Ms P Perry v Perrywood Garden Centre and Nurseries Ltd: 3200819/2023

EMPLOYMENT TRIBUNALS

Case No 3200819/2023

Between

Ms P PerryClaimant

Perrywood Garden Centre and Nurseries LtdRespondent

Before

Employment Judge Gardiner

In person for claimant

Nigel Brockley (instructed by counsel) for respondent

Date 25 July 2025

JUDGMENT

The judgment of the Tribunal is that:- None of the Claimant’s complaint are well founded. Accordingly, the Claimant’s claim is dismissed.

REASONS

[1]The Respondent owns and operates several garden centres, including at a site in Tiptree, Essex. From 5 April 2018 until her resignation on 18 March 2023, the Claimant was employed by the Respondent as a Plant Area Assistant. She was based at the Tiptree site. Her case is that her resignation amounts to a constructive unfair dismissal. She also alleges that the way that she was treated in the course of her employment amounted to harassment, direct disability discrimination, discrimination arising from disability and a failure to make reasonable adjustments.

[2]This Final Hearing took place over nine days. It had been scheduled to last 10 days, but due to a professional commitment which had been fixed before I had been allocated the case, I was unable to sit on two of the days which had been previously allotted to this case. A further day was allocated at the end of the case. It was originally listed to be heard by a full Panel. The Tribunal was unable to arrange for a full panel to sit on the case on the scheduled dates. At the start of the final hearing, the parties consented to my hearing the case as a Judge sitting alone.

[3]The Claimant represented herself. Mr Nigel Brockley of counsel represented the Respondent.

[4]The Claimant gave evidence and was cross examined. In addition, the following witnesses were called to give evidence on the Respondent’s behalf:a. Tanya Mackintosh, Plant Area Manager

b. Megan Freeman. Claimant’s line manager

c. Nathan Whitbread, Neurodivergent Coach

d. Bob Cray-Hay, Mediator

e. Hannah Powell, Communications and HR Director

f. Merete Baker Sinclair, HR Manager

[5]Ms Hannah Powell had prepared a supplementary statement which responded to issues raised in the Claimant’s witness statement.

[6]In addition, documents were contained in a bundle of documents comprising 1065 pages; and a pleadings bundle made up of 282 pages. A further page, 1066, was added to the bundle by agreement. There was a draft Chronology and a draft Cast List provided by the Respondent.

[7]The Claimant was keen for the Tribunal to play a video in order to hear the audio recording. However, she had not provided any electronic device on which the video could be played in the tribunal. Nor had she supplied a copy of the video in a format which could be accessed by me.

[8]The issues to be decided were discussed at the outset of the hearing and again at the end of the hearing during closing submissions. Various amendments were made to the latest List of Issues to correct typographical and other minor errors and to ensure that it was in a format which properly reflected the legal complaints that were being advanced. At the end of the hearing, Mr Brockley quite properly raised the possibility with the Tribunal that the Claimant’s pleaded claim included an allegation not yet included in the List of Issues which had been overlooked during previous case management – namely that her alleged constructive dismissal was also an act of disability discrimination. On examination, I agreed that the Claimant’s claim included a complaint that her constructive dismissal was also an act of discrimination arising from disability for reasons given orally at the time. There was no request for written reasons.

[9]Reasonable adjustments were made for the Claimant during the course of the Final Hearing, in line with the reasonable adjustments discussed and agreed at a previous Preliminary Hearing conducted by Employment Judge Reid on 17 November 2023. These included taking frequent breaks, providing the Claimant with a fan and positioning the Claimant’s desk away from the desk occupied by the Respondent’s representative. Factual findings

[10]The following factual findings have been made on the balance of probabilities assessing the evidence before me at the Final Hearing in the form of witness evidence, oral evidence from witnesses and that contained in the documents. I have only read the documents to which I have been directed in the course of the Final Hearing, whether in the witness statements or in the course of oral evidence. Whilst I have considered the totality of the evidence, I have only made factual findings on matters that enable me to decide the issues in the List of Issues. Although the Claimant’s allegations date from June 2024 onwards, I have made factual findings about the Claimant’s employment on earlier dates. This is to establish the nature of the working relationship between the Claimant and the Respondent. It is also relevant to the issue of the stage at which the Respondent had knowledge of the Claimant’s health conditions which are said to amount to a disability.

[11]The Respondent owns and operates garden centres and nurseries in Essex.

[12]The Claimant had been interviewed for a role at the Respondent’s Tiptree Garden Centre by Tanya Mackintosh and Zoe Willis (Departmental Manager). She was offered the role following a successful interview. In the period before she started with the Respondent, she had run her own business for a period of eight years.

[13]The Claimant completed a Pre-Employment Health Questionnaire. She answered ‘No’ to questions about whether she was under the care of a doctor or receiving treatment or medication at present, to whether she had any health limitations which might affect her work or require job modification, to whether she had anxiety, depression, eating disorders or other mental health problems, and to whether she had consulted with a psychiatrist, psychologist or counsellor. She signed a declaration confirming that her answers were true.

[14]By her own admission, at the start of her employment with the Respondent, she did not appreciate that she might satisfy the diagnostic criteria for Autism or ADHD. She claims that she disclosed to the Respondent during her interview that she had dyslexia. I do not accept this. It is inconsistent with the health questionnaire she completed shortly afterwards.

[15]Her first line manager was Zoe Willis. Given the timespan of the issues for which specific findings are required, it is not necessary to make detailed factual findings about the nature of her working relationship with Ms Willis during the first year of her employment. I have no reason to doubt the Claimant’s description of the state of that relationship as strained.

[16]From very early on in her employment, the Claimant became very invested in her role. As she puts it in her witness statement (paragraph 43), it gave her purpose and she took great pride in her achievements. She added “It was far more than a job. I tried so hard. It was all I thought about. It was friends. It was family. It was my life”.

[17]By her own admission, she is someone who has low self-esteem. The only thing she likes about herself is what she achieves. Given these traits, she is hypersensitive to criticism. Often, she would internalise her emotions prompted by the conduct of others behaving in ways that she found difficult. She struggles to read other’s emotions. Internalised anger would build prompted by several incidents. It would spill over into emotional outbursts which were triggered by relatively innocuous incidents. Those outbursts would often appear as an overreaction. She has sufficient insight to recognise this, as she records early in her witness statement. Several of those incidents have become centre stage in these proceedings.

[18]At a one-to-one meeting held in January 2019, she completed a template document answering various questions about how she was getting on. Against the entry “What is causing problems for me” she wrote “lack of confidence to just get on. Effects this has on other members of the team” “outbursts”.

[19]On 9 April 2019, she had her first annual review. It was conducted by Tanya Mackintosh, Plant Area Manager, and by Zoe Willis, who was the Department Manager Houseplants and Bedding/Container. In answer to the question “How do you feel things are going at the moment?” she commented that she still finds it hard to take constructive criticism and takes it personally. It was clear from this document that she lacked confidence when asked to assist with certain tasks: “Philippa forgets things and doesn’t know who to call. Philippa said that her mind goes blank when a customer is standing in front of her. She does feel she has got better at answering calls.”

[20]It was suggested that she should take different routes back to her workstation so she could familiarise herself with other departments within the Garden Centre. By the following day, as suggested, the Claimant had drawn out a floor plan of all the areas. Zoe Willis identified the managers of each of these areas and the names of the staff who had responsibility for those areas. The Claimant was told that after a year of employment, they would have expected her to be more proactive in building on her knowledge of the job. The notes recorded that she could become stressed and react, and she needed a “CAN DO positive attitude”.

[21]Following this meeting, Zoe Willis sent her a letter dated 15 April 2019. This placed her on an informal performance improvement plan. Improvement was expected with planting of all container types, radio calls and morning checks during the following month. She was warned that a continued failure to improve or maintain required performance would be addressed in accordance with the Respondent’s formal capability procedures.

[22]A further informal performance meeting took place on 16 May 2019. It was conducted by Zoe Willis and also attended by Cerys Sapsford. Ms Willis noted that the Claimant had grown in confidence over the last few weeks, but that there could be times when she seemed unsure about tasks she had done previously. She was advised to go and have a look before replying: “I don’t know”. At the meeting the Claimant mentioned that she was about to undergo a dyslexia assessment.

[23]At around this time, all staff working in the bedding department, including the Claimant, had been asked to wear nitrile gloves at all times. The Claimant had a lengthy history of eczema which had been diagnosed when she was a baby. The requirement to wear nitrile gloves prompted the Claimant to suffer from flare ups of eczema in her hands.

[24]Hannah Powell referred the Claimant to Occupational Health. Occupational Health carried out an assessment on 16 May 2019 (on the same date as assessments for other members of staff) and produced a report specific to the Claimant’s situation on 13 June 2019. The reason for the referral was the ongoing problems of eczema she was experiencing in her hands which had been exacerbated by wearing gloves at work. Occupational Health recommended she be redeployed to a role where she was not required to wear non-absorbent gloves at work. The Occupational Health report made no reference to any mental health symptoms.

[25]As a result of the Occupational Health report, the Claimant was offered a change of role so that she would be reassigned to the Outdoor Plant Team rather than the Container Team. This was due to her inability to use nitrile gloves because of her eczema. The Claimant would have preferred to remain in her previous role but agreed to the change. Thereafter the Claimant tended to work in the Top Stock Area during the week; and spent one day in the Plant Area at a weekend. She would alternate between working on Saturdays and Sundays. On Saturdays her line manager was Cerys Sapsford. On Sundays it was Mrs Mackintosh and latterly Josh Eames.

[26]The Claimant had a good working relationship with Ms Sapsford. She allocated the Claimant responsibility for the climbers section of the Plant Area when she was working there on weekends. The Claimant was grateful to be given this particular role. Ms Sapsford also arranged for the Claimant to have neurodiversity training in about August 2019. This was also provided to other members of staff who worked with the Claimant.

[27]At some point in late 2019 or early 2020, Mrs Mackintosh gave the Claimant lifts to work on a regular basis. The Claimant valued this time and felt that she and Mrs Mackintosh had good conversations and that she would consider her a friend. If the Claimant had felt negatively towards Mrs Mackintosh as a result of the consequences for her of the introduction of the nitrile glove policy, this did not impair their working relationship at that point.

[28]On 23 March 2020 the garden centre closed as a result of the National Covid lockdown. The Claimant was furloughed. By July 2020 she had returned to work. The Respondent organised coping strategy training for all those who had dyslexia as well as Disability Awareness Training for members of staff about the impact of dyslexia. The Claimant attended this event.

[29]By the start of 2021, the Claimant’s line manager had become Josh Eames. He also had a good working relationship with the Claimant, at least initially. He was content for the Claimant to have responsibility for the Top Stock Area, and for a colleague, Louis, to look after the Bottom Stock Area.

[30]Mrs Mackintosh took a keener interest in how the Claimant was working, which the Claimant perceived to be Mrs Mackintosh micromanaging her. By contrast, Mr Eames took a much more “hands off” approach. He was content to give her more discretion as to which tasks to tackle and how they should be done. This latter approach was welcomed by the Claimant, who did not like it when anyone challenged the way she was working.

[31]On 17 March 2021, the Claimant chose to speak to Mrs Mackintosh whilst they both were working in the Top Stock Area. She accused Mrs Mackintosh of undermining her all day, of “mentally kicking her down”, that Mrs Mackintosh had not helped but hindered her all day and that she could have done the work faster on her own. The following day, the Claimant messaged Mrs Mackintosh saying “Are you ok? That was what I was going to ask you … before I blow up. You seemed stressed and overloaded, trying to do everything and be everywhere. And I just wanted to ask but didn’t. And as always, I added to your stress”.

[32]Mrs Mackintosh responded that “she was fine thanks for asking. Just a hectic time of year”. Later that day, the Claimant messaged Mrs Mackintosh in the following terms - “I’m sorry but I need to send this. I am so depressed, I haven’t stopped crying all day, I hate fighting with you, I am so sorry, I hate losing it at work. It’s always me with the problems! I just want to get on, be friends and get lots of work done. I am not Menopausal and am not due on! But I’m sure that’s what everyone thinks! Just care way too much”.

[33]Mrs Mackintosh responded “Sorry only just seen your message. Don’t get upset. I will see you next week”. Mrs Mackintosh had previously spoken to the Claimant to say that she ought to speak to someone regarding her depression and she should contact her GP if necessary.

[34]On 20 March 2021, Mrs Mackintosh messaged Jenny Greenwood, HR Manager, to record her recollection of what had taken place on 17 March 2021 and in the message exchange on 18 March 2021, the day after the altercation. She explained why she felt that the Claimant had reacted as she had on 17 March 2021, saying that the Claimant just wanted things to be put down where she wanted them to be put down. She said that she did not want to take this incident any further at the moment but was emailing so there was a record of what took place. She said that she would speak to the Claimant on Monday.

[35]On 23 March 2021 there was a further conversation between the Claimant and Mrs Mackintosh. She told the Claimant that she appreciated that the Claimant may want or need to work in a particular way due to her dyslexia but she needed to understand that this may not always be possible. She said that it was not acceptable for the Claimant to speak to her in the way she did in front of other members of staff. If she was finding a situation stressful she should ask to take five minutes out and speak to someone. During the conversation, the Claimant was tearful on occasions, saying that she could read other members of staff but she could not read Mrs Mackintosh. She said she did not see the point in having this conversation. Mrs Mackintosh encouraged her again to seek help from her GP as she had repeated referred to being depressed.

[36]In about July 2021, the Claimant had been researching on social media the particular difficulties she had been experienced whilst at work. She decided that she may have Rejection Sensitive Dysphoria (RSD), which she felt might provide a convincing explanation for being triggered by the way that others were treating her at work. On 25 July 2021, she shared her potential diagnosis with Mr Eames, Mrs Mackintosh and Ms Sapsford.

[37]In a WhatsApp message sent in August 2021, the Claimant told Mr Eames she had just had her first counselling session. By August 2021, as she herself accepts in her witness statement, the Claimant’s anxiety and stress levels had increased and her emotional outbursts were becoming more frequent.

[38]She sent an emotional email to Hannah Powell on 22 August 2021. She said that she was desperate, that she was so close to leaving, she had spent the last three days sobbing and this was all because her managers did not understand her disabilities. This reference to her managers was also to Mr Eames, who she felt had dumped plants in her area. Her email said that she had been diagnosed with depression around two years ago, she was trying to get an ADHD assessment and believed that she had Rejection Sensitive Dysphoria (RSD). She said that she believed it was getting worse daily. On 23 August 2021 she spoke at length to Jenny Greenwood, HR Manager. It was arranged that there would be another Occupational Health assessment.

[39]On 26 August 2021, the Claimant sent a WhatsApp message to her colleagues who were in the Plant Area WhatsApp group. She said “I know I have been driving everyone crazy recently, especially my managers and I am truly sorry. Thank you to everyone that has been so kind, ask if I’m okay, given hugs and put up with me. I’m taking some time off and will see you all soon. Big hugs”.

[40]She subsequently visited her GP who considered she was suffering from severe depression and from moderate anxiety. A referral was made for talking therapy.

[41]Pending that Occupational Health assessment, the Claimant was removed from the Climbers area where she had been based. The Claimant took this move very personally. Without a designated area, she was unable to plan the tasks that needed to be carried out. She was dependent on being allocated tasks across different and unfamiliar areas, which she found stressful.

[42]The Occupational Health assessment took place by telephone on 3 September 2021. The report was dated the same day. The report noted that she was dyslexic and exhibited symptoms of attention deficit hyperactivity disorder (ADHD) and Rejection Sensitive Dsyphoria (RSD). The Claimant noted that since she had mentioned her symptoms of ADHD, she felt she only received criticism from management and did not receive any praise. She was assessed as fit to be at work – this would be beneficial to her overall sense of wellbeing. It was recommended that consideration should be given to neurodiversity awareness training for management.

[43]On 8 September 2021, she met with Jenny Greenwood to discuss her work and the Occupational Health report. She noted that Josh Eames and Cerys Sapsford were usually really good and most of her problems came from Mrs Mackintosh. She noted that when people came to work in her area, they “did not do it right”. It appeared she resented Mrs Mackintosh for what she perceived as interference with her area. She felt that more people should have their own areas. This would ensure that people were clearer on what needed doing and would take more pride in their work. She felt that Mrs Mackintosh micromanaged her.

[44]On 19 September 2021, the Claimant sent a very lengthy email to Ms Greenwood. The purpose of the document was to explain the types of situations that she found stressful and how she felt that the Respondent should manage her employment.

[45]At around this time, by way of an adjustment, it was agreed that the Respondent would message the Claimant at the start of the day with the jobs that needed to be done during the course of the day.

[46]In October 2021, Ms Merete Baker Sinclair took over from Jenny Greenwood as the HR Manager with responsibility for the Claimant’s situation. She held an introductory meeting with the Claimant on 22 October 2021. The Claimant mentioned ongoing problems in her dealings with Mrs Mackintosh, who she felt was still micromanaging her and did not trust her.

[47]On 18 November 2021, the Claimant messaged Mr Eames to tell him that she felt very isolated, not wanted and “un needed”. She said she had been crying for the last six days. She said that when she was upset she hated herself, she brought the people she was working with down, and she was horrible to work with. It is clear that at that point she was continuing to come into work although she was not in a good mental state.

[48]On 19 November 2021, there was a follow up discussion between the Claimant and Ms Baker Sinclair. Ms Baker Sinclair advised the Claimant about access to Cognitive Behavioural Therapy through the Employee Assist Programme (EAP).

[49]On 15 January 2022, the Claimant’s application to Access to Work for a grant was approved. This indicated that funding was approved for Neurodiversity Disability Awareness Training and for six three-hour Coping Strategy Training sessions. In addition, a twelve-month subscription for the Brain in Hand App was funded at a cost of £1470. This App provided simple digital tools for organising time, managing anxiety and solving problems. One feature of the Brain in Hand App was a red button, which when pressed would connect the Claimant to a health adviser with whom she could discuss her current difficulties as a matter of urgency. The Claimant did not set this up until the start of September 2022. The response time once the helpline was activated was around 30 minutes.

[50]On 29 January 2022, the Claimant set up a WhatsApp group with her managers and asked that tasks she was to do should be communicated to her by WhatsApp. However she became upset at what she perceived to be a failure to communicate clearly with that she decided to leave this WhatsApp group and was close to resigning. On 4 February 2022, the Claimant messaged to say: “I can’t do this anymore, how do I quit?”. She did not resign but did take a few days off work.

[51]On 10 February 2022, the Claimant messaged that she had spoken to her doctor today and her doctor was referring her for an autism assessment. She said that she had filled in an online test and recorded “some fantastically high results”, which she thought was “so scary”.

[52]On 13 February 2022, Mrs Mackintosh sent a detailed email update to Ms Baker Sinclair. This was in advance of a return to work meeting that Ms Baker Sinclair was due to carry out with the Claimant the following Monday. Mrs Mackintosh recorded what had been agreed with the Claimant to assist her in carrying out her tasks. The Claimant was to be given advance notice of information that would be discussed at staff morning meetings, if it related to jobs that she may be involved with. The Claimant’s instructions were to be given by Josh Eames rather than by herself where practicable. Finally, instructions were to be given via WhatsApp message, where practicable.

[53]The note recognised that sometimes priorities and tasks changed during the day and the Claimant needed to accept this. Mrs Mackintosh said that she did not know whether the Claimant was appreciative of the extent of the support that the Respondent was providing. Reference was made to the impact of the Claimant’s conduct on the morale of other members of staff, who perceived that there were no consequences to the Claimant’s actions. The Claimant needed to recognise she had to work within the Respondent’s parameters as they had to consider the needs of the business and of other members of the team. Mrs Mackintosh recognised that Ms Baker Sinclair needed to be careful in setting the tone of the meeting, given the Claimant’s mental health.

[54]In March 2022, the Claimant stopped working in the Plant Area on her weekend day, because she found it too stressful. She had been reducing the amount of time she spend in the Plant Area by volunteering for tasks elsewhere, including watering the plants in other areas.

[55]On 20 April 2022, the Claimant and Mrs Mackintosh took part in a three-hour cocoaching session from which a co-coaching report was prepared. The session was designed to build awareness and communication and was an opportunity to resolve misunderstandings. Mrs Mackintosh was encouraged to use texts or to write job lists, including using a white board, and to adopt a more hands off managerial style.

[56]Following the session, the Claimant sent a long email in which she said that she basically needed reassurance from Mrs Mackintosh. She needed to know that she was good enough. She stated she was very bitter about being removed from the Climbers section of the Plant Area. This removal made her feel a failure and not good enough to complete her tasks. She said that when Mrs Mackintosh appeared to have a chat with her, she became very stressed and went into fight or flight mode. She recognised that this cycle had to be broken. She ended by saying that it had taken her four and a half hours to write that long email. She sent a subsequent message apologising for the message being very negative. She added “I’ve said it now and it is out of my head”.

[57]In around April 2022, Mr Eames left the Claimant’s employment, having secured a role at a rival garden centre. Ms Sapsford became the Claimant’s temporary line manager.

[58]On 16 May 2022, a healthcare organisation sent the Claimant a letter acknowledging receipt of a completed questionnaire she had undertaken in advance of an appointment to assess whether she had autism. The letter told her that there was a long waiting list and she may have to wait up to 30 months for the assessment.

[59]On 17 May 2022, Cerys Sapsford conducted an Employee Health Adjustments meeting with the Claimant, based on a template which asked particular questions. The first question was “My health condition/disability has the following effect on me”. The answers provided by the Claimant recognised that she was easily upset, overwhelmed, angered or destroyed. She experienced anxiety and was panicky, especially in the plant area or in groups of people. She had difficult reading and remembering names and never felt good enough. She said that when she was triggered, the trigger needed to be identified, talked through and fixed. She specified RSD, but did not name ADHD or Autism as particular conditions. Her explanation is she was never asked to specify her particular conditions. The Claimant signed this document.

[60]On 30 May 2022, Megan Freeman started work for the Respondent. She was Mr Eames’ replacement. At that point, she became the Claimant’s line manager.

[61]The same day, the Claimant and the Respondent signed a Tailored Adjustment Agreement. It appears to have been drafted in advance of Ms Freeman’s arrival, noting the date on which she would be starting. This Agreement was drawn up in recognition of the difficulties that the Claimant had been experiencing as a result of her health condition. The document noted that the Claimant had symptoms of attention deficit hyperactivity disorder (ADHD) and rejection sensitive dysphoria (RSD). It recorded the impacts that the Claimant’s health condition had on her at work, largely mirroring what had been recorded on the Employee Health Adjustments form. It said that she was easily upset, overwhelmed and angered; that she experienced anxiety and was panicky especially in the Plant Area or in groups of people; that she was always in flight or fight mode and was easily startled; that she had difficulty reading and remembering names and that she never felt she was good enough.

[62]The Agreement permitted her not to attend the Morning Meeting. Her daily tasks would be listed on a White Board. If a task was created at the last minute, then she would be texted the job by her line manager if this could not be communicated by radio. If the Claimant needed a break because she felt overwhelmed, she could take a break whenever needed. The Agreement noted that there would be regular one to ones with Ms Freeman once she had settled into her new role.

[63]The document also recorded further symptoms which might indicate the need for adjustments or that the Claimant was not well enough to be at work. It highlighted that the Respondent had a team of Mental Health First Aiders with whom the Claimant may wish to talk.

[64]At the end of the Agreement, above her signature, were the following comments: “I will let you know if there are changes to my condition which effect my work and/or if the agreed adjustments or changes are not working. We will meet privately to discuss other adjustments or changes to make. If you notice a change in my performance or feel these adjustments are not working, I’m happy to meet privately to discuss what needs to be done”.

[65]On 31 May 2022, the Claimant attended a team night out at the cinema, because one of her colleagues was leaving. The following day, she messaged Mrs Mackintosh to say that she had had a nice time. She also said “I am so sorry. I knew I wouldn’t be able to hold it together and I should not have come.”

[66]Ms Freeman had never met the Claimant before she started working as her line manager. She had to manage the Claimant effectively but also had to learn how best to do this in practice given the Claimant’s particular health conditions. Inevitably, that required her to try particular management techniques, to see to what extent the Claimant responded well to certain styles of line management, and to adapt her management style as appropriate as she got to know the Claimant better. I accept that this is what Ms Freeman attempted during June 2022, as she recorded in her grievance against the Claimant lodged on 25 July 2022. The Claimant’s perception was that Ms Freeman did not respect her and did not trust her. She was unwilling to accept that Ms Freeman may legitimately have a different view as to how things should be done. The Claimant needed to respect and adhere to that view given that she was her line manager.

[67]During the first few weeks when the Claimant was line managed by Megan Freeman, there were several instances where Ms Freeman told the Claimant off for the way in which she had been working:a. On an unspecified date in June 2022, Ms Freeman asked the Claimant to move stakes which were used to hang the climbers. These were scattered all over the floor. Ms Freeman asked the Claimant what they were for and whether they were needed. As she did so, she was not gesturing with her hands. She did not snap at the Claimant and nor did she walk away. Once Ms Freeman understood their potential use, namely that they were being stored next to the climbers that they were the right size to prop up the plants, she asked the Claimant to store them better.

b. On another date in June 2022, Ms Freeman had a further discussion with the Claimant about the need to cut the climbers back to the cane in the Stock Climbers section. Mrs Mackintosh had told Ms Freeman that this was what was needed. The Claimant disagreed that this was necessary. Ms Freeman did not become aggressive towards the Claimant or cut her off during the conversation. This was an appropriate discussion for Ms Freeman to have with the Claimant.

c. On 13 June 2022, there was further incident between the Claimant and Ms Freeman. Ms Freeman had briefed the Claimant about a tree weeding job. The Claimant spoke to Ms Freeman ten minutes later to tell her the task had been completed. Ms Freeman told her off for not completing the task, because she knew it could not be done that quickly. She was justified in doing so. She told the Claimant that it was the whole area that needed weeding and not just the pots. She went to show the Claimant how the task should be done. I accept that Ms Freeman was not angry towards the Claimant. Although she was frustrated with the situation, she did not show that frustration to the Claimant. The Claimant was upset at being criticised. Subsequently she told Ms Freeman she had self-harmed in response to Ms Freeman’s criticism. Whilst she accepted that the way she had responded was childish, she claimed this was Ms Freeman’s fault for making her react in that way.

d. On 20 June 2022, Ms Freeman spoke to the Claimant about an incident when incorrect items had been loaded by the back door to the old house plants in an alleyway. Ms Freeman’s feedback to the Claimant was that she had asked a colleague what to do, rather than speaking to Ms Freeman, which is what she should have done, as Ms Freeman was her line manager. As this feedback was being provided, the Claimant started to walk away. Ms Freeman asked her why she was walking away. The Claimant did not ask for a break to explain why she was walking away as her line manager was speaking to her. Ms Freeman did not raise her voice at the Claimant nor did she continue the conversation beyond what was appropriate. The day after that incident, at 07:35 (and therefore outside standard working hours) the Claimant messaged Ms Freeman to say she was left feeling like Ms Freeman did not trust her and she was being accused of something really bad. She ended the message “you will never understand the damage you have done”.

[68]On 11 July 2022, Ms Freeman met with the Claimant to review how the Tailored Adjustment Agreement was progressing. Also present was a colleague, Sharon Wisbey, who was also a Mental Health First Aider, and Merete Baker Sinclair from HR. In advance of the meeting, the Claimant had sent Ms Baker Sinclair a list of recommendations that the NHS counsellor had made. The Claimant had previously been prescribed medication by her GP but by this point she had stopped taking her medication because of the side effects she experienced. The Claimant said that she did not like receiving tasks by having them written on a white board. She considered WhatsApp was the best way to tell her what needed to be done. She felt that the tasks allocated indicated her performance was being criticised. By way of explanation for how she had behaved on a previous occasion, the Claimant said that she had gone on a “think strike”. When asked if she thought that this was productive, she said “I was thinking of me, thinking of me falling apart”. The Claimant said that she was throwing up in the toilets as she could not face Ms Freeman. Ms Freeman said that she hated the way she made the Claimant feel and wanted the two of them to have a good working relationship.

[69]At one point, Ms Freeman said something along the lines of “I need to take five minutes” and stepped aside for a short while. This was because she was become frustrated with the Claimant’s attitude and wanted to remain calm and to collect her thoughts. An action point following the meeting was that Ms Freeman said she would look at particular Apps that would help with communicating the tasks the Claimant was required to perform.

[70]There was a covert recording of at least some of the interaction between the Claimant and Ms Freeman on 11 July 2022. It is the audio to a video that was taken by the Claimant although apparently there is no picture. Both parties produced their own transcripts of what was said, although there are minor differences between the two transcripts. The Respondent is content to adopt the Claimant’s transcript as accurate. In addition to reading the transcript, I have been asked to listen to the covert recording as providing evidence of the tone of voice used by Ms Freeman during the exchanges. Neither party was able to play that recording during the Tribunal hearing because they did not have a device that was able to achieve this. Having reviewed again the transcript of these exchanges and the way that the incident is described in the Claimant’s witness statement (at paragraph 193), I do not consider that there would be any benefit in listening to the transcript. The Claimant does not advance a positive case in her witness statement about Ms Freeman’s tone of voice. This incident is not in itself said to amount to part of the course of conduct relied upon for the constructive unfair dismissal claim or said to be an act of disability discrimination. It does not provide any proper basis for inferring whether Ms Freeman was aggressive towards the Claimant the following day, 12 July 2022.

[71]The following day, 12 July 2022, there was an incident between the Claimant and Ms Freeman. The outside air temperature was 30 degrees. Ms Freeman had told the Claimant both the previous day and on the morning of 12 July 2022 that on this day she needed to work in the barn from 11am onwards, where it was cooler. A space had been designed within the barn where the Claimant could work, away from other workers. At 11am the Claimant was still working outside. When Ms Freeman spoke to her again, the Claimant refused to come into the barn. She started shouting at Ms Freeman, insisting that she would continue working outside. Ms Freeman remained calm and did not raise her voice back to the Claimant. From the Respondent’s reasonable viewpoint, this appeared to be a refusal to accept an instruction which had been given to all staff members by one of the Respondent’s Directors. With encouragement from HR, the Claimant eventually went into the barn, but was upset during the time she was there at how she perceived she had been treated.

[72]Later that day was the staff summer party. Given the incident between Ms Freeman and the Claimant earlier in the day, they were both reluctant to attend, but did so. The Claimant does not enjoy social gatherings. She would have struggled to participate in the event whatever had happened between herself and Ms Freeman. I do not accept that those present deliberately ignored her and sought to exclude her from their conversations. On seeing Ms Freeman at the gathering she found it too stressful to stay and chose to leave. In her witness statement she describes how she felt suicidal on her drive home.

[73]On 18 July 2022, there was a further meeting involving the same people who had met with the Claimant on 11 July 2022. They asked the Claimant how she was finding an App which had been sourced to assist her with receiving the tasks she had been allocated each day. They also discussed the incident on 12 July 2022 and her working relationship with Ms Freeman more generally. She complained of sensory overload on 12 July 2022. This was the first time she had used this particular term to describe how she was feeling. During this meeting, the Claimant alleged that Ms Freeman was “attacking her all the time, nothing I’ve done since Megan started has been right”. She accepted that she would turn her back on Ms Freeman and switch off if she felt she was about to be criticised.

[74]Mrs Mackintosh took a few days leave around this time. On 23 July 2022, Cerys Sapsford sent her an email update with the subject line “Welcome back”. This email made reference to the poor state of the working relationship between Ms Freeman and the Claimant. She wrote that if things did not improve between the two of them, she thought that Ms Freeman would quit. She added that Ms Freeman had been in tears and almost did not come to the party because the Claimant “makes her feel like crap”.

[75]As a result of the way that Ms Freeman felt she had been treated by the Claimant on 12 July 2022, Ms Freeman submitted a grievance against the Claimant. This was dated 25 July 2022. Her grievance recorded several instances over the last six weeks where she felt that the Claimant’s behaviour had been unacceptable. The focus was her perception of how she had been treated on 12 July 2022. She ended her grievance with the following words: “I have struggled with my mental health in the past and I find it very difficult to be blamed for Phillipa's mental health also. I will often go home in the evening and constantly worry about how something I have said may affect Phillipa, and I will replay situations in my head and think about the things I should have or could have done differently. I am at a point where my evenings are consumed by thinking about every mistake I have made and I have had several panic attacks around either things that have been said or the thought of what might be said when I next see Phillipa. These thoughts will not stop me from doing my job, however do effect the way I am feeling particularly outside of work and I feel they effect how productive I am in work. Overall, I feel there needs to be a significant improvement in Phillipa’s attitudes and behaviours towards me in order to allow us to work together effectively. Phillipa’s actions are currently preventing me from being able to spend time with other members of my team and stopping me from completing objectives that are set by other people within the business such as instructions from Tanya or Alan.”

[76]Whilst her grievance about the Claimant was being investigated, Ms Freeman did not line manage the Claimant. Mrs Mackintosh became her temporary line manager. This was from around 8 August 2022 until September 2022.

[77]The Claimant was invited to attend a grievance investigation meeting on 10 August 2022. This happened to be the Claimant’s birthday. I accept that this date was not chosen knowing it was the Claimant’s birthday. Following the meeting, she started a period of sick leave for workplace stress and anxiety for which she did not return until 22 August 2022. On 22 August 2022, Ms Baker Sinclair met with Henry Shelford from ADHD UK to find out more about RSD and Autism. She sought advice as to whether it was appropriate to invite an employee with RSD or autism to a disciplinary meeting to discuss their conduct.

[78]The following day, 23 August 2022, the Claimant was told that Ms Freeman’s grievance was being upheld. As a result, the Respondent would be moving to a formal disciplinary process in relation to the Claimant’s conduct, which would be conducted by Hannah Powell. This disciplinary hearing was held on 13 September 2022.

[79]Reasonable adjustments were made for the disciplinary hearing to cater for the Claimant’s various conditions. These included receiving all the questions that the Respondent proposed to ask the Claimant in advance of the scheduled start time for the hearing. The outcome of the disciplinary hearing was that the Claimant was issued with a written warning. This was for the Claimant’s unreasonable refusal to comply with her line manager’s reasonable instructions and the potential insubordination in displaying an uncooperative and disrespectful attitude to her line manager.

[80]On 15 September 2022, the Claimant emailed Hannah Powell. The email did not use the word “grievance” but said she wanted to complain about the way that three managers made her feel. Her email stated that “I don’t think I want this to go any further, but this is what I was thinking”, saying that Ms Powell should read the email “to know the whole picture”. She then itemised three numbered complaints – against Ms Baker Sinclair, against Ms Freeman and against Mrs Mackintosh.

[81]This prompted Ms Powell to meet with the Claimant the following day, 16 September 2022. The Claimant confirmed she did not want to pursue a formal grievance against any of those three individuals. In an attempt to reassure the Claimant, Ms Mackintosh explained that she would not be losing her job as a result of the disciplinary process. Instead, she would be issued with a written warning. Given the Claimant’s aversion to receiving any form of criticism, the Claimant was very upset at this outcome.

[82]On 21 September 2022, the Claimant met with Ms Powell. Following the meeting there was a further email exchange between the Claimant and Ms Powell in which the Claimant revealed she had self-harmed in response to receiving a written warning. She said that it was the biggest criticism she could receive, the worst rejection. She said she wished she was dead.

[83]On 22 September 2022, Ms Freeman met with Mrs Mackintosh and Ms Powell to discuss an update on the adjustments that had been put in place. It was agreed that Ms Freeman would prepare weekly plans, would have weekly catch ups with the Claimant, and that she would continue to message the Claimant about her work. The following day, Ms Powell provided the Claimant with an update on her meeting with Ms Freeman and Mrs Mackintosh.

[84]On 27 September 2022, the Claimant asked if it was too late to put in an appeal. Ms Powell responded two days later, on 29 September 2022 saying “OK. Let’s discuss tomorrow. Regarding an appeal, we can also discuss this tomorrow. I’d like you to fully understand how I came to my decision before you consider an appeal. Hopefully tomorrow will clarify this for you. Enjoy your day off”.

[85]On 30 September 2022, Ms Powell met with the Claimant again in advance of her receiving the written outcome of the disciplinary process.

[86]On 30 September 2022, the Claimant was emailed written confirmation of the outcome of the Disciplinary Hearing. The Claimant was being issued with a Written Warning. The reasons were fully set out. The decision was expressed in the following terms: “My finding is that I believe that you raised your voice and spoke in a disrespectful manner towards your line manager, Megan, on 12 July 2022. I also believe that you were being deliberately uncooperative when you were asked to work inside in order to protect your own health and well-being, which is unacceptable. From the evidence that I have considered, I think that this has happened on previous occasions. I consider that your behaviour on this occasion amounts to insubordination.”

[87]In the disciplinary outcome letter, Ms Powell discussed the Claimant’s argument that the way she responded to Ms Freeman was influenced by her line manager. The Claimant had argued that she found it difficult to move on when she is given an instruction with which she disagreed. Ms Powell decided that Ms Freeman’s instruction on 12 July 2022 was a reasonable one.

[88]The Claimant was told that the warning would remain on her file for a period of a year after which it would be disregarded, providing that there was no further misconduct. She was informed of the right to appeal against the decision. She did not appeal the outcome.

[89]The Claimant has said, and I accept, that she did not read this disciplinary outcome letter at the time. She only read it when preparing for these proceedings.

[90]On 30 September 2022, the Claimant sent Ms Powell a series of extracts about Pathological Demand Avoidance that she had discovered when researching the condition on the internet. She had not been aware of this condition previously. It had not been diagnosed as an appropriate diagnostic label to explain the Claimant’s behaviour. She ended her email by writing that she had condensed the material she had research so that it only included the parts that she “totally agreed with and identified as something I do say, react or think could help”.

[91]On 1 October 2022, Hannah Powell met with the Claimant and with Ms Freeman in an attempt to help them work together again. Ms Powell sent Ms Freeman an email with suggestions designed to promote a better working relationship. A follow up meeting took place on 4 October 2022. At this meeting, Ms Powell is alleged to have told the Claimant that she had been taken off the Climbers Area because she had become too territorial about this area of the garden centre. I find that this comment was said by Ms Freeman to the Claimant, because it matches what Ms Freeman said to Ms Powell in a WhatsApp exchange between the two of them on the same day.

[92]During one of the meetings between the Claimant and Ms Powell told her that her standards were too high. This upset the Claimant, which she took as an insult. She said that her standards were way higher than what was currently to be seen in the Stock Area.

[93]On 3 October 2022, Ms Freeman was asked to send a screen shot to Ms Baker Sinclair whenever the Claimant refused on WhatsApp to do a task she had been asked to perform. This was so that Ms Baker Sinclair could document it in the Claimant’s file.

[94]In early October 2022, the Claimant complained to Ms Freeman that she was being asked to have responsibility for trees when she was working in the Plant Area. Ms Freeman said she understood that this was difficult for her, and asked if there was an area that she would be more comfortable working in. The Claimant responded “Topiary”.

[95]On 6 October 2022 the Claimant emailed to note an improvement in her condition. She wrote: “I’m not being triggered as much, I’m able to achieve more and finish jobs I am less jumpy, and feel calmer. However when I do panic it is getting more intense and harder to control. I feel that finding PDA is a life changing discovery and explains so much.”

[96]On 14 October 2022, Ms Powell had a catch-up meeting with the Claimant. She followed up with an email to Lianne Chapman, a StaR Worker at Mind Mid and North East Essex (who had been assisting the Claimant) suggesting a discussion about the proposed support that the Respondent could provide. The email stated that the Respondent was running out of jobs for the Claimant in both the Top and the Bottom Stock Areas. They really needed the Claimant to work in the Plant Area. It noted the extent to which the Claimant had objected to working in the Plant Area. Her concern was that if they overcame the barriers identified by the Claimant, the Claimant would come up with others. It was hoped that the Respondent would go back to the accommodations that had currently been put in place and get something agreed between all parties. Current suggestions just needed to be finalised.

[97]At around this time, Bob Cree-Hay was engaged as a mediator to broker an agreement between the Claimant and the Respondent. He held meetings by telephone with the Claimant on 20 and 21 October 2022.

[98]On 24 October 2022, Ms Powell emailed the Claimant in the following terms: “I hope they can find enough jobs for you to do this week, but if not I’m afraid all we can suggest is that you take holiday or go on unpaid leave. At any time if you feel able to work in the plant area again, we will do all we can to support you to return”

[99]The Claimant’s case is that on or around 25 October 2022, there was a further incident where Ms Freeman told her off, whilst she was on the hard standing area. The Claimant says she was told off for correcting her colleague Louis, telling him he should be removing the netting off the plants being labelled – and that she raised her voice at the Claimant, snapping at her. The Claimant relies on a typed note she made the following day, which was not sent to the Respondent at the time. Significantly, the note does not record (as the Claimant now argues) that Ms Freeman raised her voice and snapped at her. If Ms Freeman did tell the Claimant off for criticising the way a colleague was working, then I find that this was a justified criticism. The Claimant’s own note records “I have apologised”. It was not her place to criticise a colleague. This was Ms Freeman’s role, if necessary, as the colleague’s line manager. In any event, I find that Ms Freeman would have spoken to the Claimant in an appropriate way. She would not have raised her voice or snapped at the Claimant.

[100]On 29 October 2022, Ms Chapman emailed Ms Powell to say that her support for the Claimant was ending because the Claimant was closed to therapy.

[101]I do not accept that in October 2022 Ms Baker Sinclair told the Claimant that the problems were all in her head, as the Claimant alleges. The Claimant is not specific as to the date or even the approximate date on which such a remark was made. There is no contemporaneous record in the documents that any such comment was made. In her witness statement she suggests this comment was made at a meeting on 18 June 2022 (paragraph 278). I prefer the evidence of Ms Baker Sinclair that she did not use such language. It is likely that the Claimant has misconstrued a comment made that her perception of events differed from the perception of everyone else.

[102]In November 2022, it was agreed that the Claimant and her managers would not communicate with each other on days when they were not scheduled to work or outside normal working hours. This had been put in place because the Claimant had been sending long messages outside of working hours.

[103]On 21 November 2022, Ms Freeman did contact the Claimant on a day when she (Ms Freeman) was not due to be at work. She did so to communicate the tasks that the Claimant had to carry out that day, in circumstances where all three of the Claimant’s normal line managers were absent on leave. Shortly after this, the Claimant messaged Ms Freeman on her day off and in the evening. When this was pointed out to the Claimant, she apologised in her response to Ms Freeman.

[104]On 23 November 2022, the Claimant was told by Mrs Mackintosh needed to make Christmas wreaths when the previous day she had been told by Ms Freeman that there were already enough. The Claimant found this change of plan particularly stressful. She took a mental health half day’s absence as a result.

[105]On 8 December 2022, the Claimant emailed Ms Baker Sinclair to tell her that she had just had her autism assessment and she had been diagnosed as high functioning autistic. She said that she would forward the report when it was available. The subsequent report dated 13 December 2022 confirmed this diagnosis as well as recording that the Claimant suffered from Anxiety and Depression.

[106]On 13 December 2022, the Claimant messaged Ms Freeman about the mediation process. She said she feared it was a way of getting rid of her.

[107]On 20 December 2022, the Claimant signed a Mediation Agreement with Megan Freeman and Tanya Mackintosh following the mediation process conducted by Bob Cree-Hay. By that stage, Mr Cree-Hay had spent significant time with the Claimant and with Ms Freeman and Mrs Mackintosh individually by video (or in the Claimant’s case, by telephone) as well as two in-person days of mediation on 8 and 28 November 2022. Getting to this point had not been straightforward. On 12 December 2022, the Claimant had emailed Mr Cree-Hay to say that she would not be signing a mediation agreement. One of her concerns was the suggestion that she work on ornamental trees. Her difficulty here was that they were arranged alphabetically and she did not know their names. Given the Claimant’s reference to the ornamental trees being arranged alphabetically, the difficulty appears to have been significantly as a result of her dyslexia, rather than the conditions on which she relies as disabilities in these proceedings.

[108]Something appeared to have changed between 12 December 2022 and 20 December 2022 to prompt the Claimant to sign the agreement. There are no contemporaneous documents that explain why she was willing to sign the agreement by 20 December 2022. Her explanation in her witness statement is that she was forced to sign the mediation agreement. She felt that unless she signed the mediation agreement, she would be sacked. Whatever her perception, she was not forced to sign this document and was not at risk of being sacked if she refused. The Respondent was entitled to take her signature as her agreement that she considered the terms of the agreement acceptable.

[109]The Mediation Agreement recorded that the parties felt that the contents of the agreement represented a set of reasonable adjustments aimed at minimising the disadvantage that the Claimant was experiencing. As part of the reasonable adjustments, it was agreed that the Claimant could reasonably be expected to work on four work packages within the Plant Area. These were in the following areas: Ornamental Trees, Bamboo, Topiary and Specimens. Following further discussions, she would initially be allocated specific responsibilities in the Bamboo and Topiary areas. Her work in these areas would be reviewed and she would then be allocated specific responsibilities in the areas of Ornamental Trees and Specimens.

[110]The Mediation Agreement also contained the following clause: “Notwithstanding the reasonable adjustments outlined at paragraph 4, the requirement for routine task allocation, work directions, feedback, performance reviews and guidance as to standards are not affected by this agreement and these will continue to be carried out and completed in accordance with the standing policies, procedures and instructions operated by Perrywood.”

[111]In this paragraph the Claimant was accepting she would be held to the Respondent’s normal standards and would be provided with feedback and performance reviews as were applied to other Perrywood employees. She was also accepting, although this was not stated as clearly as it might have been, that she could be allocated other routine tasks and given directions as to how this work should be carried out. These tasks could be allocated to her at any point and did not have to await full implementation of the reasonable adjustments first.

[112]It was agreed that an HR manager would arrange an implementation meeting to confirm arrangements; receive a briefing on the proposed use of the PANDA framework to implement the adjustments; and agree a timetable for review and amendment of the adjustments where appropriate. PANDA was an acronym that summarised what the PDA Society regarded as helpful approaches in dealing with someone with this type of autism. Under the agreement, the Respondent did not accept that the Claimant was necessarily correctly labelled as fitting the PDA profile.

[113]On about 23 December 2022, the Claimant messaged Ms Freeman, writing “We’ve come so far, but it is still so fragile. We need to keep communicating and moving forwards”. She added “I know that I will always have trust issues with you and live in fear of being told off, but I don’t think that will ever change. I know that as we build, the anxiety should decrease”.

[114]On 2 January 2023, Ms Freeman messaged the Claimant to tell her that there had been a change of plan. Due to the good weather, they would now carry out the stock take on that day which had been planned for another day. The Claimant’s original response was “okay” but an hour later she sent a further response saying she was panicking and she would not be able to assist with the stock take.

[115]On 3 January 2023, the Claimant and Ms Freeman met for their weekly catch up. The Claimant stated that communication was not good but even when prompted was not able to give any examples.

[116]On 9 January 2023 the Claimant sent an email asking to work in a different area the following day, apart from the barn, which is where she been asked to work. She did not give a reason for her request. Ms Freeman responded that she would like her to work in the barn. It is unclear whether the Claimant worked in the barn on 10 January 2023.

[117]On 10 January 2023, the Claimant and Ms Freeman and Ms Sinclair Baker met to discuss the adjustments which were set out in the Mediation Agreement. In answer to the question “What is going well” she responded: “Nothing is going well”.

[118]On 13 January 2023 there was a reasonable adjustments implementation meeting which was attended by Nathan Whitbread. Mr Whitbread is a Neurodivergent Coach. He attended the session to provide training on the PANDA model to assist the parties whilst discussing how to implement the reasonable adjustments.

[119]Mr Whitbread pointed out to the Claimant that she would always need to consider the bigger picture and health and safety considerations. He gave the example of different weather conditions, saying that she might have to change to fit in with the rest of the team. She should always assume the best intentions to keep her safe. The Claimant was unable to explain what it was about the Respondent’s conduct that was upsetting her and was making her feel unsafe, although she was keen to stress that the Respondent had damaged her mental health. The Claimant says she can remember very little about that meeting because she had what she describes as an amygdala attack.

[120]On 14 January 2023, Mrs Mackintosh put the Claimant’s tasks onto her App for her to do the following day. These included “sweep trees” and “see Cerys about loading pit and pieris”. The latter was apparently a reference to shrubs. The Claimant felt that what she was being asked to do went beyond the contents of the Mediation Agreement.

[121]On 3 February 2023, the Claimant messaged Ms Freeman to say that she was panicking. From the messages in the bundle, I find that Ms Freeman offered to speak to the Claimant, messaging her to say: “If you want to catch up about anything let me know”. The Claimant responded: “Yes there is so much I need to talk about but I just can’t”. The Claimant’s notes from this day indicate that the day started with only one job added to her on the app and two more were added during the day. They were finished by 3pm.

[122]On 4 February 2023, the Claimant was allocated her tasks for the morning verbally on the morning, rather than on the app the previous day. She finished the tasks she had been allocated by around 12.30pm. Around lunchtime, a task involving fruit trees was added to the Claimant’s App. The Claimant felt that this was contrary to what had been agreed in the Mediation Agreement and discussed in the implementation meeting. As a result, she became ill and pressed the red button on her Brain in Hand app. She spoke to the adviser who was able to discuss with her what was making her stressed.

[123]On 7 February 2023, the Claimant and Ms Freeman met again for their weekly catch up at 8:45am. The Claimant was reminded not to contact Ms Freeman outside normal working hours. She had texted at 7.50am the previous day because her jobs had not been added the day before. This is a day on which the Claimant alleges that she was not allocated her jobs for that day through the app the previous day. I reject that allegation. If this was the case, the Claimant would have raised it during that weekly catch up meeting. Because it was not recorded in the detailed meeting notes, it is unlikely that the Claimant raised it.

[124]On 11 February 2023, the Claimant contends that Ms Freeman suggested that Buxus suggested putting Buxus plants on the watering system. This was a place that the Claimant considered was wrong. The Claimant contends that when she tried to point this out to her, Ms Freeman raised her voice, would not let the Claimant talk, and after a heated discussion she walked off. The Claimant has not identified any contemporaneous documentary evidence to support her recollection as to what took place. Ms Freeman cannot recall such an incident taking place. I do not accept that Ms Freeman conducted herself as the Claimant alleges. She may have been frustrated if the Claimant was telling her that what she was doing was wrong. On balance it is unlikely that Ms Freeman raised her voice and refused to let the Claimant speak and then engaged in a heated discussion with the Claimant before walking off. If she did so, then the Claimant is likely to have complained about this to others or recorded this incident in a contemporaneous email or text message. Such conduct by Ms Freeman is not consistent with the way I have found she managed the Claimant on other occasions.

[125]On 13 February 2023, there was a meeting between the Claimant and Ms Mackintosh to discuss the reasonable adjustments. They discussed that the Claimant had been working well in topiary and specimens and discussed moving onto trees.

[126]The next weekly catch up happened on 14 February 2023. The Claimant was positive about how her work had gone at the weekend. She said she felt she needed to work on her communication. When Ms Freeman asked her what she could do to help her with this, the Claimant responded: “Just talk to me, I see you talking to others and having a laugh and I can't do that. I think I'm jealous.” She said that the jealously made her feel low. Ms Freeman encouraged her to speak to her counsellor about this, or if it was reaching a point of crisis talk to someone else such as a Mental Health First Aider, use the Brain in Hand App or ring the 111 crisis line. No complaint was made about the way that the reasonable adjustments were working.

[127]A further weekly meeting took place on 20 February 2023. She did not make any complaint about reasonable adjustments. The Claimant said she did not want the Respondent to do anything if she had adjusted her mood badge to the lowest setting. This was a badge she started using in February 2023, which she placed on her lunch bag in the locker room. Each day she would adjust the badge to indicate the particular mood she was in on that particular day.

[128]On 21 February 2023, Ms Freeman asked the Claimant to do a labelling task that she had also assigned to two colleagues, Louis and David. She asked the Claimant to start at one end and the other two to start at the other end and for the two of them to meet in the middle. The Claimant took objection to being told how to do this task and to being assigned to doing it alongside colleagues, as she preferred to work alone. She also felt that Louis was unsuited to this task. She considered that the three of them should have been left to choose how the task should have been done – with the result that she would then have chosen to do the task by herself. As a result of the way that Ms Freeman had handled the situation, the Claimant chose to avoid Ms Freeman throughout the day. Whenever Ms Freeman went to speak to her, she walked away. She refused to do the Impulse delivery task allocated to her on the app. Later, the Claimant sent Ms Freeman a message saying that she did not want to be approached by Ms Freeman because she felt nervous. She said that over the last week Ms Freeman had put her down, questioned her ability and anything that she suggested was dismissed immediately. The tone of this email was at odds with the tone of the weekly catch up meeting the previous day. This is a day on which the Claimant argues that the jobs on the app were changed and there no ability to opt out of ornamental tree work. This is inconsistent with the contemporaneous documents. I do not accept the Claimant’s allegation as to what took place on this date.

[129]There were two further weekly catch up meetings between the Claimant and Ms Freeman, on 7 March 2023 and on 14 March 2023. At the meeting on 7 March 2023, Ms Freeman said she was struggling to find the balance between when to explain things in more detail and when not to. The Claimant said that she was waiting for a phone call from DWP and was hopeful they would provide her with more training. At the end of the catch-up meeting, there was a discussion about other work. The Claimant said that if she left the Respondent’s employment, she would become selfemployed. She said that she would not put herself through what she had experience at the Respondent and she hated Josh for leaving.

[130]On Monday 6 March 2023, the Claimant arrived at work to discover that the topiary arrangement she had done on Saturday 4 March 2023, as suggested by her weekend line manager, Cerys Sapsford, had been completely rearranged. In her witness statement she alleges she spoke to Ms Freeman about this who told her: “well you should have asked me and I would have told you how I wanted it”. I do not accept that this is how Ms Freeman responded. Such a response is not recorded in the Claimant’s notes of this incident, which appear at page 805 of the bundle.

[131]At the meeting on 14 March 2023, Ms Freeman said that she noted that the Claimant was having her lunch in the shower room. She said that this was not hygienic or appropriate. Ms Freeman was justified in raising this with the Claimant. The Claimant’s response was “Don’t tell me I can’t do something”.

[132]On Friday 17 March 2023, Ms Baker Sinclair received a letter from Access to Work informing her that the Claimant would be provided with three two-hour co-coaching sessions and bespoke disability awareness training. The cost of this support would be fully funded by Access to Work.

[133]The same day, within 30 seconds of the Claimant’s arrival at work, she had what she described in an email two days later as a massive meltdown in which her “blood was boiling”. This had been triggered because someone had been working in “her area” the previous day, when she had taken a day off. That person had moved the plants around. She said that at one point she was heading upstairs to resign, but started to panic and could not make it upstairs. At one point she was seen to be on the floor and was being attended by Mental Health First Aiders. Later Ms Baker Sinclair spoke with the Claimant. The Claimant told her: “I need to quit”. I do not find that Ms Baker Sinclair told the Claimant that “Megan is not going anywhere”. There was then a discussion about the jobs for the following day being allocated to the Claimant on the app.

[134]At the point when this conversation took place, Ms Baker Sinclair did not realise that Ms Freeman was about to resign from the Respondent’s employment, as the Claimant has alleged in the course of her evidence.

[135]The Claimant messaged at 15:41 to set out her position in relation to the trees in the plant area. She said that she panicked, she was not ready, she had asked that she not be asked to do that job and yet Ms Freeman had added it again. She ended her message “No one is listening to me”. Although this message was read and not responded to, Ms Baker Sinclair did speak to the Claimant that afternoon. Having done so, the Claimant was a lot calmer and happier. She did not brush her off. The Claimant did not ask Ms Baker Sinclair to investigate anything. She did not put any such request in writing.

[136]On Saturday 18 March 2023, the Claimant was at work when there was another incident. The Claimant had been tidying, sweeping and weeding an area under a shade canopy due to the poor weather. The weather improved and everyone who had been doing undercover jobs returned to their normal activities. Ms Freeman asked the Claimant to do the original job she had been assigned, namely working on ornamental trees, and to start this after lunch. There is a factual dispute as to whether Ms Freeman told her that this job was the only option and that if she could not do it then she should go home sick. This is denied by Ms Freeman. I prefer Ms Freeman’s version of what took place.

[137]The Claimant messaged to say she could not work on the trees and was still in the toilet. Ms Freeman offered to provide someone else to help the Claimant with the task, but this offer was declined. The Claimant asked Ms Freeman to sack her. Ms Freeman explained that if she was not fit to work, then she should go home; but that if she was remaining at work, there were jobs for her to do. She should take time first to compose herself before heading back to work. This was a calm conversion, which took place as they both sat side by side on a bench. The Claimant was resting her head on Ms Freeman’s shoulder and Ms Freeman had her arm around her. The Claimant repeatedly asked Ms Freeman to sack her. It is likely she suffered a panic attack at some point whilst at work, although it is not possible to determine when this took place.

[138]The Claimant got up at one point and announced that she was quitting. Ms Freeman asked her if she wanted further time to think about it, and offered for her to go home and come back on Monday when the two of them could talk about it. The Claimant walked out of the garden centre at about 1.30pm. She went to her car and added three jobs on her App – “Leave”, “Quit Job”, and “Never Come Back”. She ticked the first two as completed, but not the third.

[139]The following morning, Sunday 19 March 2023, the Claimant sent an email to Ms Baker-Sinclair, Mrs Mackintosh and Ms Powell resigning from her role. She said that, due to her neurodiversities, she could no longer continue working at the Respondent because her managers did not understand her disability. She referred to having experienced two panic attacks in 24 hours. From the context, this was a reference to the panic attack she had had on 17 March and the further panic attack she had suffered on 18 March 2023.

[140]At the same time, the Claimant sent a further email headed “Report 18/3”. She set out her version of events as to what had taken place which had prompted her to walk out of the garden centre in the middle of her shift. She said that she had panicked when Ms Freeman had assigned her a task involving trees in the Plant Area. She wrote that despite her having to go to the toilet to calm down, Ms Freeman had insisted that she did the task, even though she had repeatedly said that she could not.

[141]On 21 March 2023, Ms Powell wrote to the Claimant accepting her resignation. The following day an Exit Interview was carried out with the Claimant. She gave the reason for leaving as “accommodations for disabilities not followed and given no choice”. In answer to the question “Are there any other comments that you would like to make about your experience as a Perrywood team member?” she replied “Because of my manager, I’ve tried to take my life! Perrywood has destroyed me. I was not believed or trusted even though I have a medical diagnosis, my manager was insisting that I do a job in an area that causes me to panic and would have led to a panic attack, I had no other option but to walk away from the job that I truly loved”.

[142]The following day, 23 March 2023, the Claimant instigated ACAS Early Conciliation.

[143]On 24 March 2023, the Claimant emailed Ms Powell, reinforcing the reason for her resignation and confirming that she would be claiming disability discrimination and constructive dismissal. Her email stated that “this is nothing personal and I love you all and love Perrywood, this is the last thing I wasn’t, but I have to do this”. She added that Ms Freeman “gave me no option on Saturday and I had to leave.” Whilst she referred to how upset she was, she gave no indication she was having second thoughts about her resignation. Rather, she was reinforcing it.

[144]On 31 March 2023, Ms Freeman resigned from her role with the Respondent.

[145]On 6 April 2023, the Claimant emailed Ms Powell as follows: “I am so sorry to do this, but I just can’t stop crying and I miss it so much. Is there any way that I could come back? I just can’t see a future not being there”. This was 16 days after her original resignation had been accepted by the Respondent.

[146]On 14 April 2023, she messaged Mrs Mackintosh saying that since she had emailed Ms Powell to ask for her job back, she had stopped crying “clinging to the hope that I would be back soon”. Her email to Mrs Mackintosh was prompted by Ms Powell writing to her on 14 April 2023 saying that they would not allow her to revoke her resignation and final payments would be made at the end of the month.

[147]The Claimant compares the way that the Respondent responded to her resignation with the way that it responded to the resignation of Thanapan Pennick. Ms Pennick resigned in 2019 shortly after her manager Dan left, but at the same time as doing so told her new manager that she really wasn’t sure. As a result, her new manager suggested she take some time off to think about it rather than make a quick decision she might later regret. When she returned to work, she withdrew her resignation.

The issues

[148]The issues are set out in the attached Appendix as amended at the start of the hearing and again during closing submissions. Legal principles Constructive unfair dismissal

Legal principles

[149]The Claimant must establish that her resignation amounts to a dismissal. This requires her to establish that she resigned at least in part in response to a fundamental breach of contract by the Respondent. She argues that the Respondent was in breach of the implied term of mutual trust and confidence. If the Respondent was in breach of this term, that would amount to a fundamental breach of contract. This is a term that the Respondent would not, without reasonable and proper cause, conduct itself in a manner which is likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee (Malik v BCCI [1997] 3 All ER). The Claimant is entitled to rely on individual incidents which are said to have had this effect. She is also entitled to rely on a course of conduct which when considered as a whole has had the effect of destroying or seriously damaging the relationship of trust and confidence. The incident which amounts to the last straw in such a course of conduct must have made more than a trivial contribution to the totality of the conduct (London Borough of Waltham Forest v Omilaju

[2005] ICR 481

). If there is a fundamental breach of contract, the Claimant must not have affirmed the continuation of the employment relationship before her resignation by conduct which is only consistent with the continuation of the contract. What conduct is capable of amounting to an implied affirmation was discussed by HHJ Auerbach in Leaney v Loughborough University

[2023] EAT 155

at paragraphs 18-23.

[150]The statutory definition of disability is contained in Section 6 Equality Act 2010: (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

[151]Section 212(1) of the EA 2010 defines “substantial” as “more than minor or trivial”.

[152]Schedule 1 to the Equality Act 2010 sets out the circumstances in which the effect of an impairment is long term: 2(1) The effect of an impairment is long-term if—(a) it has lasted for at least 12 months,

(b) it is likely to last for at least 12 months, or

(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

[153]The Government has issued statutory guidance on the definition of disability. This must be taken into account by Tribunals in assessing whether the definition has been satisfied. It gives examples of what it would, and what it would not, be reasonable to regard as substantial adverse effects on normal day-to-day activities, whilst emphasising that these are indicators and not tests. These include: “Persistently wanting to avoid people or significant difficulty taking part in normal social interaction or forming social relationships” (Appendix) “ability to understand human non-factual information and non-verbal communication such as body language and facial expressions”, because they “finds it hard to understand non-verbal communications such as facial expressions, and non-factual communication such as jokes” (after D17)

[154]In Stedman v Haven Leisure Limited

[2025] EAT 82

, the EAT helpfully clarified (from the headnote): “In considering whether someone has a disability within the meaning of section 6 of the EA 2010:(i) it is sufficient if the claimant has a mental or physical impairment that has a substantial (more than minor or trivial) adverse effect on just one day-today activity;

(ii) the Tribunal must not weigh what a claimant cannot do against what they can do, either with reference to a single activity or generally in relation to all day-to-day activities; and,

(iii) in judging whether the adverse effect is substantial, the comparison is between the claimant as they are and as they hypothetically would be without the impairment”

[155]In the same case, Judge Stout gave the following guidance on the significance of a diagnosis of autism or ADHD at paragraphs 60 and 61: “60. Where a Tribunal has before it evidence of a clinical diagnosis of autism or ADHD, accordingly, then (unless there is some reason to doubt the reliability of that clinical judgment), the Tribunal must take that diagnosis into account not just as evidence that someone has a condition or impairment, but as evidence as to the impact of that impairment. The diagnosis means they have been judged by a clinician to have significant (i.e. clinically ‘more than minor or trivial’) difficulties with the areas of functioning covered by the diagnosis. 61. It does not, of course, follow that the Tribunal must accept the clinician’s view as answering the disability question under the Act. The Tribunal still needs to consider what it was that led the clinician to make the diagnosis in the claimant’s case, and to make findings about the claimant’s ability to carry out day-to-day activities. If the claimant is not a reliable narrator, that may undermine any clinical opinion that is based on the claimant’s account. However, as regards something like social interaction and communication, if a clinician has judged a claimant’s difficulties in that respect to be significant enough to merit a diagnosis of autism, a Tribunal will need to engage with that view in its reasons when dealing with the question of ‘substantial adverse effect’.” Direct disability discrimination

[156]Section 13 of the Equality Act 2010 is worded as follows: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[157]The Claimant seeks to compare herself against how a hypothetical non-disabled employee would have been treated, who was in all other respects in a comparable position to the Claimant.

[158]The focus is on the mental processes of the person that took the decisions said to amount to discrimination. The Tribunal should consider whether that person was consciously or unconsciously influenced to a significant (ie a non-trivial) extent by the Claimant’s disability. Their motive is irrelevant.

[159]Section 136(2) of the Equality Act 2010 is worded as follows : (2) If there are facts from which the Court could decide in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred; (3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[160]Guidance on the burden of proof was given by the Court of Appeal in Igen v Wong

[2005] ICR 931

. This guidance has subsequently been approved by the Court of Appeal in Madarassay v Nomura International plc

[2007] ICR 867

and by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

(at paras 22-32).

[161]The burden of proof starts with the Claimant. It is for the Claimant to prove facts from which the Tribunal could infer, in the absence of a satisfactory explanation, that her treatment was in part the result of her disability.

[162]In order for the burden of proof to transfer from the Claimant to the Respondent, it is well established that it is insufficient for the Claimant merely to show a difference in status and detriment treatment (see Madarassay at paragraph 54). To shift the burden of proof a Claimant must also prove something more. That is, in the present case the Claimant must prove facts from which the Tribunal could infer that there is a connection between her disability and her treatment, in the absence of a nondiscriminatory explanation.

[163]If such facts are established, then the burden of proof transfers to the Respondent to establish on the balance of probabilities that the protected characteristic formed no part of the reasoning for the Claimant’s treatment. Discrimination arising from disability

[164]Section 15 Equality Act 2010 is worded as follows:(1) A person (A) discriminates against a disabled person (B) ifa. 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.

[165]The first issue for the Tribunal to assess is whether the Claimant’s treatment was influenced to any significant extent by any consequences of the disability. This requires a focus on the reasoning in the mind of the person making the decision. The Tribunal needs to consider the conscious or unconscious thought processes of the alleged discriminator, keeping in mind that their actual motive in acting as they did is irrelevant. 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 (Pnaiser v NHS England

[2016] IRLR 70

at paragraph 31).

[166]The second issue, namely whether the reason/cause is “something arising in consequence of B’s disability” was explained as follows Pnaiser at paragraph 31: “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. […] This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.”

[167]In York City Council v Grosset

[2018] ICR 1492

, the Court of Appeal considered the extent of knowledge that was required under Section 15. In short, there is none beyond actual or constructive knowledge of the disability itself. If there is a causal link between the consequences of the disability and the unfavourable treatment, it is not necessary that the alleged discriminator knew of that connection (see paragraph 39).

[168]If the unfavourable treatment was influenced by any consequences of the disability, then it is for the Respondent to show, under Section 15(1)(b) on the balance of probabilities that the decision was justified. That requires that the Tribunal form its own assessment of whether the unfavourable treatment was a proportionate means of achieving a legitimate aim. This is a different analysis from the range of reasonable responses approach required when considering an unfair dismissal claim.

[169]So far as legitimate aim is concerned, the EHRC Code provides that it “should be legal, should not be discriminatory in itself, and must represent a real, objective consideration. Reasonable business needs and economic efficiency may be legitimate aims, but solely aiming to reduce costs is not [4.28 & 4.29].

[170]In assessing proportionality, the Tribunal must assess whether on a fair and detailed analysis of the working practices and business considerations involved, the decision was reasonably necessary in order to achieve the legitimate aim (Hardys & Hansons Plc v Lax

[2005] ICR 1565

[171]There must be an assessment of “the balance between the discriminatory effect of the measure [or treatment] and the legitimate aim” (Harvey, Industrial Relations and Employment Law paragraph 338.03). Failure to make reasonable adjustments

[172]Section 20(3) Equality Act 2010 provides: “… 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”

[173]Section 21 Equality Act 2010 provides:(1) A failure to comply with [this] 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.”

[174]The Tribunal must assess whether the Respondent applied a provision, criterion or practice which placed the claimant at a substantial disadvantage in comparison to those employees not sharing her disability. If so, the duty to make reasonable adjustments is engaged. The Tribunal must then consider whether a reasonable adjustment might have eliminated or reduced that disadvantage.

[175]Paragraph 6.10 of the EHRC Code provides: “The phrase [PCP] is not defined by the Act but should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, or qualifications including one-off decisions and actions …”

[176]In Ishola v Transport for London

[2020] IRLR 372

Simler LJ discussed the extent to which the words ‘provision criterion or practice’ could apply to one off acts. She said “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 … the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply” (paragraph 36).

[177]She added (at paragraph 38): “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.”

[178]In order for the disadvantage suffered by the employee to be “substantial” it must be more than minor or trivial: Griffiths v Secretary of State for Work and Pensions

[2017] ICR 160

at paragraph 21.

[179]The substantial disadvantage must be “in comparison with persons who are not disabled”. This requires a comparative exercise. However, there is “no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person’s circumstances … rather the matter ought to be measured by comparison with what the position would be if the disabled person did not have a disability” (Sheikholeslami v University of Edinburgh

[2018] IRLR 1090

at paragraphs 48 and 49).

[180]Paragraph 20 of Schedule 8 to the Equality Act 2010 is worded as follows: An employer is not subject to a duty to make reasonable adjustments if the employer does not know and could not reasonably be expected to know … that the employee has a disability and is likely to be placed at a disadvantage.

[181]In Secretary of State for Work and Pensions v Alam

[2010] IRLR 283

(EAT) at paragraph 17, Lady Smith stated that the Tribunal ought to ask itself two questions:a. First, did R know both that C was disabled and that his disability was liable to disadvantage C substantially by reason of the impugned PCP?

b. Second, and if the answer to the first question is “no”, ought R to have known both that C was disabled and that his disability was liable to disadvantage C substantially by reason of that PCP?

[182]In Newham Sixth Form College v Saunders

[2014] EWCA Civ 734

at paragraph 14, Laws LJ said as follows: ''the nature and extent of the disadvantage, the employer's knowledge of it and the reasonableness of the proposed adjustment necessarily run together. An employer cannot, as it seems to me, make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and extent of the substantial disadvantage imposed upon the employee by the PCP.'”

[183]The burden of proof is on the claimant to establish the existence of the provision, criterion or practice and to show that it placed him at a substantial disadvantage - see Project Management Institute v Latif

[2007] IRLR 579

at paragraph 45. In other words, to establish that the duty to make reasonable adjustments has been engaged.

[184]Thereafter the onus remains on the claimant to identify the potential reasonable adjustments with a sufficient degree of specificity to enable the Respondent to address them evidentially and the Tribunal to consider the reasonableness of providing them. The claimant must establish not only that the duty has arisen, but that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. At that point where the claimant has identified one or more potential reasonable adjustments, the burden of proof is reversed. The Respondent must then show, on the balance of probabilities, that the adjustment could not reasonably have been achieved – Latif at paragraphs 53-54.

[185]The reasonableness of the steps to be taken to avoid the disadvantage is to be determined on an objective basis: Griffiths v Secretary of State for Work and Pensions

[2017] ICR 160

at paragraph 73.

[186]Further guidance as to the considerations that are relevant in assessing reasonableness is provided in paragraph 6.28 of the EHRC Code. These are “whether taking any particular steps would be effective in preventing the substantial disadvantage; the practicability of the step; the financial and other costs of making the adjustment and the extent of any disruption caused; the extent of the employer’s financial or other resources; the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work) and; the type and size of the employer”. Examples are also given in paragraph 6.33.

[187]The reasonable adjustments duty is “primarily concerned with enabling the disabled person to remain in or return to work with the employer”. As a result, it would be a “very rare case indeed” where merely giving higher sick pay beyond the end of the contractual entitlement (and therefore than would be payable to a non-disabled person) would be considered necessary as a reasonable adjustment” (O’Hanlon v Commissioners for HR Revenue & Customs

[2007] IRLR 404

at paragraph 67). Harassment

[188]So far as is material, section 26 of the Equality Act 2010 is worded as follows: (1) A person (A) harasses another (B) ifa. 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 (1)(b), each of the following must be taken into accounta. The perception of B; b. The other circumstances of the case c. Whether it is reasonable for the conduct to have that effect

[189]In relation to a claim for harassment under Section 26, it is open to a Tribunal to find that conduct was unwanted even if a claimant chooses to stay in employment and even if a claimant chooses not to object whether formally or informally (Munchkins Restaurant Ltd v Karmazyn and others EAT 0359/09). The Equality and Human Rights Commission : Code of Practice on Employment (2011) states as follows : 7.7. Unwanted conduct covers a range of behaviour, including spoken or written words or imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour. 7.8 The word ‘unwanted’ means essentially the same as ‘unwelcome’ or ‘uninvited’. ‘Unwanted’ does not meant that express objection has to be made to the conduct before it is deemed to be unwanted. A serious one-off incident can also amount to harassment.

[190]When considering whether a comment was related to a protected characteristic under Section 26 Equality Act 2010, this covers a wider category of conduct than conduct “because of a protected characteristic” under Section 13 Equality Act 2010. A broader enquiry is required involving a more intense focus on the context of the offending words or behaviour (Bakkali v Greater Manchester Buses (South) Limited t/a Stage Coach Manchester [2018]

UKEAT/0176/17

[191]In assessing whether the conduct met the proscribed threshold, Tribunals should not place too much weight on the timing of any objection (Weeks v Newham College of Further Education

UKEAT/0630/11

). Whether it was reasonable for the Claimant to regard treatment as amounting to treatment that violates her dignity or has an intimidating, hostile, degrading, humiliating or offensive environment is a matter for factual assessment of the Tribunal having regard to all the relevant circumstances, including the context (Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

). In that case the EAT said: “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.” Law on time limits

[192]Section 123 of the Equality Act 2010 is worded as follows: 1. Proceedings on a complaint brought within Section 120 may not be brought after the end of –a. The period of 3 months starting with the date of the act to which the complaint relates; or

b. Such other period as the employment tribunal thinks just and equitable 2. …. 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.

[193]Under Section 123 of the Equality Act 2010, proceedings on a complaint may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates. The three-month time for bringing Tribunal proceedings is paused during early conciliation such that the period starting with the day after early conciliation is initiated and ending with the day of the early conciliation certificate does not count (Section 140B(3), Equality Act 2010). If the time limit would have expired during early conciliation or within a month of its end, then the time limit is extended so that it expires one month after early conciliation ends (Section 140B(4), Equality Act 2010).

[194]Conduct extending over a period is to be treated as done at the end of the period (Section 123(3) Equality Act 2010). There is conduct extending over a period if there is a continuing discriminatory state of affairs as opposed to a succession of unconnected or isolated specific acts. If so, then the three-month time period for bringing a claim only runs from the date on which the state of affairs ends (Metropolitan Police Commissioner v Hendricks

[2003] ICR 530

[195]If the claim has been brought outside the primary limitation period, then the Tribunal has jurisdiction to consider the claim if it was brought within such other period as the Tribunal considers just and equitable. Considering a claim brought outside the three-month time limit (as extended by the early conciliation provisions) is the exception rather than the norm. Time limits are exercised strictly in employment and industrial cases. The onus is on the Claimant to establish that it is just and equitable for time to be extended (paragraph 25 of Robertson v Bexley Community Centre (t/a Leisure Link)

[2003] IRLR 434

, CA).

[196]Factors which are almost always relevant to an exercise of the discretion are the length of and the reasons for the delay, and whether the delay has prejudiced the Respondent (Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

at paragraph 19). However: There is no … requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone 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 ought to have regard (Abertawe at para 25)

[197]It is not necessary for a Tribunal to consider the checklist of factors set out in Section 33 of the Limitation Act 1980, given that that Section is worded differently from Section 123 of the Equality Act 2010, so long as it does not leave a significant factor out of account. Submissions

[198]Both parties made oral closing submissions. In his closing submissions, the Respondent’s counsel referred to the following authorities:a. Kaur v Leeds Teaching Hospitals NHS Trust

[2019] ICR 1

b. Clements v Lloyds Banking Plc [2014] ICR D22

c. Willoughby v CF Capital Plc

[2012] ICR 1038

[199]It was during closing submissions that Respondent’s counsel raised whether the original claim included a complaint of disability discrimination in relation to the Claimant’s alleged constructive dismissal. This was added as an additional issue for the Tribunal to determine.

[200]In response, the Claimant had written down some points which she read out to the Tribunal by way of closing submissions. Conclusions Unfair dismissal

Conclusions

[201]The Claimant relies on eleven respects (numbered 2.1.1 to 2.1.11 in the List of Issues) which she argues individually or cumulatively breached the implied term of trust and confidence. I deal with each of them in turn. 2.1.1 Ms Freeman being aggressive to the Claimant on 12 July 2022

[202]Given my factual findings, the Claimant has not established this allegation. Ms Freeman was not aggressive to the Claimant. The way that she conducted herself towards the Claimant was not in breach of the Tailored Adjustment Agreement. In refusing to move inside to work in the barn in the heat of the day, she was disobeying an order from management relayed to her by Ms Freeman. Ms Freeman responded appropriately to this disobedience. 2.1.2 Issuing the Claimant with a disciplinary sanction for her conduct on 12 July 2022

[203]Given the way in which the Claimant had behaved on 12 July 2022 which had led to Ms Freeman’s grievance, the Respondent was fully entitled to instigate disciplinary proceedings against the Claimant and to impose a disciplinary sanction. I deal below with the separate complaint about the same incident where the Claimant is arguing that this amounted to discrimination arising from disability. 2.1.3 Ms Freeman unjustifiably told the Claimant off

[204]In the List of Issues, the Claimant lists nine occasions when she says that the criticism received from Ms Freeman was unjustified – the first is a repeat of issue 2.1.1, already dealt with above. On each occasion, her case is that Ms Freeman’s criticism was communicated verbally, rather than in writing. Therefore, in reaching my factual findings, I have had to reconstruct the circumstances in which Ms Freeman spoke to the Claimant from witness recollection and from other documents. Where there is a conflict between the evidence of the Claimant and that of Ms Freeman, I have preferred the evidence of Ms Freeman. She was assigned to line manage the Claimant from the outset of her employment with the Respondent. She inherited a protocol for doing so in the Tailored Adjustment Agreement which had been effectively agreed before her arrival. She had her own style of management which was different to that of her predecessor Josh Eames. I have found that she did her best to manage the Claimant as she got to know her and tried different management techniques to enable her to communicate with the Claimant effectively.

[205]There were three essential difficulties that Ms Freeman faced in managing the Claimant. The first was that the Claimant had very particular views as to how and where she should work and was not naturally open to trying different methods of working. The second was that the Claimant wanted to work by herself and did not want to communicate with her colleagues. The third was that the Claimant was particularly sensitive to criticism, such that any criticism took on a wholly disproportionate significance for the Claimant and was taken extremely personally by her. As a result, the Claimant’s perception was that effectively any criticism of her work was unjustified.

[206]That is why matters came to a head on 12 July 2022 and why Ms Freeman lodged a grievance against the Claimant later in July 2022. I accept that the contents of Ms Freeman’s grievance provide an accurate account of how she had managed the Claimant to that point.

[207]I have addressed the circumstances of each of the nine occasions of alleged unjustified criticism in my factual findings. For those reasons, any criticism expressed by Ms Freeman was justified. 2.1.4 Ms Baker Sinclair told the Claimant in October 2022 that the problems were all in her head

[208]I have rejected this allegation. Ms Baker Sinclair did not tell the Claimant that the problems were all in her head, whether in October 2022 or at all. 2.1.5 Changing the Claimant’s jobs on the day and permitting her to opt out of ornamental tree work if her anxiety levels were too high, in breach of the Mediation Agreement

[209]The Claimant’s case is that this was done on six occasions between 2 January and 18 March 2023 inclusive – namely on 2 January, 3 February, 4 February, 7 February, 21 February and 18 March. There was nothing in the wording of the Mediation Agreement that specified that the Claimant’s jobs could not be changed on the day where the needs of the business required it. The Claimant has not proved that on any of these occasions the jobs she was allocated could and should have been allocated the previous day; or that there was no need for her to be asked to do them on that day given the needs of the business.

[210]It was reasonable for the Respondent to decide on the morning of on 2 January 2023 that the stock take should be carried out day, given the good weather, a day earlier than originally scheduled. That decision required all staff including the Claimant should engage in different tasks from those that they had originally been assigned to undertake. It was reasonable in these circumstances to expect the Claimant to assist with the stock take.

[211]As to 3 February 2023, I accept that two additional tasks were added to the Claimant’s app on the day. The notes confirm that all her jobs including the additional tasks were finished by 3pm. There is no detail as to the types of jobs which were added and whether the tasks could and should have been allocated earlier. The Claimant was able to complete the tasks during her normal working hours. I do not find that allocating the Claimant work in this way was inappropriate.

[212]I reach the same conclusion in relation to 4 February 2023. The Claimant has not shown that the particular tasks she was allocated could and should have been allocated earlier.

[213]I have rejected the Claimant’s allegation that jobs were not allocated to the app on 7 February 2023, and also her allegation that on 21 February 2023 the jobs on the app were changed and there was no ability to opt out of ornamental tree work.

[214]As to events on 18 March 2023, I prefer Ms Freeman’s version of events. The Claimant was effectively given the option to opt out of ornamental tree work, in that she was told she could go home early and discuss matters with Ms Freeman the following Monday. She chose instead to announce she was resigning.

[215]In addition, the Mediation Agreement did not give her the right to opt out of ornamental tree work. Nor did it limit the types of tasks that the Claimant could be allocated. 2.1.6 On 20 December 2022, the respondent put in place an inappropriate communication bar during non-working hours meaning the claimant could not contact her manager on routine matters.

[216]The Mediation Agreement stated that “contact on work related matters is to be restricted to normal working hours (Monday – Sat 08:30 – 17:00 and Sun: 0930 (-8:30 in spring/summer) – 16:00”. It added “[The Claimant] is not to initiate or continue with previous communications out of working hours, on their days off or when on holiday”. This was an arrangement agreed by the Claimant in an attempt to restore an effective working relationship with Ms Freeman. It was one aspect of a wider agreement. It had been prompted by previous occasions when the Claimant had contacted Ms Freeman or other managers outside working hours.

[217]Because the Claimant had agreed to this restriction, this was not a restriction which, objectively speaking, can have any negative impact on the relationship of trust and confidence. It does not contribute to any extent to a course of conduct which destroys or seriously damages the relationship of trust and confidence. If on occasions Ms Freeman breached this arrangement by contacting the Claimant outside normal working hours, this is not a basis for concluding that the restriction was inappropriate. 2.1.7 Adding in two new areas of work (shrubs and fruit trees) to existing areas (topiary and bamboo) before the Claimant was ready and before it had been discussed with the Claimant

[218]There was nothing in the Mediation Agreement that prevented the Respondent from adding in new areas of work which would otherwise fall within the Claimant’s role, as already explained. The Claimant has not convincingly explained why it was inappropriate for her to be allocated shrubs and fruit trees when she was given the particular role she was employed to undertake, given the length of her experience in that role and given her particular health issues at the time. The mere fact that she objected when these were allocated does not demonstrate that the Respondent ought to have appreciated in advance that these tasks were inappropriate. The Claimant has not produced a Fit Note requiring that she not be allocated those tasks. Those tasks are not inconsistent with the terms of previous Occupational Health advice, the Tailored Adjustment Agreement and the Mediation Agreement. I am not persuaded that asking the Claimant to carry out these types of work itself destroyed or seriously damaged the relationship of trust and confidence or contributed to any extent to a course of conduct that had that effect.

[219]There was a discussion facilitated by Nathan Whitbread on 13 January 2023 to discuss implementation of the reasonable adjustments. This anticipated as set out in the mediation agreement that she would shortly be starting work on ornamental trees. There is no record that she objected to ornamental trees at that point. The weekly meeting between the Claimant and Ms Freeman allowed a two-way discussion as to how the reasonable adjustments were being implemented and what further tasks might be assigned. Having reviewed the notes of these meetings, I am not persuaded that there was a failure to discuss the addition of new areas of work. The Claimant is not correct to argue that the Mediation Agreement allowed her to refuse to do additional areas of work until she deemed she was ready. 2.1.8 Not giving the claimant choice as to jobs: as above regarding move into shrubs/fruit trees and on 18 March 2023 (plant area added to jobs)

[220]There was nothing in the Mediation Agreement which required the Claimant to be given a choice as to the jobs she should do on a particular day. 2.1.9 On 17 March 2023 Ms Baker Sinclair, when told by the claimant how upset she was and that she was close to resigning, said that Ms Freeman was not going anywhere and did not investigate what the claimant was complaining about (ie brushed the claimant off) including not replying to the claimant’s WhatsApp message.

[221]Ms Baker Sinclair did not say to the Claimant that Ms Freeman was not going anywhere. Nor did she fail to investigate the Claimant’s complaints. The Claimant did not ask her to carry out any investigation. However, she did respond verbally to the Claimant’s WhatsApp message sent that afternoon. As a result, I have rejected the factual basis for this allegation. 2.1.10 On 18 March 2023 Ms Freeman told the claimant to go home sick if the claimant would not do ornamental trees (the area the claimant struggled with), which the claimant then did.

[222]I have rejected the Claimant’s version of events as to what took place on 18 March 2023, preferring instead Ms Freeman’s version. Ms Freeman quite appropriately asked her if she was well enough to remain at work, gave her time to compose herself, and when she announced she would be quitting, offered that she go home for the remainder of 18 March 2023 to reflect on what she wanted to do. Therefore, this was not conduct which, objectively speaking, contributed to any extent to a reduction in the trust and confidence which the Claimant could have in the Respondent as her employer. 2.1.11 The claimant was directed to work in ornamental trees (the area the respondent knew she struggled with due to anxiety and, as regards after December 2022, which she said it had been agreed she could decline) on certain particular occasions: 26 July 2022, 24 August 2022, 12 September 2022, 27 September 2022, 4 October 2022, 5 October 2022, 6 October 2022, 11 October 2022, 13 October 2022, 14 October 2022, 17 October 2022, 19 October 2022, 25 November 2022, 12 December 2022, 3 February 2023, 4 February 2023, 19 February 2023; 20 February 2023, 21 February 2023, 4 March 2023, 7 March 2023, 10 March 2023, 17 March 2023 and 18 March 2023.

[223]Given the Claimant’s role, the Respondent was entitled to ask her to work in the ornamental trees section of the Plant Area, where there was work to be done in this section. This may not have been her preferred area, but it was for the Respondent as her employer to decide where she was best deployed. Between July 2022 and 12 December 2022, there was nothing to indicate that she should not be deployed to this area. There was no medical evidence indicating that this was unsuitable, nor was this contrary to the Tailored Adjustments Agreement. Therefore, if on the occasions specified, she was asked to work for at least part of the day in the ornamental trees area, this was not a breach of contract nor was it conduct that contributed to a course of conduct which destroyed or seriously damaged the relationship of trust and confidence.

[224]Under the Mediation Agreement, the agreed priority was for her to work on Bamboo and Topiary sections first. After an initial period, the position was to be reviewed and the parties would then discuss deployment into the Specimen area and the Ornamental Tree area. Consistent with the Claimant’s dates, the Claimant was not asked to work on Ornamental Trees between 20 December 2022 and 2 February 2023. This respected the priority which had been given to working in the other areas. However, it is a misunderstanding of the terms of the Mediation Agreement for the Claimant to assume that she could decide if and when she started work on Ornamental Trees. The Respondent was still entitled to ask her to work on Ornamental Trees where this was required by the needs of the business, subject to the reasonable adjustments previously agreed. I do not find that being asked to work on Ornamental Trees from 3 February 2023 onwards destroyed or seriously damaged the relationship of trust and confidence or contributed to a course of conduct that had that effect. Constructive unfair dismissal – conclusion

[225]Having reviewed each of the allegations relied upon as part of the Claimant’s constructive unfair dismissal claim, I do not find that any of them individually destroyed or seriously damaged the relationship of trust and confidence. Standing back and considering them as a whole, I also do not find that cumulatively they destroyed or seriously damaged the relationship of trust and confidence.

[226]The Claimant’s position is that the impairments she suffered satisfied the statutory definition of disability throughout her employment, but specifically at each point in time when she complains of disability discrimination. She relies on diagnoses of autism, depression and anxiety, as well as symptoms which she considered were the result of ADHD. She does not rely in these proceedings on symptoms said to have arisen from dyslexia.

[227]The Respondent accepts that the Claimant has been diagnosed with anxiety, depression and anxiety, and that as a result she satisfied the statutory definition of disability, at least from the point at which the diagnosis was made. It also accepts that it had actual or constructive knowledge from that date. Specifically, it accepts that it had actual knowledge of the depression being a disability from 3 September 2021; of the anxiety being a disability from the same date; and of her autism being a disability from 8 December 2022.

[228]Given that the Claimant’s factual allegations start in June 2022, the Respondent accepts that both that she was disabled by that point, and also that it had knowledge of her disability at that stage. There is a dispute as to whether the Claimant was disabled by reason of autism as at June 2022, and whether this was something that the Respondent knew or ought to have known.

[229]On 10 February 2022 the Claimant told the Respondent that her doctor had referred her for an autism assessment. She said she had filled in an online test and recorded “some fantastically high results”, which she thought was “so scary”. From this notification onwards, it ought to have been clear to the Respondent that the Claimant may well be diagnosed with autism.

[230]It is clear from my factual findings that the Claimant found communicating with others challenging throughout 2022 and this was well known to the Respondent. If her challenges with communication satisfied the definition of autism in December 2022, it is likely that similar challenges would have been present throughout 2022 and would have been evident to the Respondent. She was noted by Occupational Health at the start of September 2021 to have had symptoms of Rejection Sensitive Dysphoria. These symptoms persisted thereafter.

[231]The Respondent is correct that there is no evidence that the Claimant has ever been formally diagnosed with ADHD. However, the Tribunal’s focus must be on the nature and the extent of the impairment not on any specific diagnosis. The same Occupational Health assessment carried out on 3 September 2021 noted that the Claimant exhibited symptoms of ADHD. These symptoms were symptoms that remained broadly consistent from that point onwards.

[232]It is clear that throughout the period covered by her allegations of disability discrimination, she satisfied the definition of disability in that she found it challenging to communicate with her colleagues at work including receiving verbal instructions; she found it challenging when tasks changed at short notice; and she had particular difficulties in receiving any form of criticism. These features ought to have been evident to the Respondent in April 2022, when Mrs Mackintosh and the Claimant took part in a three-hour coaching session to consider how to resolve the particular challenges that the Claimant was experiencing. The Claimant’s difficulties were also recorded in the Tailored Adjustment Agreement dated 30 May 2022. Not only did this record that she experienced symptoms that were consistent with ADHD and RSD, but it recorded her difficulties in ways that I have summarised in my factual findings above as: “she was easily upset, overwhelmed and angered; that she experienced anxiety and was panicky especially in the Plant Area or in groups of people; that she was always in flight or fight mode and was easily startled; that she had difficulty reading and remembering names and that she never felt she was good enough”.

[233]These symptoms constituted a long-term impairment which had a substantial adverse effect on normal day to day activities, thereby satisfying the statutory definition of disability. These symptoms were well known to the Respondent. Therefore, the Claimant’s disability discrimination claims turn on whether there was discrimination in the various respects alleged by the Claimant. None of them fails on the basis that the Claimant did not have a disability or that this was not known nor ought it to have been known by the Respondent.

[234]Because she does not rely in these proceedings on symptoms arising from dyslexia, it may be important to establish whether the difficulties that the Claimant experienced probably were the result of dyslexia or the conditions which form the basis for her disability discrimination claim. Direct disability discrimination

[235]The only allegation of direct disability discrimination concerns the decision to refuse to allow the Claimant to withdraw her resignation. The Claimant seeks to compare the way in which she was treated with the way that Thanapan Pennick was treated. She was not disabled. She resigned in 2019 (not 2020 as the Claimant alleges in the List of Issues) but was allowed to withdraw her resignation.

[236]Ms Pennick is not an actual comparator for this purpose. The circumstances in which she resigned were materially different from the circumstances in which the Claimant resigned. She resigned in circumstances where her resignation was prompted by the departure of her line manager; and was accompanied with an expression of doubt as to whether she really wanted to resign. She was encouraged to take time off to think about it further. Having done so, she changed her mind and she was permitted to retract her resignation. By contrast, the Claimant had told colleagues she was thinking of resigning the day before she did resign. She had confirmed her intention to resign in an Exit Interview held on 22 March 2023, explaining it as prompted by impact that her manager had had on her mental health.

[237]Because of the extent of the differences between Ms Pennick’s resignation and that of the Claimant, Ms Pennick is not an evidential comparator that provides any basis for inferring how a hypothetical non-disabled employee in the Claimant’s position would have been treated. There are no other factual findings from which an inference could be made that if the Claimant had not had a disability, then her email of 6 April 2023 would have caused the Respondent to allow the resignation to be withdrawn. The Claimant has not identified any such findings apart from her status as a disabled person. As a result, the burden of proof does not shift to the Respondent to prove a non-discriminatory explanation. In any event, I accept the non-discriminatory reason given by Ms Powell in her witness statement, namely that it was clear that the Claimant was unhappy at work despite the efforts that the Respondent had made to help her to cope with the requirements of her role.

[238]Therefore, the direct disability discrimination complaint fails.

[239]Because I have found that there was no constructive dismissal, I reject the allegation that this was also an act of disability discrimination. Discrimination arising from disability

[240]There are three allegations of discrimination arising from disability. 1. Disciplinary warning

[241]The first relates to the disciplinary warning that the Claimant received in September 2022 for her conduct towards on 12 July 2022. The Claimant’s argument is that this disciplinary warning was discrimination arising from disability because the Respondent did not take into account the Claimant’s autism. In short, the Claimant contends the conduct which prompted the warning was influenced by her communication issues and her difficulty in being understood.

[242]In its disciplinary outcome, the Respondent regarded the Claimant’s misconduct as insubordination because she raised her voice and spoke in a disrespectful manner towards Ms Freeman in circumstances where it was considered she was being deliberately uncooperative. The disciplinary outcome letter discusses the Claimant’s argument that the way she had behaved was the result of her neurodiversities.

[243]I accept that the way that the Claimant responded to Ms Freeman was at least in part the result of her communication difficulties, and that these arose from her disability. The decision to punish the Claimant for this response was therefore conduct arising from her disability. The key issue to decide is whether the decision to punish the Claimant was a proportionate means of achieving a legitimate aim.

[244]The Respondent relies on two potential legitimate aims. The first is that the Respondent is entitled to take disciplinary action against any employee if it believes that there are issues with the employee’s conduct, pursuant to its Disciplinary Procedure. The second is that the Respondent had a duty to ensure the health and safety of its employees including in particular the Claimant, who health required to be safeguarded due to issues of heat; and Ms Freeman who suffered in consequence of the way she was treated by the Claimant.

[245]I accept that the Respondent has proved that it had these aims. I also accept that these are legitimate aims when deciding how to respond to the conduct of employees. I conclude that the decision to issue the Claimant with a disciplinary warning was a proportionate means of achieving the first legitimate aim in the particular circumstances that applied in relation to events on 12 July 2022. These particular circumstances were that the Claimant was given a reasonable instruction by Ms Freeman; she had disobeyed that instruction without good reason; her conduct had been influenced to some extent by her disabilities; the Claimant had up until that point a clean disciplinary record; and that the sanction was a written warning, rather than a final written warning or dismissal.

[246]I do not accept that imposing this disciplinary sanction was a proportionate means of achieving the legitimate aim of ensuring the health and safety of the Claimant from issues of heat. That was ensured by issuing the instruction that emanated from senior management and was relayed by Ms Freeman at the time that the heat was a threat to her health. It was not ensured by disciplining the Claimant around two months later.

[247]However, I do accept that imposing this disciplinary sanction was a proportionate means of achieving the legitimate aim of ensuring the health and safety of Ms Freeman. It is clear from the wording of Ms Freeman’s grievance that the Claimant’s behaviour was having an impact on her health. Taking disciplinary action against the Claimant and imposing a disciplinary sanction on her was a proportionate means of ensuring the health of Ms Freeman. It was a formal warning to the Claimant that she could not continue to behave as she had been, which it was hoped would modify her future behaviour and so avoid situations that were particularly stressful for Ms Freeman. 2. Comment ‘It’s all in your head’

[248]The second allegation of discrimination arising from disability is a factual allegation that in October 2022, Ms Baker Sinclair told the Claimant that it was all in her head. I do not accept that Ms Baker Sinclair said this. Therefore, this allegation fails. 3. Constructive dismissal

[249]I have rejected the Claimant’s allegation that her resignation amounted to a constructive dismissal. Because the Claimant was not dismissed, her allegation that this amounts to discrimination arising from disability also fails. Failure to make reasonable adjustments

[250]The Respondent knew or could reasonably have been expected to know that the Claimant was a disabled person throughout the time covered by the allegations that there was a failure to make reasonable adjustments. This was as a result of the Claimant’s symptoms arising from depression, anxiety, potential autism and potential ADHD.

[251]I accept that the Respondent had the PCPs (provisions, criteria or practices) which are listed in issues7.2.1 to 7.2.3, namely: 7.2.1 A practice of communicating with staff to give them instructions and feedback.

7.2.2 A practice to allocate tasks to staff on the day.

7.2.3 A practice that staff were allocated to work in the ornamental tree area.

[252]I also accept that the first two of these practices put the Claimant at a substantial disadvantage given her particular disabilities in comparison to those who were not disabled, given the difficulties she had with verbal communications and her aversion to last minute changes.

[253]I do not accept that the practice that staff were allocated to work in the ornamental tree area placed her at a particular disadvantage. The particular problem with the ornamental tree area appears to stem from her dyslexia rather than from the disabilities that she is relying on in these proceedings. She struggled to remember the names and locations of the ornamental trees which were listed in alphabetic order. I am not satisfied on the evidence before me that the difficulties she experienced working on ornamental trees were caused by the particular impairments relied upon as disabilities.

[254]In any event, if the disabilities on which she relies placed her at a substantial disadvantage in working on ornamental trees, then the Respondent did not know nor ought it to have known that this was a substantial disadvantage arising from these disabilities.

[255]I have not found that the Respondent communicated with the Claimant in respects which were confrontational. I have found that the Claimant was allocated additional or different tasks on the day on 2 January and on 3 and 4 February 2023, but not on 7 February 2023 or on 21 February 2023. However, I am not persuaded that this was a failure to make reasonable adjustments for the Claimant. Whilst the Respondent went to significant lengths to try to allocate the Claimant her tasks on the day before the day on which this was due to be carried out and to do so by notifying her in the app, this was not always possible. The mediation agreement recognised that tasks may change and further tasks may be added. Having considered the specific evidence in relation to each of dates relied upon by the Claimant, I am not persuaded that on any of these three specified occasions there was a failure to make a reasonable adjustment.

[256]I have rejected the allegation that there was a failure to make a reasonable adjustment in relation to the allocation of work on ornamental trees, because the Claimant was not placed at a specific disadvantage in relation to this work by the particular disabilities on which she relies in these proceedings. In any event, the Mediation Agreement envisaged that the Claimant would be able to do this work, albeit once she had first worked in the Bamboo and Topiary areas (which is what happened). Harassment

[257]The Claimant makes five allegations of harassment related to disability. These five allegations repeat the factual allegations advanced as part of the constructive unfair dismissal claim. As a result, it is not necessary for me to deal with each of them again when deciding whether they amount to allegations of harassment. I repeat the analysis above in the section setting out my conclusions as to constructive unfair dismissal.

[258]In relation to each of the five allegations set out in the List of Issues, I accept that the treatment alleged by the Claimant which I have found has been proved was unwanted treatment. In particular, the Claimant had a particular sensitivity to being criticised and so any criticism however mild or constructive was unwanted treatment. However, I do not find that the treatment relied upon had the purpose or effect of violating the Claimant’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. This was not the Respondent’s purpose. Nor was it the effect. Whilst I have had regard to the Claimant’s perception in assessing the effect of each aspect of the treatment alleged, I have also had regard to the surrounding circumstances as set out in my factual findings and as to whether it was reasonable for the conduct to have that effect. As the Claimant herself recognised on occasions, prompting her to offer her apologies, there was a marked difference between the Claimant’s reaction and a reasonable reaction. Application of statutory time limits

[259]There was no reference in the List of Issues to the application of statutory time limits. Early conciliation started on 22 March 2023 and ended on 3 May 2023. The claim form was presented on 4 May 2023. Allegations in relation to events that took place before 23 December 2022 are potentially time-barred. As a result, the Claimant’s constructive unfair dismissal claim is in time and the Tribunal has jurisdiction to consider it. Discrimination allegations in relation to events that took place before 23 December 2022 are potentially time-barred. The Tribunal only has jurisdiction to consider them if they were part of a conduct extending over a period or if it would be just and equitable to do so.

[260]Because of my conclusions on the merits of the Claimant’s claim, it is unnecessary for me to express a view as to whether the Tribunal would have had jurisdiction to award a remedy had they succeeded. The Respondent has not persuasively pointed to any particular forensic prejudice if the primary three-month limit were to be disapplied in relation to all of the allegations. Balancing the prejudice to the Claimant if the Tribunal were to deny her the opportunity to consider these allegations on their merits against the prejudice to the Respondent of defending those allegations, I would have been prepared to extend time for all of the Claimant’s allegations on the basis that this was just and equitable. The Tribunal would have needed to have considered the circumstances of the incidents relied upon as part of the constructive unfair dismissal claim in any event. Approved by Employment Judge Gardiner 25 July 2025 Appendix - The List of Issues Unfair dismissal Did the respondent do the following things:2.1.1 Ms Freeman was aggressive to the claimant on 12 July 2022 (in breach of existing communication adjustments already in place) when the claimant suggested a better way to do a task.

2.1.2 The respondent unjustifiably (and without taking into account the claimant’s autism) issued the claimant with a written warning on 20 September 2022 for failure to follow reasonable management instructions, arising out of the argument with Ms Freeman on 12 July 2022.

2.1.3 Ms Freeman unjustifiably told the claimant off as follows: - Ms Freeman was aggressive to the claimant on 12 July 2022 when the claimant suggested a better way to do a task. - Ms Freeman unjustifiably told the claimant off as follows: - 20 June 2022 (loading climbers by the back door to the old house plants) - 12 July 2022 (incident outside the temporary staff cabin when the Claimant has not done a task) - 25 October 2022 (discussion in on the hard standing area when the Claimant was told off) - 11 February 2023 (discussion over moving Buxus in the lower stock area) - June 2022 (told off for not completing stakes task) - 13 June 2022 (told off about tree weeding) - June 2022 (told off about cutting climbers) and - 14 March 2023 (told off for taking breaks in shower room)

2.1.4 Ms Baker Sinclair (HR) told the claimant in October 2022 that the problems were all in her head.

2.1.5 The respondent failed to implement the adjustments agreed under the December 2022 mediation agreement, namely it changed the claimant’s jobs on the day (in breach of the arrangement that her jobs be listed on the app the day before and that she be permitted to opt out of ornamental tree work on the day if her anxiety levels were too high): - on 2 January 2023 (jobs changed on the day due to stock take) - 3 February 2023 (only one job on the app, no ability to opt out of ornamental tree work and given job area not in the agreement), - 4 February 2023 (only one job on the app, no ability to opt out of ornamental tree work and given job area not in the agreement) - 7 February 2023 (jobs not added to the app) - 21 February 2023 (jobs on app changed and no ability to opt out of ornamental tree work) and - 18 March 2023 (no ability to opt out of ornamental tree work)

2.1.6 On 20 December 2022, the respondent put in place an inappropriate communication bar during non-working hours meaning the claimant could not contact her manager on routine matters; On 21 December 2022 Ms Freeman breached this arrangement and contacting the claimant on Ms Freeman’s own day off about an issue the claimant had raised with Ms Baker Sinclair.

2.1.7 The respondent put in place an arrangement following the December 2022 mediation agreement which did not work, namely adding in two new areas of work (shrubs and fruit trees) to existing areas (topiary and bamboo) before the claimant was ready and before it had been discussed with the claimant.

2.1.8 Not giving the claimant choice as to jobs: as above regarding move into shrubs/fruit trees and on 18 March 2023 (plant area added to jobs)

2.1.9 On 17 March 2023 Ms Baker Sinclair, when told by the claimant how upset she was and that she was close to resigning, said that Ms Freeman was not going anywhere and did not investigate what the claimant was complaining about (ie brushed the claimant off) including not replying to the claimant’s WhatsApp message.

2.1.10 On 18 March 2023 Ms Freeman told the claimant to go home sick if the claimant would not do ornamental trees (the area the claimant struggled with), which the claimant then did.

2.1.11 The claimant was directed to work in ornamental trees (the area the respondent knew she struggled with due to anxiety and, as regards after December 2022, which she said it had been agreed she could decline) on the following occasions: 26 July 2022, 24 August 2022, 12 September 2022, 27 September 2022, 4 October 2022, 5 October 2022, 6 October 2022, 11 October 2022, 13 October 2022, 14 October 2022, 17 October 2022, 19 October 2022, 25 November 2022, 12 December 2022, 3 February 2023, 4 February 2023, 19 February 2023; 20 February 2023, 21 February 2023, 4 March 2023, 7 March 2023, 10 March 2023, 17 March 2023 and 18 March 2023. 2.2 Did that breach the implied term of trust and confidence? The Tribunal will need to decide: 2.2.1.1 whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and 2. 2.1.2 whether it had reasonable and proper cause for doing so. 2.2.2 Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end. 2.2.3 Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation. 2.2.4 Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that she chose to keep the contract alive even after the breach. Remedy for unfair dismissal

3.1 Does the claimant wish to be reinstated to their previous employment? She says in her claim form that she does.

3.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?

3.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

3.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

3.5 What should the terms of the re-engagement order be?

3.6 If there is a compensatory award, how much should it be? The Tribunal will decide:3.6.1 What financial losses has the dismissal caused the claimant?

3.6.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

3.6.3 If not, for what period of loss should the claimant be compensated?

3.6.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

3.6.5 If so, should the claimant’s compensation be reduced? By how much?

3.6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

3.6.7 Did the respondent or the claimant unreasonably fail to comply with it? The claimant claims breaches of the ACAS Code (grievances) because the respondent did not do anything about her complaints.

3.6.8 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

3.6.9 If the claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?

3.6.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?

3.6.11 Does the statutory cap of fifty-two weeks’ pay apply?

3.7 What basic award is payable to the claimant, if any?

3.8 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? 4.1 Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:

4.1.1 Did they have a physical or mental impairment:

(1) autism

(2) anxiety

(3) depression and

(4) ADHD?

4.1.2 Did it have a substantial adverse effect on their ability to carry out day-to-day activities?

4.1.3 If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?

4.1.4 Would the impairment have had a substantial adverse effect on their ability to carry out day-to-day activities without the treatment or other measures?

4.1.5 Were the effects of the impairment long-term? The Tribunal will decide:4.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?

4.1.5.2 if not, were they likely to recur? Direct disability discrimination (Equality Act 2010 section 13)

5.1 Did the respondent do the following things: 5.1.1 Not allow the claimant to withdraw her resignation when she resigned on 18 March 2023.

5.2 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant says they were treated worse than Thanapan Pennick who resigned in 2020 but who was allowed to withdraw her resignation and who was not disabled.

5.3 If so, was it because of disability?

5.4 Did the respondent’s treatment amount to a detriment? Discrimination arising from disability (Equality Act 2010 section 15)

6.1 Did the respondent treat the claimant unfavourably by: 6.1.1 unjustifiably (and without taking into account the claimant’s autism) issuing the claimant with a written warning on 20 September 2022 for failure to follow reasonable management instructions, arising out of the argument with Ms Freeman on 12 July 2022; 6.1 .2 HR (Ms Baker Sinclair) telling the claimant in October 2022 that the problems were all in her head; 6.1.3 Constructively dismiss the Claimant.

6.2 Did the following things arise in consequence of the claimant’s disability: 6.2.1 The claimant’s communication issues and difficulty in being understood

6.3 Was the unfavourable treatment because of either of those things? Was the treatment a proportionate means of achieving a legitimate aim?6.3.1 The Respondent is entitled to take disciplinary action against any employee if it believes that there are issues with the employee’s conduct, pursuant to its Disciplinary Procedure. On this occasion the Claimant was disciplinary for failing to follow a reasonable management instruction. 6.3.1A The Respondent had a duty to ensure the health and safety of its employees including in particular the Claimant, whose health required to be safeguarded due to issues of heat; and Megan Freeman, who suffered in consequence of the way that she was treated by the Claimant.

6.3.2 The Respondent denies that the comment was made to the Claimant ‘that the problems were all in her head’.

6.4 The Tribunal will decide in particular:6.4.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

6.4.2 could something less discriminatory have been done instead;

6.4.3 how should the needs of the claimant and the respondent be balanced?

6.5 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date? Reasonable Adjustments (Equality Act 2010 sections 20 & 21)

7.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the four claimed disabilities? In relation to each claimed disability, from what date?

7.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs:7.2.1 A practice of communicating with staff to give them instructions and feedback.

7.2.2 A practice to allocate tasks to staff on the day.

7.2.3 A practice that staff were allocated to work in the ornamental tree area.

7.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that7.3.1 Ms Freeman’s reacted (claimed to be aggressively) to the claimant on 12 July 2022 when the claimant suggested a better way to do a task, which upset the claimant

7.3.2 The respondent changed the claimant’s jobs on the day as follows in breach of the adjustments in the December 2022 mediation agreement, which disadvantaged her as unable to deal with last minute changes and affecting the sequence in which tasks had to be done: - 2 January 2023 (jobs changed on the day due to stock take) - 3 February 2023 (only one job on the app, and given job area not in the agreement) - 4 February 2023 (only one job on the app and given job area not in the agreement) - 7 February 2023 (jobs not added to the app) - 21 February 2023 (jobs on app changed)

7.3.3 The respondent insisted the claimant do ornamental tree work on the following dates, which impacted on her ability to cope due to her demand avoidance: - 3 February 2023 - 4 February 2023 - 21 February 2023 and - 18 March 2023

7.4 Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?

7.5 The claimant says that the above failures by the respondent are to implement and follow (a) a communication adjustment put in place by 1 June 2022 and (b) communication adjustments and task allocation adjustments under the December 2022 mediation agreement.

7.6 What steps could have been taken to avoid the disadvantage? The claimant says that the steps are those agreed by 1 June 2022 (communication adjustment) and those in the December 2022 mediation agreement (communication and task allocation) and are:7.6.1 That the respondent communicate with the claimant in a way which was nonconfrontational

7.6.2 That the claimant be told her tasks for the next day the day before, using the app

7.6.3 That the claimant be allowed to opt out of ornamental tree work on the day (if allocated) if her anxiety levels were too high

7.7 Was it reasonable for the respondent to have to take those steps and when?

7.8 Did the respondent fail to take those steps? Harassment related to disability (Equality Act 2010 section 26)

8.1 Did the respondent do the following things:8.1.1 Ms Freeman was aggressive to the claimant on 12 July 2022 when the claimant suggested a better way to do a task.

8.1.2 Ms Freeman unjustifiably told the claimant off as follows: - June 2022 (told off for not completing stakes task) - 13 June 2022 (told off about tree weeding) - 20 June 2022 (loading climbers by the back door to the old house plants) - June 2022 (told off about cutting climbers) - 12 July 2022 (incident outside the temporary staff cabin when the Claimant has not done a task) - 25 October 2022 (discussion in on the hard standing area when the Claimant was told off) - 11 February 2023 (discussion over moving Buxus in the lower stock area) - 14 March 2023 (told off for taking breaks in shower room)

8.1.3 Ms Baker Sinclair told the claimant in October 2022 that the problems were all in her head

8.1.4 On 17 March 2023 Ms Baker Sinclair said, when told by the claimant how upset she was and that she was close to resigning, that Ms Freeman was not going anywhere and not investigating what the claimant was complaining about (ie brushing the claimant off) including not replying to the claimant’s email.

8.1.5 On 18 March 2023 Ms Freeman instructed the claimant to do ornamental trees and said to the claimant that if the claimant did not do that it meant she should go home sick (which the claimant then did).

8.2 If so, was that unwanted conduct?

8.3 Did it relate to disability?

8.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

8.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Remedy for discrimination

9.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

9.2 What financial losses has the discrimination caused the claimant?

9.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

9.4 If not, for what period of loss should the claimant be compensated?

9.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

9.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

9.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

9.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

9.9 Did the respondent or the claimant unreasonably fail to comply with it?

9.10 If so is it just and equitable to increase or decrease any award payable to the claimant?

9.11 By what proportion, up to 25%?

9.12 Should interest be awarded? How much?

Conclusions

[1]The Claimant has sent a lengthy email to the Tribunal seeking to dispute the Tribunal’s Judgment for the reasons she helpfully set out in numbered paragraphs.

[2]Whilst the Employment Tribunal Procedural Rules entitle a party to apply to the Tribunal for reconsideration of a Judgment, this procedural route is not an appropriate means of challenging the Tribunal’s factual findings by pointing to other evidence that a party considers should have been preferred by the Judge when deciding the case.

[3]Much of the Claimant’s application amounts either to challenging those factual findings with which she disagrees or asserting that further factual findings should have been made. The purpose of factual findings is to select those features in the wider evidence on which a factual finding needs to be made so that the legal issues raised by the Claim Form can be decided.

[4]There is no reasonable prospect of the Judgment being varied or revoked on the basis of the further evidential matters that the Claimant is raising in addition to the Tribunal’s factual findings or to dispute those findings – as the Claimant raises in paragraphs 1 (relating to paragraph 14 of the Reasons); 2-7; 10, 12-26, 32 and 35 of her application.

[5]The Tribunal’s explanation for why it did not listen to the Claimant’s recording is given in paragraph 70 of the Reasons. It was appropriate exercise of the Tribunal’s case management discretion to decide not to do so, given that a transcript was provided and in circumstances where the recording had not been made available in a format that was capable of played in audio format. The Claimant had not offered to play the audio on her phone during the course of the Final Hearing.

[6]There has been no failure to decide the legal issues in the agreed List of Issues which was appended to the Tribunal’s Reasons. In particular, the reference to the ACAS Code of Practice in issue 3.6.7 (which the Claimant specifically says has not been addressed in paragraph 27 of her reconsideration application) relates to a matter that only needs to be considered at the remedy stage if the Claimant had succeeded in her constructive unfair dismissal claim. The same is true for issue 9.8/9 (raised in paragraph 28 of the reconsideration application) which only arises for consideration if the Claimant had succeeded in her discrimination complaints. Because the Claimant failed to establish constructive unfair dismissal or discrimination, I do not need to decide whether there has been a failure to comply with the ACAS Code of Practice in the particular respects now raised by the Claimant in her reconsideration application in paragraphs 7, 8, 12, 23, 24, 28 and 37.

[7]The Claimant argues that the following arguments were not dealt with in the Tribunal’s Reasons:a. Paragraph 8 – disciplinary procedure was deliberately drawn out to cause maximum distress – but this does not form part of the agreed List of Issues.

b. Paragraph 9 – Respondent’s own procedure was violated because of the time taken to conclude the disciplinary process – but this does not form part of the agreed List of Issues.

c. Paragraph 11 – Respondent’s unnecessarily redacted or withheld documents – this again does not form part of the agreed List of Issues. I have checked my notes of the Final Hearing. Whilst the Claimant argues that she had requested an order in relation to this matter from the Tribunal, the need for a disclosure order was not raised by her at any point during the Final Hearing. On a couple of occasions, the Claimant complained about redacted documents when answering questions in cross examination. These were documents that had been supplied in complying with a Data Subject Access Request. This is not advanced as a separate complaint of discrimination or part of her constructive unfair dismissal case.

d. Paragraph 25 – Miss Freeman’s intimidation and harassment in the staff room – save as Miss Freeman’s conduct was otherwise covered in other issues, this more general allegation did not form a particular allegation in the List of Issues. Therefore it did not need to be dealt with.

e. Paragraph 29 – failing to refer to the delay in providing an outcome to the Claimant’s grievance. This was not one of the issues to be decided at the Final Hearing.

f. Paragraph 30 – no reference made to the Claimant’s implied terms. The Claimant was not advancing a complaint in these Tribunal proceedings based on the implied terms of her contract, apart from the implied term of mutual trust and confidence which formed the basis of her constructive unfair dismissal complaint.

g. Paragraph 31 – not completing a stress risk assessment is contrary to Health & Safety Executive Guidance. This was not an issue for the Tribunal to decide in the Agreed List of Issues.

h. Paragraph 37 – Flexible working request was denied. There was no reference to flexible working in the Agreed List of Issues.

[8]The Claimant argues that her time was limited to provide her closing submissions (paragraph 33). This was not the case. I had indicated to both parties that I hoped they could deliver their closing submissions to thirty minutes. The Respondent went first and took somewhat longer than 30 minutes. The Claimant made oral closing submissions starting at 16:18, which the Tribunal carefully noted in about a page and a half of typed notes. Her time for doing so was not limited. Midway through her oral submissions, as I have noted, she said “Thank you for being accommodating and lovely”. She confirmed when she had finished speaking that there was nothing more that she wanted to add. I have not specifically noted when the Claimant stopped making her submission. Following from the end of the Claimant’s closing submissions, there was further discussion between the Tribunal and the Claimant and the Respondent’s counsel on various matters in which the Claimant had a further opportunity to make any final points. The hearing itself ended at 5pm on 22 May 2025. I then took the final day, 23 May 2025 to deliberate. I also required further time after that day to complete the deliberations and to finalise the Judgment and Written Reasons.

[9]The Final Hearing was originally listed for 10 days. I was leading on a judicial training course for two of the scheduled dates when I was assigned to be the Judge at the Final Hearing. As a result, a further day was found so that the overall reduction in the length of the case was only from 10 days to 9 days. The evidence and submissions finished at the end of Day 8. The previous Employment Judge listing the case for ten days would have envisaged at least two and probably three days for Tribunal deliberation. The reduction from 10 to 9 days has therefore not reduced the parties’ opportunity to spend time cross examining witnesses. As a result, there is no basis for the criticism made at paragraph 34 of the reconsideration application.

[10]At paragraph 36 of her application, the Claimant challenges a previous decision made by Employment Judge Reed at a Preliminary Hearing that it was not appropriate for the Claimant to have permission to call an expert on neurodiversity. The order of Judge Reed was not challenged at the time and remains binding on the Tribunal. The Claimant’s current dissatisfaction with the implications of that decision is not a proper basis to apply for reconsideration of the Tribunal’s judgment.

[11]For these reasons, there is no reasonable prospect of the Judgment being varied or revoked, and the reconsideration application is refused on paper without the need for a hearing to be listed.