was Mr Green was supportive towards the claimant. He contacted the claimant early on to check how she was, as he was aware she had been very busy. He asked the claimant if she needed anything. Mr Green also arranged to come in to Luke House after his meetings to provide some relief. We do not accept that there was a practice or policy to provide a lack of support.

[109]The claimant was placed at a disadvantage by the first 2 PCPs because she found it overwhelming to deal with that situation. It was a situation that any agency worker would have found difficult. However, the effect on the claimant of these pressures was more profound due to her dyslexia. For her this was not just a busy or stressful day. The claimant became completely overwhelmed and unable to cope.

[110]The claimant notified Mr Green of this by email at 12.31pm setting out the difficulties she was having. She also asked to leave as soon as Mr Green got there as she was not coping. Ultimately, the claimant was unable to complete her shift because of the pressure.

[111]The questions we needed to decide were: - Did the duty to make reasonable adjustments arise? - If there was a duty to make adjustments, what would have been reasonable adjustments in the circumstances? - Did the respondent fail to make those adjustments?

[112]Under section 20 schedule 8 of the Equality Act 2010 an organisation is not under a duty to make reasonable adjustments if they do not know or could not reasonably be expected to know that the person both has a disability and is likely to be placed at a specific disadvantage.

[113]The respondent knew that the claimant was dyslexic and Mr Green’s evidence was clear he had discussed this with the claimant and taken steps to assist the claimant by providing some adjustments. This included assistance with paperwork, helping the claimant to prioritise her workload and ensuring she took sufficient breaks.

[114]The situation on 28 November 2022 was different to most shifts at Luke House. From the evidence we heard, a situation involving a new starter and only having 2 people on shift was unprecedented, or at least very unusual and not a situation the claimant had been in before. Up until then Mr Green’s evidence was that the claimant was a hard worker who was good, though lacking in confidence in some areas. Any difficulties that had arisen related to communication with colleagues, not with a high workload. There was no evidence that Mr Green should have been aware that the claimant would not be able to cope with that particular scenario. On the contrary, that morning he writes to the claimant to comment that she had been working flat out and through some busy and complex periods. To our mind this shows that Mr Green believed she would be able to cope with this situation, because she had coped previously with other busy periods. She had also inducted new starters before.

[115]On that basis we have concluded that there was no duty on the respondent to make reasonable adjustments on 28 November in relation to the working arrangements on that day. The respondent did not know that this was situation was going to be so problematic for the claimant to the extent she became overwhelmed and could not cope. As they were not aware of what would happen or the problems the claimant would face, they could not make adjustments on that occasion.

[116]For completeness, we have also considered what adjustments could have been made. The adjustment the claimant has identified in her claim is that the respondent should have “Ensured she was working with someone who was suitably qualified and experienced”. The respondent has said this would not be practical.

[117]We have concluded that once the respondent knew about the difficulties the claimant faced that day it would have been a reasonable adjustment to try and take steps to manage the rota, so the claimant was not intentionally put on a rota with new staff without at least one other person on shift. However, we also accepted that due to all project workers at Luke House being agency staff it would not be possible to guarantee this would always be the case. As occurred on 28 November 2022, there may be occasions where the respondent had difficulties covering shifts or there were late cancellations by agency workers booked for that day.

[118]Essentially, had the claimant’s engagement with the respondent not terminated the respondent would have been under a duty to make reasonable adjustments as, after the events of 28 November 2022, they knew the difficulties she would face if working alone with only one inexperienced agency worker. There would have been some adjustments that could probably have been made to try and make sure that the claimant was not placed in a similar situation again, or at least had adequate support to ensure she managed. However, on 28 November 2022 this particular duty to make adjustments had not arisen.

[119]In conclusion, on 28 November 2022 there was no failure to make reasonable adjustments and this claim does not succeed. Termination of engagement

[120]The claimant pursues three alternative claims about the termination of her engagement with the respondent. These are for direct discrimination, discrimination arising out of a disability and victimisation.

[121]Part of the respondent’s case is to deny liability for all three claims on the basis they say that they were not responsible for this decision. The respondent says that 360 Security and Support Services Limited terminated the assignment and it was not Mr Green who did this.

[122]We concluded that it was the respondent who made the decision to terminate the claimant’s engagement. It is clear from the evidence we saw and heard that Mr Green made the decision for the following reasons: 122.1. He indicated this clearly to Marlon Smith in his emails on 29 and 30 November 2022. Mr Green starts the discussions and in the email of 29 November 2022 says “it feels like that relationship is coming to an end.” We concluded he had not actually spoken to Mr Smith at that point. 122.2. Mr Green says in his emails to Daryl Fortescue on 29 November “we’ll need to cancel her bookings … arrange some kind of notice period with a new worker overlapping”. This was before any final decision was made on 30 November 2022 but indicates that Mr Green had already decided he did not want the claimant to continue working at Luke House. 122.3. The email from Mr Green to Mr Lopez dated 30 November 2022 summarising the conversation with Mr Smith makes it clear that the decision was made to terminate the claimant’s assignment at Luke House and that she would not be offered further work with the respondent.

[123]Our conclusion is that Mr Green decided he did not want the claimant working at Luke House and he communicated this to 360 Security and Support Services Limited. He discussed the situation with Mr Smith. In this conversation it was agreed that the claimant’s assignment at Luke House was terminated. 360 Security and Support Services then implemented the decision, due to being the agency and the connection with AV Support Services Limited, as they were the employer. Termination of engagement

[124]The key issue for us to determine in all three claims (direct discrimination, discrimination arising from a disability and victimisation) is the reason Mr Green decided to terminate the claimant’s engagement.

[125]For the direct discrimination claim the correct approach is to decide the following: 125.1. are there facts from which we can properly infer the reason for the termination was disability, if so the burden of proof shifts; 125.2. can the respondent show that the reason for terminating the claimant’s engagement was in no way due to disability.

[126]For discrimination arising from disability the approach is: 126.1. was there something arising from disability; and 126.2. was that thing a significant influence on the decision to terminate the claimant’s engagement.

[127]For victimisation the approach is: 127.1. were any of the communications the claimant relies on protected acts; and 127.2. were they a significant influence on the decision to terminate the claimant’s engagement. Direct discrimination

[128]There are facts from which we can infer that disability may have been the reason for the decision. On 29 November 2022 Mr Green says in his first email to Mr Smith that the claimant was complaining about discrimination due to her dyslexia. We also note that Mr Green commented in his email to Mr Fortescue that the advantage of agency workers is the ability to move them on if they are “not a good fit”. Using agency workers to enable swift action if they are perceived as not being “a good fit” could hide discriminatory motives. Therefore, the burden of proof shifts to the respondent. Discrimination arising from a disability

[129]For the discrimination arising from a disability claim, the claimant relies on the request for adjustments. We note in the ET1 this is described differently, as a “requirement” for adjustments. The respondent asserts this cannot be ‘something arising’. Looked at more broadly we find it could be something arising from a disability. Because of her disability the claimant had difficulties with aspects of her role and therefore needed adjustments. A need for adjustments to do her job fully is something that arises from a disability. Victimisation

[130]For the victimisation claim, we first looked at what were said to be protected acts. In the list of issues the claimant has referred to emails to Mr Lopez and Mr Green of 28 November 2022. The 2 emails she refers to were only sent to Mr Lopez, though he forwarded them to Mr Green. In her ET1 the claimant refers to “concerns she raised with management regarding their failure to implement reasonable adjustments to support her dyslexia”. This is broader than the communications identified in the list of issues.

[131]Given the emails referred to in the list of issues were not sent to Mr Green we have concluded that the claimant must have also been referring to the discussions she had with Mr Green and emails she to him the same day.

[132]In respect of the emails to Mr Lopez, we have concluded that they are protected acts. The claimant is raising with the respondent her need for reasonable adjustments and she notifying the respondent of their duty towards her. She made it clear that on that day she felt that adjustments she needed were not in place and she suffered as a result. An allegation that someone has contravened the Equality Act 2010 does not need to be express. The emails indicate the claimant is saying reasonable adjustments were not made that day so is a protected act.

[133]We also concluded that by expressly raising her need for reasonable adjustments the emails would also fall within the broader category of “doing any other thing for the purposes or in connection with this Act.”

[134]With regard to communications with Mr Green on 28 November, we found that he Mr Green said in his first email to Mr Smith that the claimant had stated to him she was being discriminated against due to her disability. This is clear evidence that the claimant had raised concerns with Mr Smith which he understood as being complaints of discrimination. Therefore, the claimant’s communications with Mr Smith included protected acts. Respondent’s reason for termination of engagement

[135]In summary, there was sufficient within the findings of fact we made for us to conclude that the claimant’s disability, need for adjustments and her raising concerns about this on 28 November 2022 may all have been the reason why the respondent terminated the claimant’s engagement.

[136]We need to consider what Mr Green’s reasons actually were when he decided to terminate the claimant’s engagement. For direct discrimination and victimization, the question is whether the disability or protected act was a significant influence on the decision. For discrimination arising we need to consider if the decision was because of the ‘something’ that was identified. The respondent’s case was that the decision to terminate the claimant’s engagement was purely to do with the claimant’s conduct and specifically her comments about the other agency worker, his age and being a family member of someone at the agency.

[137]Our conclusions about Mr Green’s reasons are as follows: 137.1. It is clear that the respondent decided to terminate the claimant’s engagement following the incident on 28 November 2022 and subsequent events, including the correspondence between the claimant and Mr Lopez. 137.2. The key context was the claimant’s status as an agency worker. In his email to Mr Fortescue, Mr Green comments on it being easier to “move them on” if any agency worker was not a good fit. From this it is clear that a key part of Mr Green’s decision making process was the claimant’s status and his view on how agency workers could be treated, in terms of ending engagements more easily. 137.3. We accepted that Mr Green did have concerns about the claimant’s comments about the other agency worker and the complaints the agency worker made about the claimant. This is reflected in the emails he sent internally and to Mr Smith. 137.4. Mr Green also had concerns about the claimant inappropriately escalating matters to Mr Lopez about the day. There also seem to have been concerns about her saying things to other parties, such as the hotel staff. This is also reflected in the emails. 137.5. Mr Green knew that the claimant felt discriminated against due to her dyslexia. This is reflected in his first email to Mr Smith, which he sent before he received the emails forwarded by Mr Lopez. He then knew the claimant had raised issues about disability discrimination with Mr Lopez. 137.6. When we look at all of Mr Green’s emails over the course of 28-30 November 2022 they show his view hardening about the claimant’s conduct. Specifically, he seemed more concerned about her escalating matters in a way that he felt was inappropriate.

[138]In summary, we are satisfied that primarily it was the claimant’s conduct that formed the basis of the Mr Green’s decision to terminate the claimant’s engagement. This was both her conduct when working on 28 November, her reaction to the events and her subsequent conduct in emailing Mr Lopez.

[139]Based on this we have concluded that the claimant’s dyslexia was not in itself part of the reason for dismissal. The claimant’s dyslexia was a background factor. Mr Green had always known that the claimant dyslexia before and it had not been a difficulty before. We were satisfied that the dyslexia in itself was not a significant factor in Mr Green’s decision.

[140]Similarly, we concluded that the claimant’s need for adjustments in the workplace was also not a factor. Again, Mr Green had always known that due to her dyslexia the claimant required some adjustments. We also accepted that Mr Green had made sure informal adjustments had been in place. Based on the events of 28 November 2022 it appeared that the claimant may have required further adjustments in the future. There is no reason to think that Mr Green would have been unwilling to try and accommodate further adjustments, had matters panned out slightly differently.

[141]Therefore, the claims for direct discrimination and discrimination arising from a disability do not succeed.

[142]We did not reach the same finding in respect of the victimisation claim. We concluded that Mr Green decided to terminate the claimant’s engagement with the respondent because of what he perceived as her problematic behaviour on 28 November 2022 and immediately after. He said that this was due to her interactions with the agency worker, making allegations about that worker’s relationship with the agency and escalating those issues to others. However, the claimant’s conduct on 28 November 2022 and after also included her complaints to Mr Green and Mr Lopez about her dyslexia, how that was relevant to the difficulties she faced on 28 November 2022 and feeling she had been discriminated against by the respondent.

[143]Essentially the claimant was perceived by Mr Green as being difficult. This was the general thrust of the emails he sent following the events of 28 November 2022. There were a number of different elements to Mr Green’s concern, which were referred to within the various emails from the time.

[144]In his evidence Mr Green emphasized the complaint by the other agency worker. He also expressed concern about the claimant making comments that could have been viewed as discriminatory on the grounds of age. We did not accept this was the sole or even main reason at the time. The importance of these issues appear to have increased with hindsight. These issues were just an element of the concerns referred to in the contemporaneous emails. There was no formal complaint made by the other agency worker, just an informal one which was undocumented. There were also conflicting accounts of what occurred that day, that of the claimant and that of the other agency worker. Mr Green did not investigate this further at the time, but in retrospect appears to have placed an increased importance on the other agency worker’s informal complaint.

[145]Mr Green made his decision to terminate the claimant’s engagement relatively swiftly and did not engage with the claimant directly after 28 November 2022. He did not spend time reviewing what had occurred on 28 November 2022 in any detail or speak further with the claimant to understand what had happened or what her concerns were. Neither do his emails indicate he had reflected on what happened, what the claimant seemed to have done and untangled his different concerns about the claimant. He continued to refer to multiple issues in his various emails.

[146]We concluded that Mr Green made his decision because he felt there were multiple problems involving the claimant which meant she was in effect too difficult to deal with. In part there were concerns about her interactions with colleagues, including the other agency worker on shift on 28 November 2022. However, the emails indicate that Mr Green’s concerns also relate to how the claimant reacted to the situation on 28 November 2022 which included framing her problems as related to her dyslexia and the respondent not making adjustments. The first email the claimant sent to Mr Smith expressly referred to the claimant complaining of discrimination, showing that was something that was on his mind. He then saw the emails the claimant sent to Mr Lopez raising concerns about reasonable adjustments before his final decision was made.

[147]In his final email to Mr Lopez confirming the decision Mr Green describes the claimant as being “defensive” and that the decision was made to end the assignment early to avoid “problematic behaviours”. We read this as a further reference to the claimant having raised concerns about how she felt she was treated, again indicating that this was part of Mr Green’s concerns.

[148]In summary, Mr Green decided to terminate the claimant’s engagement because of what he saw as “problematic behaviours”. This behaviour included the claimant having raising concerns about discrimination and her disability being a factor when problems arose during her shift on 28 November 2022. It may not have been something Mr Green was fully conscious of, but we concluded that the protected acts were a significant influence on his decision to terminate the claimant’s engagement. The fact that the claimant had complained about discrimination to Mr Green and then written to Mr Lopez about adjustments were part of what Mr Green perceived as the claimant’s conduct that was difficult.

[149]For these reasons the claimant’s claim for victimisation about the termination of her engagement by the respondent succeeds. Second victimisation claim

[150]The claimant also pursued a claim for victimisation about comments being made “to the effect that the claimant was ‘hard to work with, a bully and she could not manage the workload”.

[151]This claim is about the respondent having made this comment. We found that this comment was not made by the respondent. The comment was made by AV Support Services Limited who are no longer a party to proceedings.

[152]As the claimant has not shown that this comment was made by the respondent this claim does not succeed.