Ms N S Khaliq v Secretary of State for Work and Pensions: 3201286/2022
EMPLOYMENT TRIBUNALS
Case No 3201286/2022
Between
Ms N S KhaliqClaimantSecretary of State for Work and Pensions PRELIMINARY HEARING (OPEN)Respondent
Before
Employment Judge B ElgotIn person for claimantMs J Russell (instructed by Counsel) for respondentDate 13 June 2025
JUDGMENT
[1]The parties are agreed that the correct name of the Respondent is Secretary of State for Work and Pensions[2]The claims of unfair dismissal, unlawful deductions from wages, breach of contract (failure to pay notice pay), for accrued and unpaid holiday pay and the complaint that the Claimant has been subjected to detriment on the ground that she made protected disclosures are STRUCK OUT and DISMISSED.[3]This is because an Employment Tribunal has no jurisdiction to hear these claims and they therefore have no reasonable prospect of success. Each of the claims has been lodged outside the relevant time limit. I decline to extend time because I have determined that it was reasonably practicable for the Claimant to have filed these claims within the time limits.[4]The claim of disability discrimination is out of time but is not struck out and remains listed for hearing in person on 26,27 and 28 July 2023 at East London Hearing Centre. I am satisfied in relation to this claim that it is just and equitable to extend time until 22 March 2022 which is the date when the Claim (ET1) was lodged.[5]No later than 7 April 2023 the parties shall write to the Tribunal giving their final decision on whether each of them seeks an offer of judicial mediation if one of the Acting Regional Employment Judges is willing to offer this facility.[6]No later than 14 April 2023 the parties must agree and send to the Tribunal a revised List of Issues setting out the remaining issues and the disputes of fact/questions which the Tribunal will be asked to determine in relation to disability discrimination at the final full merits Hearing.[7]There shall be a further Preliminary Hearing by telephone for three hours on 18 May 2023 commencing at 10 am in order to deal with all other outstanding matters and make case management orders for the full Hearing. There was insufficient time to make these orders at the conclusion of this hearing. If either party wishes to make any further application in relation to amendment of the claims and/or response it must do so in writing no later than 21 April 2023 so that an
REASONS
[1]This open preliminary hearing in person was listed for one day on 16 March 2023 to consider the fact that all the claims have been made out of time and to consider whether to extend time or to strike out all or some of the claims.[2]There is a Preliminary Hearing (PH) Bundle of 152 pages and at pages 150- 152 there is a statement by the Claimant stated to ‘explain the reason for my late appeal application to the Employment Tribunal’. I explained to the parties that I would read only those pages in the PH Bundle to which my attention was specifically directed. The Claimant gave evidence on oath and was cross examined by Respondent’s counsel and answered questions put to her by me.[3]I have had the benefit of a written Skeleton Argument prepared by Ms Russell on behalf of the Respondent and both parties gave oral submissions. The Claimant was distressed during the hearing and apparently exhausted and very hot. She was provided with a quiet cool room and supervised rest over the period from 1.30 to 2.35 pm and offered further breaks which she declined. She was able to make oral submissions but in view of her difficulties I adjourned for a reserved decision.[4]I am satisfied that the Claimant had notice of the issues she was obliged to address and was enabled to put forward her evidence and arguments with due concern and adjustments for her welfare.[5]The parties have had the benefit of two previous preliminary hearings at which the claims and issues were discussed. On 17 October 2022 Employment Judge Beyzade listed an open preliminary hearing on the time limit points for 25 January 2023. He also ordered the Claimant to provide further information about her claims- see paragraphs 23 -27 on pages 43 -46 of the PH Bundle The Claimant was able to provide these particulars by 21 November 2022 (pages 51-59). She alleges that her dismissal was an act of disability discrimination as appears from paragraphs 1-4 and paragraphs 8- 9 of her further information on page 52 of the PH Bundle.[6]The Claimant also alleges direct disability discrimination, discrimination arising from disability and a failure by the Respondent to make reasonable adjustments. The issues in relation to these claims are set out in a draft List of Issues on pages 61 -66 and I am satisfied by reference to that document that there are significant and cogent complaints by the Claimant which require determination by a Tribunal and which it would not be just and equitable to strike out for want of jurisdiction.[7]It would be prejudicial to the Claimant if these disability discrimination claims (which are not only about her own disability but her caring responsibilities for her three allegedly disabled children) were not ventilated. There is no claim of associative discrimination.[8]The Claimant states that her disabilities are migraine, anxiety, depression, ADHD and emotionally unstable personality disorder (EUPD) and she states that her eldest son has mental health difficulties, is autistic and suffers from Crohn’s disease, that her middle son has post- traumatic stress issues and that her daughter is unwell with asthma and eczema, anxiety and behavioural issues.[9]The second preliminary hearing took place before Employment Judge F Allen on 25 January 2023 when the hearing was postponed to 16 March 2023 because the Claimant did not understand the purpose of the hearing and did not realise that the question was whether her claims or some of them might be struck out. I am satisfied that she certainly understood that these were the matters in question before me.[10]The Claimant was employed by the Respondent from 21 January 2002 until 28 April 2021 (the effective date of termination) when she was dismissed summarily for gross misconduct. She had a career break between 2010 and 2015. Her appeal against dismissal was not upheld and she was notified of that outcome on 9 July 2021. The ACAS early conciliation period commenced on 26 July 2021 and the certificate was issued on 27 August 2021 but thereafter the Claimant did not submit her ET1 Claim to the Tribunal until 22 March 2022. The latest date on which her claim ought to have been submitted was 26 September 2022 and she is therefore just under six months late with her claims.[11]There is no text in her ET1 which requests any extension of time and the Claimant did not respond to a letter from the tribunal (EJ Gilbert) dated 5 April 2022 which alerted her to the fact that all her claims were submitted outside the time limits.[12]The period in question in this case is therefore the time between 26 September 2021 which was the deadline for lodging the claims and the date on which they were filed on 22 March 2022. I explained to the Claimant that I would apply the test of whether it was reasonably practicable for her in relation to all her claims except disability discrimination to bring her complaints before the end of three months, extended by the ACAS early conciliation period. I similarly explained to her the different test which applies to discrimination cases where the time limit is the same but the test is whether it is just and equitable for me to extend the period within which she must claim. I considered, as background, the events of the late summer of 2021 so that I could understand the reasons for the delay which occurred after early conciliation commenced on 26 July 2021.[13]In particular I took into account not only that the Claimant was able to submit and conduct a lengthy appeal against her dismissal ( pages 127 -130 of the PH Bundle) which contains much of the dispute which is reflected in her tribunal claim but also that she was aware of the possibility of tribunal litigation as early as 6 May 2021 because in her appeal letter of that date she writes ‘I am ready to go to the tribunal and further if I have to’. I have made a finding set out below that I do not find it credible that the Claimant did not know that time limits applied to tribunal proceedings and she had the resources to investigate the length of those time limits.[14]The Appeals Officer Mr Shaun Curnow again states on 10 May 2021 at page 131 ‘Nurjahan has in correspondence with me indicated it is her intention to go to Tribunal’.[15]In September 2021 the Claimant was in correspondence with the Respondent’s officer Mr Philip Harwood who was tasked to enquire of the Claimant whether she wished to pursue a post-employment grievance in relation to the allegations of bullying, harassment, and racism she had made during her appeal. He records in the Casework Query documentation on page 40 dated 27 September 2021’Miss Khaliq is currently prepping for an employment tribunal against the department regarding her dismissal’. At page 141 he refers to ‘pending employment tribunal’.[16]I conclude that at almost exactly the same date when the claims ought to have been presented to the tribunal the Claimant was communicating to Mr Harwood that she had a pending claim. She was able, whatever the state of her mental health at the time, to engage in correspondence including a detailed discussion of the issues about her dismissal and enquired whether a successful resolution of her post-employment grievance would potentially result in a reversal of her dismissal. Mr Harwood told her that he could not guarantee’ that putting in a grievance now could result in the decision to dismiss being overturned’ and the Claimant therefore did not pursue that grievance option.[17]The relevance of these emails is that, for example, at page 143 of the PH Bundle it is clear that on 30 September 2021 even past the deadline for the tribunal claim the Claimant is conscious that she can dispute the fairness of her dismissal and tells the Respondent’s officers that, although her ‘mental health condition has been worse for some time now’ (page 144) she is able to discuss the interaction between a possible post-employment grievance and her pending tribunal. I find that she was sufficiently informed and organised at this time to discover the time limits and to file a claim; it was reasonably practicable for her to do so in the context of the other correspondence she entered into with the Respondent.[18]The Claimant sought some legal advice and assistance and spoke to ACAS several time. Indeed she was able to contact ACAS just within the time limit for early conciliation but she is insistent that she was not aware of the three month time limit for the presentation of her Employment Tribunal claims. She says that she could not get past the receptionist and was ‘turned away’ by all sources of help including Citizens Advice Bureau, ‘law centre’ in Limehouse and solicitors. I do not believe that this can universally be the case and her evidence in this respect is not credible. In addition there are wide-ranging on-line resources for potential claimants to obtain information about tribunal time limits and the Claimant told me that she did do some research about the type of claims she could bring. In those circumstances it was reasonably feasible for her to read about and identify the time limits and understand that she only had a relatively short time in which to make her claims in the tribunal.[19]The Claimant is clearly an articulate and intelligent person but she does have her own mental health difficulties and onerous caring responsibilities as a single parent for her three children now aged 22,19 and 13. She has a painful and traumatic family history and early life described in her witness statement and at pages 35-39 in a letter to the Respondent on 12 September 2022. She suffered several family bereavements during the covid 19 pandemic in 2020. I have considered whether these medical and social factors made it not reasonably practicable for her to comply with the time limits for lodging her claims (save for disability discrimination)[20]The medical documents are at pages 76 – 91 of the PH Bundle and I examined those documents which are relevant to the period I identified above i.e. 27 September 2021 to 22 March 2022. It is for the Claimant to prove that during that period, for health reasons, it was not reasonably practicable to submit her claims.[21]Her consultant psychiatrist’s letter at page 76 from Dr Luke Mearns at Bow and Poplar Community Mental Health Team (CMHT) is dated 13 October 2022 which is a later date but it does refer to ‘ I am very concerned about her mental state…constantly anxious, low, expressing suicidal ideas and unable to carry out many of her activities of daily living’. The phraseology of the letter suggests it was written to support an application for state disability benefits. Dr Mearns does say ‘understand she has been as she is now for over a year’. I have therefore examined whether the Claimant had the same worrying mental state going back beyond October 2021.[22]Her GP Notes are at pages 77-80 and although confirming the Claimant’s diagnoses and treatment do not make reference to any worsening of her mental health conditions between September 2021 and March 2022. Indeed there is no note of any GP consultations over this period.[23]On 18 October 2022 the day after the PH with EJ Beyzade when the Claimant was informed that there would be a preliminary hearing on 25 January 2023 to determine the time limits issues she did contact her GP and ask for a ‘letter confirming that due to my mental health worsening and caring responsibilities I have not been able to cope with daily routines and unable to get additional support as my anxiety depression and anger issues were extremely bad.’[24]Her GP Dr Marmot prepared and sent the letter dated 12 December 2022. It contains no dates or details of consultations in the relevant period or indeed any dates at all. It says ‘Nurjahan has presented to us many times over the years with complaints about stress at work. She attended several times in 2017…since that time Nurjahan has presented many times about her poor mental health… and other presentations related to stress…in fact worsened over the years.’ Dr Marmot goes on to confirm diagnosis and treatments. However, there is, as I say, no specific reference to the impracticability of the Claimant’s being able to take action to deal with paperwork between September 2021 and March 2022. What the GP does say is that by December 2022 ‘it has been quite evident to us at the surgery that Nurjahan has been unable to cope with everyday activities and especially paperwork… she has not been mentally able to proceed in a meaningful and timely way’.[25]Nonetheless, it is clear from the tribunal file and the Claimant’s engagement with two employment judges at two separate PHs before this one that she has since March 2022 been able to proceed with her tribunal claim and deal with the relevant paperwork including the preparation of detailed submissions and statements. Dr Marmot’s letter does not assist her in relation to the earlier relevant period. Similarly, there are no disclosed fit notes relating to that period.[26]Finally, there is a letter dated 17 February 2023 from Nazrul Miah at Bow and Poplar CMHT referring to Dr Mearn’s letter of 13 October 2022 (perhaps dictated on 23 September 2022 as page 88 indicates). The letter refers to ‘previous indication from 2020 GP had significant concerns about the severity of her depression, risk to self and poor functioning…complex family dynamic’. He says, as the Claimant stresses herself, that ‘this has been ongoing through covid restrictions and it may be possible that Miss Khaliq did not appeal on time’.[27]However, the 17 February 2023 letter does not focus on the relevant time period and therefore does not assist the Claimant in discharging her burden of proof. I am cognisant of the fact that during 2020 and the covid 19 restrictions she was nonetheless able to prepare and file documentation relevant to her work, her dismissal and appeal and then contact ACAS. She has been able to contact and write extensively to the Tribunal and the Respondent since March 2022. Despite her complex and manifest health, family, and social difficulties she has not shown that there was a significant worsening of her situation which made it not reasonably practicable for her to lodge the ET1 within the prescribed time limit.[28]Finally, there is a comprehensive and supportive letter at pages 90-91 from the family’s senior help worker at Tower Hamlets Supporting Families Division of the Children and Culture Directorate of the local authority speaking of a ‘very difficult year’ for the Claimant from March 2021 to March 2022 since Ms K. McLoughlin has been working with her and her children particularly her daughter. It is a letter which evokes considerable sympathy for the Claimant’s situation but it does not explain why she could engage with the dismissal/appeal/possible grievance /ACAS scenario between March 2021 and September 2021 but could not then put in her tribunal claim for six months between September 2021 and March 2022.[29]The Claimant told me that the intervention of Ms Mclaughlin and the help she provided made all the difference to her ‘ my stress calmed down a bit and I could concentrate on my other problems [not just my children]. Ms Mclaughlin, who had previously been the attendance officer at the Claimant’s daughter’s school and therefore knew the family well, began helping them extensively from March 2021. This evidence again supports a conclusion that the Claimant was enabled and capable of bringing her claim to the tribunal, with the support of family intervention professionals, and it was reasonably practicable for her to do so. She told me that Ms McLaughlin had said to her ‘go on the website and do it yourself’.[30]In all the circumstances described above I therefore conclude that the claims of unfair dismissal, unpaid wages, accrued and unpaid holiday pay and in relation to detriments on the ground of whistleblowing should be dismissed and struck out because a tribunal has no jurisdiction to hear them. Those claims have been lodged outside the relevant time limits and I decline to extend time because I am not satisfied that it was not reasonably practicable to comply with those time limits.[31]I have stated above that I find it just and equitable to extend time for the submission of the Claimant’s complex and significant disability discrimination claims which are arguably matters of public interest.[32]The complaints of disability discrimination are well documented insofar as I can ascertain. This is not a case where the Respondent has sought to persuade me that there is undisputed contemporaneous documentation which is totally inconsistent with the Claimant’s version of the alleged facts; indeed, disclosure is not yet complete and it seems certain that there are issues of disputed fact which need to be resolved by a full hearing of the evidence.[33]I am not convinced that the cogency of the evidence on either side will be affected by the six-month delay. The final hearing is taking place within a few months from today at the end of July 2023. The Claimant’s appeal documents alerted the Respondent as early as June 2021 to some of the disability discrimination issues to be determined. There is not such an excessive time gap that witnesses will not recall events particularly in a well -documented series of alleged discriminatory acts and events.[34]In all the circumstances the disability discrimination claims remain to be heard and are not struck out. I have made orders set out above which provide for further case management directions to be made promptly.
Findings of Fact
[35]The claimant’s daughter suffered from asthma and eczema. The respondent accepts that the claimant’s daughter was disabled by reason of asthma and that it was aware of her disability in this regard from June 2018. The respondent also accepts that the claimant’s daughter was disabled in relation to her medical condition of eczema.[36]A letter was sent from Katherine McLoughlin, Tower Hamlets Northeast Locality Children and Family Centre dated February 2023 advising that she had been working with the claimant and her children since March 2021 and that she was involved in the relevant team from December 2020. The family consisted of the claimant who was the children’s mother, the father (who was not the children’s father), her oldest son who was 22 years old, middle son 21 years old, and her 13-year-old daughter. - 13 -[37]It was reported that the claimant’s daughter suffered from asthma and eczema. She also had some behavioural difficulties. It was explained that the claimant’s oldest son was suspected to have ADHD and was being assessed for it, and that he also suffered from CHRONS. The claimant’s younger son had some social and emotional needs, he was exceptionally anxious, he had an eating disorder, and his mother provided some support to him (the claimant wanted him to be assessed for ADHD).[38]The Dermatology SPR on 22 March 2022 advised that the claimant’s daughter had a diagnosis of eczema, asthma, and mental health issues. It was stated that her eczema stopped her from attending school, and that this was currently affecting her day to day and at school.[39]The claimant’s daughter’s medical documentation shows that she suffered from obesity and atopic dermatitis/eczema on 15 March 2011, on 17 September 2013 asthma, and thereafter on 11 January 2017 eczema/NOS. In addition, it was recorded that she was identified as a child at risk on 14 October 2021 (see page 977 of the Hearing Bundle).[40]On 25 March 2015 the claimant’s second son’s medical records indicate an initial date of diagnosis of 01 January 2007 and a diagnosis of unusual enterocolitis syndrome (resolved) and functional GI disorder. He also reported issues with headaches. The letter from Michelle Fong, FY2 in Ophthalmology dated 22 May 2015 indicated that the claimant’s younger son was referred for possible unusual enterocolitis related eye symptoms but on examination that day his symptoms of bilateral red eyes had completely resolved. On 05 April 2017 it was reported by Ian Sanderson, Professor in Paediatric Gastroenterology that he had poor appetite and weight loss (consideration was given to anorexia nervosa). On 11 September 2017 Professor Nicholas Croft, Professor/Honorary Consultant in Paediatric Gastroenterology advised that he came up to the clinic that day, he was recently admitted under paediatrics and was discharged with follow up with one of his general paediatric colleagues. Dr Saul Mermot noted in his letter dated 04 December 2017 that he had been referred to the eating disorder clinic for further assessment and on 10 December 2018 Anton Grizzle, Social Worker and Systemic practitioner advised her had been diagnosed with Avoidant Restrictive Food Disorder. The Consultant Paediatrician by letter dated 26 September 2018 noted that he suffered from problems with eating and had developed a lot of anxiety including a lot of hesitancy, inability to sleep and social interactions.[41]The Psychiatric Registrar in their letter of 19 November 2021 noted that the claimant’s eldest son had education needs, suffered significant stress manifesting in anxiety and low mood, and he is concerned about a potential diagnosis of ADHD and ASD (which was likely to take some time).[42]The claimant had been openly discussing details relating to the health of her children with her work colleagues (including in relation to certain matters referred to above). Claimant’s absence from work - 14 -[43]Between November 2017 to April 2018 the claimant had taken unpaid carer’s leave. The claimant had volunteered to take unpaid carer’s leave during that period, which was agreed by the respondent.[44]The claimant had a number of sickness related absences from work between 22 May 2008 and 14 February 2021 (please see Sickness Absence Report at pages 659 and 659a of the Hearing Bundle, which was not challenged by the claimant).[45]The claimant’s last recorded sickness absence was between 23 November 2020 and 14 February 2021 due to stress.[46]A copy of the respondent’s Attendance Management Procedures is available at pages 983 to 1007.[47]Due to the COVID-19 lockdown, vulnerable staff were sent home by the respondent on special paid leave from 20 March 2020. The claimant said she needed to isolate with her children due to various health issues from 17 March 2020. The claimant was unable to work from home until the respondent could provide some equipment to her. This took some time, and she did not resume working from home until June 2020.[48]On 2 June 2020 the claimant called in sick due to stress caused by a family member having a severe stroke. Carmel Walsh tried to keep in touch with the Claimant over the following days and they spoke on 4 June 2020 but then not again until she returned to work on 15 June 2020, and on which date she conducted a return-to-work meeting with the claimant.[49]On 24 June 2020 the claimant was absent due to sickness and on her return to work on 25 June 2020 Carmel Walsh notified her that she would invite her to an attendance management meeting. On 2 July 2020 Carmel Walsh sent a letter to the claimant inviting her to attend an attendance management meeting, to take place on 22 July 2020.[50]On 17 July 2020 the claimant called in to say she would be taking 2 weeks off work on advice from her doctors. Carmel Walsh tried to contact the claimant by telephone and her next of kin on a regular basis to find out if she was ok. The claimant sent her an email on 28 July 2020 to explain that she had been absent because her son’s mental health had deteriorated over lockdown, and he had become increasingly violent and aggressive. This had caused the claimant extreme stress, and a migraine, and she had been advised to take two weeks off work to recover. The claimant stated that she would return to work on 30 July 2020. She did not agree to discussing the matter of her absence without her trade union representative present. The claimant did not return to work on 30 July 2020 but on 4 August 2020 the claimant sent a further fit note for the period 31 July to Friday 7 August 2020.[51]The claimant did not return to work on Monday 10 August 2020. Carmel Walsh attempted to contact the claimant and her next of kin, without success. Carmel Walsh wrote to the claimant on the following day. The claimant returned to work on 13 August 2020 and Carmel Walsh conducted a welcome back meeting during which they discussed another referral to Occupational Health and the claimant was reminded of - 15 - the respondent’s Employee Assistance Programme and the availability of Mental Health First Aiders in the workplace. The claimant was sent an invitation to a further attendance management meeting, to take place on 20 August 2020.[52]On 20 August 2020 the claimant did not attend the attendance management meeting. Carmel Walsh telephoned her, and the claimant did not answer but she later sent a message on WhatsApp. The claimant was advised that the meeting must be scheduled within the next 5 working days and if it did not take place by 27 August 2020 Carmel Walsh would have no alternative but to make a decision in her absence. The claimant did not make any attempt to be available for the meeting within 5 working days.[53]On 28 August 2020 Carmel Walsh sent a letter to the claimant notifying her of her decision to issue a First Written Warning for absence. The claimant was subject to a review period for 6 months until 27 February 2021 (this meant that if she was absent during this time she may be issued with a Final Written Warning).[54]From 4 September 2020 it came to light that the claimant was not completing her full 6 hours of work when a colleague was checking the respondent’s statistics against decisions cleared in the system. Carmel Walsh continued to monitor the claimant’s working time and asked her to start sending her daily statistics for decisions completed. On 8 September 2020 the claimant sent an email to Carmel Walsh to state that she wanted a different manager. On 22 September 2020 Carmel Walsh contacted the claimant on the telephone to discuss her statistics and the claimant lost her temper, spoke over her and thereafter the claimant disconnected the call.[55]On 29 September 2020 Carmel Walsh held an online review meeting with the claimant, attended by a colleague (who she asked to attend as a witness because of what had happened in that earlier telephone conversation), to discuss the issues she had tried to talk to the claimant about over the telephone on the 22 September 2020. During that meeting they discussed the claimant’s working hours and rota, how she needed to communicate her absences, what had happened on the call on 22 September 2020 and the claimant was provided with an update on changes to processes.[56]The claimant sent an email on 30 September 2020 to apologise for her behaviour on 22 September 2020, saying that she appreciated the support and flexibility and thanked Carmel Walsh for understanding her and her needs. The claimant also made a request to increase her working hours to full time, and during the meeting on 29 September 2020 Carmel Walsh had advised the claimant that there was a process to follow which they could review at the next meeting that had been arranged for 15 October 2020. Carmel Walsh sent the claimant a summary of the meeting on 1 October 2020.[57]In mid-October 2020 the claimant was granted 9 days of emergency annual leave due to her husband being involved in a motorbike accident and her daughter having various hospital appointments. Accordingly, the claimant was unable to attend the review meeting that Carmel Walsh had scheduled for 15 October 2020. Thereafter the claimant was off sick for a few days due to an earache.[58]On 10 November 2020 Carmel Walsh conducted a welcome back meeting with the claimant during which the claimant was advised that the October 2020 review - 16 - meeting would be rearranged and that they would discuss a stress risk management plan and further OH assessment (which the claimant had previously told Carmel Walsh she did not want).[59]Carmel Walsh sent the claimant an invitation to an attendance management meeting on 17 November 2020 because her absence had exceeded the 4 days permitted in the Review Period after her First Written Warning. On 17 November 2020 and 18 November 2020 the claimant was absent from work due to falling down the stairs on the first date (sickness absence leave was granted) and taking her son to university on the second date (emergency leave was granted).[60]On 19 November 2020 the claimant was absent from work and did not attend an online meeting which was scheduled in order to discuss the claimant’s absence and her failure to attend the attendance management meeting that was scheduled on 17 November 2020. On 20 November 2020 Carmel Walsh took HR advice on how to proceed with the claimant’s absence management, as she had been unable to meet with the claimant about her further absences during her review period. Following that advice, Carmel Walsh tried to arrange another review meeting on 20 November 2020, but the claimant did not respond to her meeting request so she rearranged it for 23 November 2020.[61]On 23 November 2020 the claimant sent a text message to Carmel Walsh stating that she was in a lot of pain with a migraine, and requesting that the claimant’s absence was recorded as part day absence. On 24 November 2020 the claimant was absent from work. A letter was sent to the claimant to warn her that if the claimant did not reply by 30 November 2020 Carmel Walsh would have to treat her absence as unauthorised and that it could lead to formal disciplinary proceedings. On 30 November 2020 Carmel Walsh took further HR advice on how to proceed with the claimant’s absence management as she had been unable to hold a welcome back meeting with the claimant since she had been absent from work from 17 November 2020. Carmel Walsh was advised to try contacting the claimant by way of posted letters or text message in order to carry out the Keeping in Touch meeting and to request consent for an Occupational Health referral.[62]On 7 December 2020 Carmel Walsh called the claimant to conduct a Keeping in Touch meeting. Carmel Walsh had tried to talk to the claimant about an Occupational Health referral and the claimant shouted during the call that she was sick of Carmel Walsh, called her a liar and the claimant disconnected the call.[63]Thereafter, on 14 December 2020, the claimant was due back at work. Carmel Walsh telephoned the claimant and the claimant stated that she had sent Carmel Walsh a WhatsApp message containing another fit note, indicating that she would be unable to attend work until 25 January 2021. Carmel Walsh offered to refer her to Occupational Health which the claimant did not accept.[64]It was decided by Lorna Pettifer that Sine Green should take over the claimant’s line management, at least on a temporary basis and the claimant was transferred to Sine Green’s line management on 17 December 2020. The claimant’s resistance in terms of having her attendance managed, which as line manager Carmel Walsh was - 17 - required to address, had meant that the relationship between the claimant and Carmel Walsh had deteriorated. Occupational Health Assessment on 13 February 2020[65]The claimant had an Occupational Health Assessment on 13 February 2020 and the report of the Occupational Health Practitioner can be found at pages 662 – 663 of the Hearing Bundle.[66]The Occupational Health report states: “Current Issues Nurjahan claims she has difficulties with light levels in the office. No medical evidence has been supplied to back this, so we are not aware of any specific condition, apart from her claim that light causes her headaches. Lux levels have been checked and they are within Health and Safety recommendation. I note mamnagement have tried several configurations of lighting around her desk, but she asked for total darkness, which cannot be provided as to taking into account the needs of other staff. There were no individual rooms to move her to so. Currently I am advised by Nurjahan that lighting has been managed and is comfortable . She does have an allergen history and this is presently concerning to her relating to her working environment. OH Opinion On assessment today recalled clinical history to date and inclusive of absence history: -09/12/19 to 20/12/19 due to Cellulitis following where she described this likely an insect bite at work -01/08/19 to 02/08/19 due to allergy reaction and eye infection -24/04/19 due to side effects from new medication -14/01/19 to 10/02/19 due to headaches and eye pain triggered by bright lights (awaiting glasses for screen use and reading) Nurjahan advised to a longer-term history of anxiety and depression which is accordingly managed. She also has a history of light sensitivity of which she has advised her employer on where I understand steps were taken to accordingly manage this. Today she advised the lighting (LUX) for her at work is now at a correct level but she hopes this will always be maintained and would not wish to work in a darker area as this would raise her anxiety . She also advised having had optician and ophthalmologist assessment being given advice on glasses, lubricating eye drops for dry eyes and not to avoid bright light completely. Breaks - 18 - including micro visual breaks are also very important when working on computers and simply looking away from the screen into distance to exercise the eyes.”[67]The Occupational Health report advised that the claimant was fit for work.[68]In relation to the lighting issues raised by the claimant the report states: “Adjustments have been made she describes lighting as comfortable her eyes feel well and she hopes such adjustments will be maintained and Lux measurements have been appropriately undertaken. She reports that the office is dirty and dusty and and being prone to allergic reaction from this. Where levels of dust are found to be raised management may wish to consider ways to reduce within the expertise of domestic services. … What light level would be right for Nurjahan`s issue in lux terms? I understand lighting levels have been correctly reviewed and she advises that the levels are now manageable and comfortable to her.”[69]There were lux readings referred to within the Occupational Health report.[70]According to the report, the claimant explained to the Occupational Health practitioner that she had stress related concerns at work, and advice was provided that a Stress Risk Assessment should be considered. It was stated that further Occupational Health intervention was unlikely to be helpful until any real or perceived workplace stressors are addressed.[71]It was reported that the claimant worked with two monitors three weeks ago, that she found this helpful and that she requested that these be returned to her and that visually the claimant worked better with these.[72]In terms of whether or not any type of glasses (anti reflective or other) would help the Occupational Health report states: “She has reviewed with her optician previously prescription glasses and an Optician/ Ophthalmologist this is the correct advisory source.”[73]In relation to other equipment, it is stated: “She advised that she had visually being supported by 2 DSE monitors, now only one and she would appreciate working with 2 as previously for visual support.” Reasonable Adjustments Lighting[74]Steve Dadds who managed the claimant until April 2019, was advised by the building manager at the material time that the lux levels in the office had to be between a minimum and maximum brightness. The claimant asked him to remove bulbs from - 19 - some of the lights and he explained that he could not do that. He stated that there were other members of staff with sight problems and reduction in light levels would have affected them.[75]On 11 January 2019 the claimant had expressed to Steve Dadds that she was not happy with the lighting levels. The claimant sat down with a folder over her head. Mr Dadds queried what she was doing and asked her to take the folder off her head.[76]The claimant advised Steve Dadds on 31 January 2019 that new glasses, tinted for use with a computer had been prescribed for her and that eye drops were prescribed also. The claimant further advised that she thought this would enable her to return to work in the next few days.[77]When Roberto Santandrea assumed line management responsibility for the claimant from April 2019, the claimant told him that she wanted to work away from direct light as she said it affected her vision and caused her headaches. The claimant requested to work in a darker corner of the room or for a screen to be placed on her desk to reflect the overhead lights. As a temporary solution the claimant was moved to a different location in the office which was away from the windows and where the artificial light levels near her desk were reduced. A few days after the claimant confirmed to Mr Santandrea that the lighting levels were comfortable for her. These lighting and seating arrangements were in place throughout Mr Santandrea’s management of the claimant.[78]In early 2020, at the claimant’s request, Carmel Walsh had arranged for the claimant to work on a different floor with another team, as she believed the light levels on that floor were less bright. When the team working on that floor moved out, the claimant could not remain on that floor working alone. Carmel Walsh arranged for the claimant to return to sit at the same desk she was seated at whilst working under Mr Santandrea’s management, with the light tubes above the desk removed. Provision of fan or placing her desk in a cooler area[79]The claimant brought her own fan into work (for her own use). A special chair and footstool[80]The claimant complained to Steve Dadds about neck and back pain and issues with the office lights in around September-October 2018. He contacted the work placement adjustments team in November 2018 for advice and an Occupational Health report was arranged. Following the assessment, he contacted the work placement adjustments team again and a further referral was arranged for an ergonomic furniture assessment. As a result of that report, an ergonomic chair and single leg raiser were ordered and delivered to the office for the claimant in April 2019. The claimant continued to use that equipment. Two monitors to work with - 20 -[81]Whilst the respondent’s employees were given second monitors to use when they picked up some work with HMRC, they had to return these after that work had finished. A number of employees including the claimant wanted to continue to use a second monitor after that time, but the respondent could not supply these straight away. As a temporary solution, Carmel Walsh showed the claimant how to split the screen so that she could see two systems on the screen at the same time. The work for HMRC had ended in January 2020 and the claimant went home following the COVID-lockdown in around Mid-March 2020.[82]Thereafter, Carmel Walsh advised in her evidence (which we accepted) that the claimant was provided with a surface pro and a separate monitor. Safety and security training[83]From the start of their employment the respondent requires that all members of staff sign a document to acknowledge their obligations under the Official Secrets Act, and all staff had to complete security training before they are allowed to work on and have access to the respondent’s records. Annual refresher training was provided (including to the claimant in 2018 and 2019). Every morning when a person logged on to the respondent’s computer system, they had to click past a screen which raised awareness of the respondent’s security policy. The claimant was expected by the respondent to undertake this training. January 2021 WhatsApp Incident[84]An employee identified as AF had posted photographs onto the team WhatsApp group which included the claimant on 30 November 2020. AF had taken photographs of the Universal Credit system showing customer details and there were photographs of an email showing another staff member’s photograph in the corner. Carmel Walsh stated in evidence that she was not aware of the photographs in question (which we accepted) and no disciplinary action was taken as a result of this incident.[85]The colleague posted screenshots from a training session, which included some customer information, in an internal team WhatsApp group. She had been guided to access the records as part of her training which was a legitimate business reason. AF had learning difficulties and thought that nobody else was following the posts; she made the screenshots with the intent to help herself to remember the training. This occurred on one occasion only, AF admitted to posting the screenshots (which she had deleted as soon as she realised) and in accepting responsibility for her actions, AF had made it clear that she would never do it again.[86]On 01 December 2020 Carmel Walsh, who was the Group Chat administrator, had closed the WhatsApp group and asked her team to delete the group chat from their mobile telephones.[87]On 02 December 2020 the claimant contacted Lorna Pettifer and said that customer information had been posted onto her team’s WhatsApp by an employee referred to with the initials AF. An investigation meeting took place with the claimant on 07 December 2020, AF on 20 January 2021, and Carmel Walsh on 27 January 2021. - 21 - The Management Investigation report (see pages 383-384 of the Hearing Bundle) prepared by Sine Green, Operations Manager – Stratford concluded that: “I have taken into account all the information gathered during this investigation and consider that the complaint is upheld. As there has been a breach of security and the complaint is upheld, I consider that there is a case to answer. I have been advised by the HR Caseworker to pass this to AF counter signing manager to consider disciplinary action. This would normally have been passed to her line manager, but she has been a witness in this case so this would not be appropriate.” Investigation into unauthorised access by the claimant March 2021[88]On 4 March 2021 Sine Green notified the claimant that she would be conducting an investigation into the allegations that the claimant accessed the records of two people living at the claimant’s home address between 16 March 2020 and 02 July 2020 without authorisation (see pages 435-438 of the Hearing Bundle). The claimant was notified that these multiple unauthorised accesses can be deemed gross misconduct and the investigation report will show whether, on the balance of probability, there was a case to answer.[89]On 10 March 2021 Lorna Pettifer received an email from the internal abuse team (see pages 439-440 of the Hearing Bundle), containing another report of alleged unauthorised access by the claimant where she had accessed her own record using her National Insurance number (NINO) on 15 and 17 February 2021. Further instances of accessing the claimant’s son’s and husband’s records were also recorded from 16 March 2020 and 2 July 2020 in this report (see pages 447-448 of the Hearing Bundle).[90]Sine Green sent the claimant a letter inviting her to attend an interview on 24 March 2021 to cover both reports of alleged unauthorised access (see pages 494-495 of the Hearing Bundle).[91]The investigation interview went ahead on 24 March 2021 via Microsoft Teams because the claimant was working from home (see pages 496-499 of the Hearing Bundle).[92]Following her investigation Sine Green concluded (see pages 514-517 of the Hearing Bundle) that the claimant had not provided a sufficient explanation for her actions and that there was a case to answer.[93]Sine Green took advice from CSHR on whether Lorna Pettifer could act as the decision maker as she was part of the line management chain. The guidance stated that the investigation manager (Sine Green) should not take on the role of decision maker in a gross misconduct case and that the decision maker should be one grade higher than the investigation manager. As Lorna Pettifer was one grade higher than Sine Green, she took on the role of decision maker.[94]On 9 April 2021 Lorna Pettifer notified the claimant that she would be the decision maker following Sine Green’s investigation into her alleged unauthorised access. She invited the claimant to attend a formal meeting on 21 April 2021 and advised that the - 22 - allegations represented gross misconduct offences and the meeting may therefore result in the claimant’s dismissal.[95]On 21 April 2021, the claimant sent an email to state that she could not attend the meeting because she was in hospital with her son. The claimant sent an email to Sine Green the same day to request annual leave, which was granted. Lorna Pettifer rescheduled the disciplinary meeting to the following day. Disciplinary Meeting[96]On 22 April 2021 the disciplinary meeting went ahead via Microsoft Teams. At the time the claimant was still working from home.[97]A copy of the record of that meeting can be found at pages 533-539 of the Hearing Bundle.[98]The claimant was given an opportunity to provide mitigation for accessing her own and her family’s records without authorisation. The claimant did not give any further explanation for this other than what was detailed in Sine Green’s investigation report. Discussions took place in relation to training and the respondent’s policies and procedures in the following terms: "LP – so you have done all your training except the last 2 years? NK - I have passed all the training, and in the JC, it is stuck in my head, even last night I said to my husband I would never betray my work for money as that is my identity it is something I couldn’t live with. LP – To recap, there were four system accesses for three different people, your husband, your son and two for yourself, in to the CIS system, but you have no recollection of those. You think it is because of cutting and pasting and you have accidentally put the NINO’s in. At no point did you notice you had looked up your families or your own information. So you don’t believe you have gained any information from that? You are aware of the departments security procedures and you have done the training over the years in the department and you are aware of DWP policies about looking up personal information on the systems. NK – yes." Claimant’s dismissal April 2021[99]Lorna Pettifer sent the claimant a letter dated 27 April 2021 stating, “I am writing to confirm the outcome of your meeting with me on 22 April 2021 to discuss the gross misconduct case brought against you”. Lorna Pettifer confirmed in that letter that the claimant had been dismissed with immediate effect without notice or payment in lieu of notice (with her last day of service being 28 April 2021) and she out the reasons for her decision (see pages 547 to 549 of the Hearing Bundle).[100]She summarised the four allegations and what the claimant had said in response to those allegations, and she advised that: - 23 - "My investigation has concluded that over a period of 11 months you have made unauthorised access to your own, your sons and your husbands CIS accounts. You accessed the accounts on 16 March 2020, 2 July 2020, 15 February and 17 February 2021. On the last two occasions, there were multiple accesses. This constitutes unauthorised browsing of the department's computer system."[101]Lorna Pettifer set out the following details relating to the claimant’s mitigation: "At our meeting you said:• That this is due to using CIS since working from home – however the first access was made while you were still working in the office.• That you were unfamiliar with CIS, didn’t like the system and had asked for training. If, as you suggest, the issue was related to ‘cutting and pasting’ NiNos and inadvertently having cut and paste family NiNo’s for personal correspondence then this issue is unrelated to CIS training.• That you did not realise that you had made the accesses as you did not check the customer details on the screen. It is the role of a Decision Maker to be checking that customer details are up to date and correct on all computer systems during their work to prevent customer information being sent to incorrect addresses.• That you have been having memory problems.• That you are feeling much better since your change of line manager, however this occurred before the inappropriate accesses in February 2021."[102]She concluded in relation to those matters: "Whilst I have no reason to believe your actions to be suspicious or malicious you have provided no legitimate reason or reasonable justification for accessing these records." Claimant’s appeal May 2021[103]The claimant sent her appeal to the respondent by email dated 07 May 2021 (see pages 559-561 of the Hearing Bundle). The claimant’s grounds appeal included the following: "I have been dismissed from my job on the 28/04/2021 due to an unknown mistake which I have made that I have not been aware of at the time when the incidents occurred. I have been suffering from work related stress and depression for a very long time. It appeared my caring responsibilities towards my children due to their disabilities have made a very big impact on my career as my line managers were not willing to support me with that and few occasions, I was forced to take unpaid career breaks. - 24 - I received threats of losing my job again and that time I did try my best to make a formal complaint but it seemed like all the managers were supporting one another. I was also told by few of my colleagues that almost all the managers are white and they always try to help one another. They also told me in 2016 when I joined the Stratford office if you are black or Asian then you are at the highest risk of being targeted for dismissal. Every time I pointed out something that was wrong, I have been made quite by some of my colleagues. They told me to be quite and do as I am told otherwise; I will become the target for the managers to get rid of me.”[104]The claimant also states: “The second incident happened when I raised issues about the lights above my desk which was causing me headaches and migraine and I started having issues with my eye sight. During that time there was reallocating of seats as we were being trained for UC and the Income Support staff were joining the ESA team. It appeared that some managers were allocating their favorite staff members to the best seats that they wanted rather than looking at people’s disability needs. I did not have any issues with that but it was affecting my eye sights and I was being laughed at by my Line manager who then advised me to wear sunglasses if the light is bothering me. I was being shouted at in front of other colleagues for putting a paper over my computer to stop the reflection of the light.”[105]An appeal meeting took place on 02 June 2021 and the record of that meeting is at pages 603-620 of the Hearing Bundle. The claimant’s appeal meeting was chaired by Shaun Curnow.[106]During her appeal meeting the claimant stated: "54. SK – I am 100% confident I will get the best result from this meeting. My doctor is aware of everything that is going on. If necessary, I will take this to Industrial Tribunal. I have witnesses where I was crying at the office. They have been trying to get me out of the office due to my caring responsibilities. If I have to go to tribunal, there are many, many other issues I will have to bring up."[107]The claimant talked through the process of opening a case file in considerable detail which had several steps described using alpha numerals ranging from a to r (see pages 615 to 616 of the Hearing Bundle).[108]The claimant was asked at the end of the meeting if there was anything else she wished to add. The claimant stated:"193. SK – my doctor has raised serious concerns about my depression. He has tried to support me and he is referring me to a psychiatrist. The medication is no longer helping me and they want to review changing my medication.194. My whole family is suffering because I am suffering.195. I am getting some support from Social services now.196. I want to go back to work but I cannot go back to the same office. It is the - 25 - worst fear. I don’t know if I can work normally anyway so I don’t know if I can go back to work. This is constantly haunting me.197. SC – I don’t know if your GP is aware you are having this call but may I suggest you call him afterwards to let him know?198. SK – He does know I have been having problems. The only encouragement I have had is from one of my colleagues who has been through Tribunal before and she encourages me to not let them bully me. She also has had a problem with Carmel. They are still trying to get rid of her. She is supporting me and tells me to stay strong.199. SC – Thank you for your time today, We will get the notes ready. I appreciate the time given to day and grateful for your openness.200. SK – Thank you for being patient and listening to me."[109]Shaun Curnow sent a letter to the claimant dated 09 July 2021 informing the claimant that her appeal was not upheld and setting out the basis for this (see pages 639-642 of the Hearing Bundle).[110]As part of his findings, Shaun Curnow stated: "You have stated that you did not have access to SOP and unable to complete the relevant online learning for 2 years. I understand you undertook your Security at DWP e-learning 2018/2019 on 12 October 2018 and Security at DWP elearning 2019/2020 on 15 October 2019. Given your length of service, I think it reasonable to expect you to have sufficient experience to know what is or is not appropriate use. Each time a member of staff logs on to their system they are presented with notice of the DWP Acceptable Use Policy, what to do if that policy is not understood. The notice is copied below and access to systems cannot be made unless the individual clicks “Ok”. Copy of that notice below: DWP Unauthorised use prohibited DWP’s devices are only to be used in accordance with the DWP Acceptable Use Policy. Your access and use of this computer constitutes your immediate acceptable of the provisions of the Acceptable Use Policy. Please press OK to confirm that you understand this message and that you will read the Acceptable Use Policy if you have not already done so. DWP may monitor and record the use of its devices including emails, telephony and access to internet sites. Inappropriate use of the departments devices may lead to disciplinary action and/or legal proceedings. Please ask your line manager if you do not understand this message. OK. This is required each time you start your computer and log onto the system. I feel this clearly states the obligations you are under when using DWP systems and reinforces the message that monitoring takes place and the consequences of failing to uphold those requirements. Given your length of service I have not found any mitigation to explain the unauthorised access in terms of being unaware of the consequences of unauthorised access.I have reviewed the evidence bundles detailing the computer access, the resulting investigation and decision making process. I could find no serious or significant departure from guidance set out in DWP instructions. As such I do not feel this would give me grounds to consider the original decision to be incorrect from a procedural point view. WhatsApp GroupA situation arose where information was inappropriately shared on a WhatsApp group by your colleagues. You raised this as a concern to management for investigation. I could see no evidence of this being used in the investigation or - 26 - decision making process. As such I am unable to use this to mitigate against the decision made. I cannot comment on the extent of any investigation linked to this incident because I feel that is beyond my remit."[111]In conclusion, Shaun Curnow stated: "The contractual relationship between the Department and its employees is based on mutual trust and expected standards. The Civil Service Code, DWP Standards of Behaviour Policy and DWP Standards of Behaviour Procedures sets out the expected standard of behaviour for all DWP employees. Employees are also required to be aware of, and comply with DWP’s security policies and standards. The breaches amounted to abuse of position as a DWP employee; and amounts to Gross Misconduct under paragraph 11.1.2 of the Information Security Scenario Matrix, the outcome of which is potentially a dismissal. It would be reasonable to consider any mitigation that explains the behaviour. However, in line with policy, mitigation needs to be events or factors outside the individual’s wilful control. Based on the information provided, I felt it consistent with DWP’s Information Security and Standards of Behaviour policies to reject the appeal and uphold the original decision to dismiss for Gross Misconduct. It appears to me that there was a conscious decision to access DWP’s IT systems on multiple occasions without authorisation or a legitimate business reason; and there are no mitigating circumstances, which could explain the behaviour."[112]In relation to the claimant’s discrimination and other allegations Shaun Curnow states: "I recognise from what you have said that you felt bullied and harassed. You have mentioned that you felt some of this was due to racial or discriminatory factors particularly with the Leadership Team over a period of time. I have had to balance this with the actions you took when making unauthorised access to the CIS system. The conclusion I have come to is that any member of staff, particularly with your experience, would be reasonably expected to know that accessing those records leaves one exposed to disciplinary action. As such, even though these are serious allegations, I do not feel this offers sufficient mitigation to change the original decision. I do take seriously the allegations you have made about the culture within the office and how that has impacted on your mental wellbeing. I have separately referred those issues for further investigation."[113]He stated that he felt that a separate investigation into these allegations needed to take place, but that it was outside of his remit to investigate the same as Appeal - 27 - Manager. He contacted CSHR to find out whether she could bring a post-dismissal grievance and they advised him to raise it through HR mediation services, so he approached them and asked for their advice.[114]Philip Harwood was appointed as the investigator and he wrote to the claimant, but the claimant questioned whether a post-dismissal grievance would overturn the decision to dismiss her (see pages 648-649 of the Hearing Bundle). Philip Harwood took CSHR advice on this and wrote to the claimant to state that he could not guarantee it would change the outcome and asked whether she would still like to go ahead with the grievance (see page 657 of the Hearing Bundle). The claimant did not respond and accordingly the action was closed in October 2021 (see page 658 of the Hearing Bundle). Claimant’s claim[115]The claimant started ACAS Early Conciliation on 26 July 2021. The ACAS Early Conciliation Certificate was issued on 27 August 2021.[116]The claimant presented the ET1 Form to the Tribunal on 22 March 2022.[117]The respondent responded to the claimant’s claim by way of an ET3 and Grounds of Resistance dated 03 May 2022, and an Amended Grounds of Resistance was sent to the Tribunal on 12 July 2022. EJ B Elgot’s Judgment on time bar[118]By a Reserved Judgment which was issued to parties on 05 April 2023, Employment Judge B Elgot found the following: “2. The claims of unfair dismissal, unlawful deductions from wages, breach of contract (failure to pay notice pay), for accrued and unpaid holiday pay and the complaint that the Claimant has been subjected to detriment on the ground that she made protected disclosures are STRUCK OUT and DISMISSED. 3. This is because an Employment Tribunal has no jurisdiction to hear these claims and they therefore have no reasonable prospect of success. Each of the claims has been lodged outside the relevant time limit. I decline to extend time because I have determined that it was reasonably practicable for the Claimant to have filed these claims within the time limits. 4. The claim of disability discrimination is out of time but is not struck out and remains listed for hearing in person on 26,27 and 28 July 2023 at East London Hearing Centre. I am satisfied in relation to this claim that it is just and equitable to extend time until 22 March 2022 which is the date when the Claim (ET1) was lodged.” Observations - 28 -[119]On the documents and witness evidence presented, the Tribunal makes the following essential observations on the evidence restricted to those necessary to determine the List of Issues:[120]The standard of proof is on the balance of probabilities which means that if the Tribunal considers that on the evidence the occurrence of an event was more likely than not, and the Tribunal is satisfied that the event did occur. Facts may be proven from direct evidence that are primary facts or by reasonable inferences drawn by primary facts that are secondary facts.[121]We considered that a substantial amount of the evidence in this case could be distilled from the documents to which we were referred.[122]We noted the respondent’s admissions in relation to the issue of disability. In relation to any disputed matters related to the issue of disability, we carefully considered the claimant’s evidence in relation to the effects of her disability, and the effects of her children’s disabilities on their day-to-day activities at the material times.[123]In relation to the incident concerning the claimant placing a folder over her head on 11 January 2019, we preferred Steve Dadds’s evidence. We found that Steve Dadds asked the claimant to remove the folder from her head as he felt this was not appropriate. His evidence was clear and logical taking account of all the circumstances.[124]In their witness statements, Roberto Santandrea, Carmel Walsh, and Steve Dadds advised that they could not recall the claimant requesting a fan or her desk being moved to a cooler area. We accepted their evidence which we found to be credible and consistent. The claimant says in her statement that she had brought her own fan into work. There is no record of the claimant requesting a fan or her desk to be placed in a cooler area within the documentary evidence to which we were referred. Although the claimant refers to issues relating to being able to use her fan in certain areas of the office without impacting on her colleagues, she acknowledges that when she moved to Mr Santandrea’s team, her fan was not causing issues to any colleagues as she had been moved to another side of the office. There is no record of the claimant raising any concerns in relation to this issue in terms of her complaint in the Agreed List of Issues.[125]The claimant says that Carmel Walsh removed the claimant’s second monitor and refused to give her a second monitor. We did not accept that Carmel Walsh refused to provide the claimant with a second monitor. We accepted that it would have taken time to order additional monitors after the HMRC work had been concluded, we took into account that the claimant went home in Mid-March 2020 due to the COVID-19 lockdown, and thereafter she was awaiting computer equipment. After that initial period of time, Carmel Walsh advised in her evidence that the claimant was provided with a surface pro and a separate monitor, and we accepted her evidence in this regard. We accepted that she knew what equipment was issued to her team including the claimant during the COVID-19 period of time. We did not accept that she displayed favouritism to other staff in respect of this allegation and we note the claimant has not named any staff in particular (whom it is alleged that Carmel Walsh displayed favouritism towards).[126]In relation to safety and security training, we were not satisfied that the claimant was blocked since 2019 from accessing this training. There was no evidence before us - 29 - to support the claimant’s position that Carmel Walsh had blocked the claimant’s access as alleged by the claimant in her witness statement. There was no record of the claimant speaking to Carmel Walsh about not being able to access the training system.[127]We accepted Lorna Pettifer’s explanation that the circumstances of the information breach by AF were very different. We set out the relevant findings above. The incident relating to AF only happened on one occasion, she admitted to posting the screenshots (which she had deleted as soon as she realised) and in accepting responsibility for her actions AF had made it clear that she would never do it again.[128]The four allegations made in respect of the claimant’s conduct were investigated and an investigation report was produced. Lorna Pettifer had focussed on that investigation, and she made clear findings in respect of whether the alleged conduct took place and also in respect of the claimant’s mitigation. Her evidence was consistent and in line with the documentation before the Tribunal. Shaun Curnow’s evidence was also clear and consistent, and he provided a detailed outcome letter addressing the claimant’s points of appeal in a concise fashion.[129]In contrast, the claimant’s evidence was not supported by a number of documents to which we were referred. By way of example, it was contradictory in that she stated that reasonable adjustments were not in place, but on examination of the oral and documentary evidence, it transpired that the respondent had taken a number of steps to address the claimant’s reasonable adjustments. We considered that the reasons the claimant had put forward for accessing data in relation to the four allegations were highly improbable. We noted that numerous steps were required to access data and records, as described by the claimant during the appeal hearing (as set out above in our findings of fact). There was insufficient evidence of insight on the claimant’s part in respect of the unauthorised accesses that had been identified in the course of the investigation.[130]We also felt that there was a stark inconsistency in terms of the claimant’s description of events, for example, her description of events in terms that she faced trauma and torture at work and that she suffered three years of torture that was not easy to forget. There was no supporting evidence to which we were referred in support of the claimant’s contentions that she was subjected to the treatment as alleged at paragraph 37 of her witness statement. The witness evidence and the documentary evidence to which we were referred showed that the respondent was on the whole supportive toward the claimant’s personal circumstances.
The Law
[131]To those facts the Tribunal applied the law: S. 6 Equality Act 2010 definition of disability[132]Disability is one of the protected characteristics identified in Section 4 of the Equality Act 2010 (“EqA”). It is further defined in Section 6(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 - 30 - normal day-today activities. Section 212(1) defines “substantial” as meaning “more than minor or trivial”; while Schedule 1, paragraph 2, further defines “long-term effects”.[133]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. 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. The word “likely” has been interpreted by the House of Lords to mean “could well happen”: SCA Packaging Ltd v Boyle [2009] IRLR 746.[134]The time at which to assess the disability is the date of the alleged discriminatory act (Richmond Adult Community College v McDougall [2008] ICR 431 (para 24) and Cruickshank v VAW Motorcast Ltd 2002 ICR 729, EAT). In Goodwin-v-Patent Office [1999] IRLR 4, the EAT gave detailed guidance as to the approach which ought to be taken in determining the issue of disability. A purposive approach to the legislation should be taken.[135]A Tribunal ought to remember that, just because a person can undertake day-today activities with difficulty, that does not mean that there was not a substantial impairment. The focus ought to be on what the claimant cannot do or could only do with difficulty and the effect of medication ought to be ignored for the purposes of the assessment.[136]It is not always possible or necessary to label a condition, or collection of conditions. The statutory language always had to be borne in mind; if the condition caused an impairment which was more than minor or trivial, however it had been labelled, that would ordinarily suffice. In the case of mental impairments, however, the value of informed medical evidence should not be underestimated.[137]Appendix 1 to the EHRC Code of Practice of Employment states that there is no need for a person to establish a medically diagnosed cause for their impairment. What is important to consider is the effect of the impairment and not the cause: Ministry of Defence v Hay [2008] ICR 1247.[138]In Aderemi v London and South Eastern Railway Limited [2013] ICR 591, the EAT held that the Tribunal “has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other.”[139]An impairment can vary in its effects over time, and it is a matter for the Tribunal, having regard to all the evidence, to consider whether it has been established that there has been a substantial adverse effect over the relevant period (Sullivan v Bury Street Capital Ltd UKEAT/0317/19/BA). - 31 -[140]Likelihood of the effect lasting 12 months or more is to be assessed at the time of the alleged contravention as confirmed by the Court of Appeal in All Answers Ltd v W & R [2021] EWCA Civ 606 at paragraph 26: “The question, therefore, is whether, as at the time of the alleged discriminatory acts, the effect of an impairment is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts. A tribunal is making an assessment, or prediction, as at the date of the alleged discrimination, as to whether the effect of an impairment was likely to last at least 12 months from that date. The tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months. That is what the Court of Appeal decided in McDougall v Richmond Adult Community College: see per Pill LJ (with whom Sedley LJ agreed) at paragraphs 22 to 25 and Rimer LJ at paragraphs 30-35. That case involved the question of whether the effect of an impairment was likely to recur within the meaning of the predecessor to paragraph 2(2) of Schedule 1 to the 2010 Act. The same analysis must, however, apply to the interpretation of the phrase “likely to last at least 12 months” in paragraph 2(1)(b) of the Schedule. We note that that interpretation is consistent with paragraph C4 of the guidance issued by the Secretary of State under section 6(5) of the 2010 Act which states that in assessing the likelihood of an effect lasting for 12 months “account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood”.”[141]In EBR Attridge LLP v Coleman [2010] ICR 242 (“Coleman No. 2”), the EAT addressed the question of how domestic legislation was to be construed to include associative disability discrimination, following the decision of the ECJ in Coleman v Attridge Law [2008] ICR 1128. The ECJ had held that the Framework Directive was not limited to persons who were themselves disabled, ruling: “50. Although, in a situation such as that in the present case, the person who is subject to direct discrimination on the grounds of disability is not herself disabled, the fact remains that it is the disability which ... is the ground for the less favourable treatment ... Directive 2000/78, which seeks to combat all forms of discrimination on grounds of disability in the field of employment and occupation, applies not to a particular category of person but by reference to the grounds mentioned in article 1. ... 56. ... Directive 2000/78, and, in particular, articles 1 and 2(1) and (2)(a) thereof, must be interpreted as meaning that the prohibition of direct discrimination laid down by those provisions is not limited only to people who are themselves disabled. ... 58. Since, under article 2(3) of Directive 2000/78, harassment is deemed to be a form of discrimination within the meaning of article 2(1), it must be held that ... the Directive, and, in particular, articles 1 and 2(1) and (3) thereof, must be interpreted as not limited to the prohibition of harassment of people who are themselves disabled.”[142]Ms Coleman’s claim of disability discrimination was remitted to the Tribunal, which had determined that it had jurisdiction to hear the case, notwithstanding that Ms - 32 - Coleman was not, herself, disabled. Dismissing the employer’s appeal, the EAT (Underhill P (as he then was) presiding) held that additional words could be written into the relevant provisions of the Disability Discrimination Act 1995 (the relevant legacy statute then in force) so as to make clear: “16. ... that the putative victim has suffered adverse treatment on a proscribed “ground”, namely disability, and the fact that the disability is not his own is not of the essence ...”[143]It was not disputed by the claimant and the respondent at the hearing before us that the same analogy could be applied in respect of section 13 of the EqA (direct disability discrimination). It was not suggested that the same principle would apply in respect of the claimant’s complaints made pursuant to sections 15 and 20 and 21 of the EqA. Section 13 of the Equality Act 2010 Direct disability discrimination[144]Further, direct discrimination is defined at Section 13(1) of the EqA as follows: - “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” The protected characteristic of disability is listed at section 4 of the EqA (as defined in section 6, see above).[145]The concept of treatment being less favourable inherently suggests some form of comparison and in such cases section 23(1) applies: “On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case.”[146]The effect of section 23 of the EqA as a whole is to ensure that any comparison made must be between situations which are genuinely comparable. The case law, however, makes it clear that it is not necessary for a claimant to have an actual comparator to succeed. The comparison can be with a hypothetical person.[147]Further, as the EAT and appellate courts have emphasised in a number of cases, including Amnesty International v Ahmed [2009] IRLR 884, in most cases where the conduct in question is not overtly related to [the protected characteristic], the real question is the “reason why” the decision maker acted as he or she did.[148]Answering that question involves consideration of the mental processes (whether conscious or subconscious) of the alleged discriminator, and it may be possible for the Tribunal to make a finding as to the reason why a person acted as he or she did without the need to concern itself with constructing a hypothetical comparator.[149]The basic question in a direct discrimination case is: what are the grounds or reasons for treatment complained of? In Amnesty International v Ahmed [2009] IRLR 884 the EAT recognised two different approaches from two (then) House of Lords authorities -(i) in James v Eastleigh Borough Council [1990] IRLR 288 and(ii) in Nagarajan v London Regional Transport [1999] IRLR 572. In some cases, such as - 33 - James, the grounds or reason for the treatment complained of is inherent in the act itself.[150]In other cases, such as Nagarajan, the act complained of is not discriminatory but is rendered so by discriminatory motivation, being the mental processes (whether conscious or unconscious) which led the alleged discriminator to act in the way that he or she did. The intention is irrelevant once unlawful discrimination is made out. That approach was endorsed in R (on the application of E) v Governing Body of the Jewish Free School and another [2009] UKSC 15.[151]The Tribunal should draw appropriate inferences from the conduct of the alleged discriminator and the surrounding circumstances (with the assistance, where necessary, of the burden of proof provisions) – as explained in the Court of Appeal case of Anya v University of Oxford [2001] IRLR 377.[152]In Glasgow City Council v Zafar [1998] IRLR 36, also a (then) House of Lords case, it was held that it is not enough for the claimant to point to unreasonable behaviour. He must show less favourable treatment, one of whose effective causes was the protected characteristic relied on.[153]Thus, the reason for the treatment need not be the main or sole reason but must have at least a significant (or more than trivial) influence on the treatment to amount to an effective cause of it. In “reason why” cases the matter is dispositive upon determination of the alleged discriminator’s state of mind. In “criterion cases” there is no need to consider the alleged discriminator’s state of mind when the treatment complained of is caused by the application of a criterion which is inherently or indissociably discriminatory (R (E) v Governing Body of JFS [2010] 2AC 728, SC).[154]In Shamoon v Chief Constable of the RUC 2003 IRLR 285, a (then) House of Lords authority, Lord Nichols said that a Tribunal may sometimes be able to avoid arid and confusing debate about the identification of the appropriate comparator by concentrating primarily on why the complainant was treated as she was and leave the less favourable treatment issue until after they have decided what treatment was afforded. Was it on the prescribed ground or was it for some other reason? If the former, there would usually be no difficulty in deciding whether the treatment afforded the claimant on the prescribed ground was less favourable than afforded to another.[155]Direct discrimination may be intentional or it may be subconscious (based upon stereotypical assumptions). The Tribunal must consider the conscious or subconscious mental processes which caused the employer to act. This is not necessarily a question of motive or purpose and is not restricted to considering ‘but for’ the protected characteristic would the treatment have occurred (see Shamoon). Burden of proof[156]The burden of proof provisions in relation to discrimination claims are found in Section 136 of the EqA. Section 136(2) of the EqA provides that “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a - 34 - person (A) contravened the provision concerned, the court must hold that the contravention occurred.”[157]However, Section 136(3) of the EqA goes on to provide that: “But subsection (2) does not apply if A shows that A did not contravene the provision.[158]Finally, in terms of Section 136(6), a reference to “the court” includes a reference to an Employment Tribunal.[159]The burden of proof is considered in two stages. Giving the judgment of the Court of Appeal in Igen Limited v Wong [2005] ICR 931 (CA), Peter Gibson LJ said in paragraph 17:“The statutory amendments clearly require the employment tribunal to go through a two-stage process if the complaint of the complainant is to be upheld. The first stage requires the complainant to prove facts from which the tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld.”[160]The Court of Appeal, in Igen Limited v Wong, set out the position with regard to the drawing of inferences in discrimination cases.[161]It is unusual to have direct evidence as to the reason for the treatment (discrimination may not be intentional and may be the product of unconscious bias or discriminatory assumptions) (Nagarajan v London Regional Transport [1999] 4 All ER 65). Evidence of the reason for the treatment will ordinarily be by reasonable inference from primary facts. At Stage 1 proof is of a prima facie case and requires relevant facts from which the tribunal could infer the reason. Relevant facts in appropriate cases may include evasive or equivocal replies to questions or requests for information; failure to comply with a relevant code of practice; the context in which the treatment has occurred including statistical data; the reason for the treatment (See Madarassy v Nomura International Plc [2007] ICR 867 (CA)). “In so far as this [information] was in the hands of the employer, the claimant could have identified the information required and requested that it be provided voluntarily or, if that was refused, by obtaining an order from the Tribunal” (Efobi v Royal Mail Group [2019] EWCA Civ 19).[162]Assessment of Stage 1 is based upon all the evidence adduced by both the claimant and the respondent but excluding the absence of an adequate (i.e. nondiscriminatory) explanation for the treatment (which is relevant only to Stage 2) (See Madarassy). All relevant facts should be considered but not the respondent’s explanation, or the absence of any such explanation (Laing v Manchester City Council [2006] ICR 1519, EAT and Efobi). The respondent’s explanation for its conduct provides the reason why he has done what could be considered a discriminatory act. “Most cases turn on the accumulation of multiple findings of primary fact, from which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts” (See Madarassy). “In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts” (See Igen v Wong [2005] ICR 935). - 35 -[163]The employer must seek to rebut the inference of discrimination by explaining why he has acted as he has (See Laing). The treatment must be “in no sense whatsoever” because of the protected characteristic (Barton v Investec 2003 IRC 1205 EAT). The explanation must be sufficiently adequate and cogent to discharge the burden and this will depend on the strength of the Stage 1 prima facie case (Network Rail Infrastructure Limited v Griffiths Henry 2006 IRLR 865). The Tribunal may elect to bypass Stage 1 and proceed straight to Stage 2, if they are satisfied that the reason for the less favourable treatment is fully adequate and cogent (See Laing).[164]In Madarassy, the Court of Appeal found that the words “could conclude” must mean “a reasonable Tribunal could properly conclude” from all the evidence before it, meaning that the claimant had to “set up a prima facie case”. That done, the burden of proof shifted to the respondent (employer) who had to show that they did not commit (or is not to be treated as having committed) the unlawful act. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal could conclude that, on balance of probabilities, the respondent had committed an unlawful act of discrimination.[165]The Supreme Court, in Hewage v Grampian Health Board [2012] ICR 1054 (SC), held that Tribunals should be careful not to approach the Igen guidelines in too mechanistic a fashion, and the Court of Appeal has confirmed that approach under the EqA in its Judgment in Ayodele v Citylink [2018] IRLR 114 (CA). The Supreme Court stated at paragraph 32 of their decision: “The points made by the Court of Appeal about the effect of the statute in these two cases could not be more clearly expressed, and I see no need for any further guidance. Furthermore, as Underhill J pointed out in Martin v Devonshires Solicitors [2011] ICR 352, para 39, it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.” Section 15 – Equality Act 2010[166]The definition of discrimination arising from disability in EqA is as follows: “Section 15 Discrimination arising from disability (1)A person(a) (A) discriminates against a disabled person(b) (B) if— (a)A treats B unfavourably because of something arising in consequence of B's disability, and (b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2)Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”[167]Guidance as to how to apply the test under section 15 was given in Pnaiser v NHS England [2016] IRLR 170, EAT:- - 36 -a. Was there unfavourable treatment and by whom?b. What caused the treatment, or what was the reason for it?c. Was the cause/reason 'something' arising in consequence of the claimant's disability? This stage of the test involves an objective question and does not depend on the thought processes of the alleged discriminator.d. The knowledge requirement is as to the disability itself, not extending to the 'something' that led to unfavourable treatment. Something arising[168]The EAT held in Hall v Chief Constable of West Yorkshire Police [2015] IRLR 893: The “something arising” did not need to be the sole or principal cause of the treatment, but required to be at least an effective cause, or have a significant influence on, the treatment. The EAT considered in in terms of the Tribunal’s reasoning: “Firstly, it appeared to consider that it was necessary for the Claimant’s disability to be the cause of the Respondent’s action in order for her claim to succeed. Secondly, it made a contrast between the cause of the action and a background circumstance. This leaves out of account a third logical possibility, which, it seems to me, is present on the looser language of section 15(1); i.e. a significant influence on the unfavourable treatment, or a cause which is not the main or the sole cause, but is nonetheless an effective cause of the unfavourable treatment.”[169]The process applicable under a section 15 claim was explained by the EAT in Basildon & Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305: “The current statute requires two steps. There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The Tribunal has first to focus upon the words ‘because of something,’ and therefore has to identify ‘something’ – and second upon the fact that that ‘something’ must be ‘something arising in consequence of B's disability,’ which constitutes a second causative (consequential) link. These are two separate stages.''[170]In City of York Council v Grosset [2018] IRLR 746, Lord Justice Sales held that “it is not possible to spell out of section 15(1)(a) a … requirement, that A must be shown to have been aware when choosing to subject B to the unfavourable treatment in question that the relevant ‘something’ arose in consequence of B's disability”.[171]The EAT held in Sheikholeslami v University of Edinburgh [2018] IRLR 1090 that: “the approach to s 15 Equality Act 2010 is now well established and not in dispute on this appeal. In short, this provision requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) something? and(ii) did that something arise in consequence of B's disability? The first issue involves an examination of the putative discriminator's state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the - 37 - ‘something’ was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.”[172]In iForce Ltd v Wood UKEAT/0167/18 the EAT held that there could be a series of links but required that there was some connection between the something and the disability.[173]In Dunn v Secretary of State for Justice [2019] IRLR 298 the Court of Appeal considered within the background law to that case that “It is a condition of liability for disability discrimination both under section 13 and under section 15 that the complainant should have been treated in the manner complained because of either (under section 13) his or her disability or (under section 15) the "something" which arises in consequence of that disability. ” This will typically involve establishing that the disability or relevant related factor operated on the mind of the putative discriminator, as part of his conscious or unconscious mental processes. This is not, in this context, the same as examining 'motive'.[174]In Robinson v Department of Work and Pensions [2020] EWCA Civ 859, the Court of Appeal held it is not enough that but for their disability an employee would not have been in a position where they were treated unfavourably – the unfavourable treatment must be because of the something which arises out of the disability. In consequence of disability[175]Paragraph 5.9 of the Equality and Human Rights Commission Equality Act 2010 Code of Practice states “The consequences of a disability include anything which is the result, effect or outcome of a disabled person’s disability. The consequences will be varied, and will depend on the individual effect upon a disabled person of their disability. Some consequences may be obvious, such as an inability to walk unaided or inability to use certain work equipment. Others may not be obvious, for example, having to follow a restricted diet.” Unfavourable treatment[176]In Williams v Trustees of Swansea University Pension and Assurance Scheme [2017] IRLR 882 the Court of Appeal did not disturb the EAT’s analysis, in that case, that the word “unfavourable” was to be contrasted with less favourable, the former implying no comparison, the latter requiring it. That was undisturbed by the Supreme Court when it later considered the case. The Equality and Human Rights Commission Equality Act 2010 Code of Practice states at paragraph 5.7 that the phrase means that the disabled person “must have been put at a disadvantage.” Reference to the measurement against an objective sense of that which is adverse as compared to that which is beneficial was made in T-System Ltd v Lewis UKEAT/0042/15.[177]In the Williams case, Lord Carnwath stated at paragraph 27: “Since I am substantially in agreement with the reasoning of the Court of Appeal, I can express my conclusions shortly, without I hope disrespect to Ms Crasnow’s carefully developed submissions. I agree with her that in most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in - 38 - section 15 and analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. While the passages in the Code of Practice to which she draws attention cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section.”[178]An employer also has a defence to a claim under s 15 if it can show that the unfavourable treatment was a proportionate means of achieving a legitimate aim. If the aim is legitimate, the Tribunal must consider whether the means used to achieve it correspond to a real need of the undertaking, are appropriate with a view to achieving the aim in question and are necessary to that end: Stott v Ralli Ltd (EA-2019-000772- VP) at [79]. Assessing proportionality involves an objective balancing of the discriminatory effect of the treatment on the employee and the reasonable needs of the party responsible for the treatment: Hampson v Department of Education and Science [1989] ICR 179, CA and other cases summarized recently in Department of Work and Pensions v Boyers (UKEAT/0282/19/AT) at [29] per Matthew Gullick (sitting as Deputy High Court Judge). The test is an objective one, not a range of reasonable responses test (Stott, ibid, at [80]).[179]In terms of justification, the EAT in MacCulloch v ICI [2008] IRLR 846 set out four principles to be applied by the Tribunal. These have since been approved by the Court of Appeal in Lockwood v DWP [2013] IRLR 941:- ''(1) The burden of proof is on the Respondent to establish justification: see Starmer v British Airways [2005] IRLR 862 at [31]. (2) The classic test was set out in Bilka-Kaufhaus GmbH v Weber Von Hartz (case 170/84) [1984] IRLR 317 in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must “correspond to a real need … are appropriate with a view to achieving the objectives pursued and are necessary to that end” (paragraph 36). This involves the application of the proportionality principle, which is the language used in reg. 3 itself. It has subsequently been emphasised that the reference to “necessary” means “reasonably necessary”: see Rainey v Greater Glasgow Health Board (HL) [1987] IRLR 26 per Lord Keith of Kinkel at pp.30–31. 25 (3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax [2005] IRLR 726 per Pill LJ at paragraphs [19]–[34], Thomas LJ at [54]–[55] and Gage LJ at [60]. (4) It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter. There is no “range of reasonable response” test in this context: Hardys & Hansons plc v Lax [2005] IRLR 726, CA.'' - 39 -[180]The Supreme Court confirmed in Homer v Chief Constable West Yorkshire Police [2012] ICR 704 at [22] that “to be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so.”[181]Pill LJ in Hardy & Hansons Plc v Lax [2005] ICR 1565 at [32]: “It must be objectively justifiable (Barry v Midland Bank plc [1999] ICR 859) and I accept that the word “necessary” used in Bilka-Kaufaus [1987] ICR 110 is to be qualified by the word “reasonably”. That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word “reasonably” reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary.”[182]In Hensman v Ministry of Defence [2014] UKEAT/0067/14/DM, Singh J referred to the above passage and stressed at [44] that in applying this approach the Tribunal, “must have regard to the business needs of the employer.”[183]In Blackburn and anor v Chief Constable of West Midlands Police 2009 IRLR 135, Court of Appeal in the context of an equal pay claim, Lord Justice Maurice Kay said at paragraph 25: “In this as in any similar case the focus must be on the aim of the employer. It is abundantly clear from the guidance that the Secretary of State approved a structure which envisaged 'local schemes being tailored to the requirements of local circumstances'. Sections 20 and 21 Equality Act 2010 – Failure to make reasonable adjustments[184]Section 20 of the EqA states: “(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.”[185]The duty comprises three requirements: “(3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4)The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (5)The third requirement is a requirement, where a disabled person would, but - 40 - for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.”[186]Section 21 of the EqA provides that a failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments and that A discriminates against a disabled person if A fails to comply with that duty in relation to that person.[187]Further provisions in Schedule 8, Part 3, of the EqA provide that the duty is not triggered if the employer did not know or could not reasonably be expected to know that the claimant had a disability and that the provision, criteria or practice is likely to place the claimant at the substantial disadvantage referred to in the first requirement (referred to above).[188]The importance of a Tribunal going through each of the constituent parts of section 20 was emphasised by the EAT in Environment Agency v Rowan [2008] ICR 218 and reinforced in Royal Bank of Scotland v Ashton [2011] ICR 632.[189]As to whether a “provision, criterion or practice” (“PCP”) can be identified, the EHRC Code at paragraph 6.10 says the phrase is not defined by the EqA “…but should be construed widely so as to include for example any formal or informal policy, rules, practices, arrangements or qualifications including one-off decisions and actions (see also paragraph 4.5)”. The question of what will amount to a PCP was considered by the EAT in Nottingham City Transport Limited v Harvey UKEAT/0032/12 and Ishola v Transport for London [2020] EWCA 5 Civ 11.[190]For the duty to arise, the employee must be subjected to “substantial disadvantage in comparison to a person who is not disabled” and with reference to whether a disadvantage resulting from a provision, criterion or practice is substantial, section 212(1) defines “substantial” as meaning “…more than minor or trivial”. The question is whether the PCP has the effect of disadvantaging the disabled person more than trivially in comparison to those who do not have the disability (Sheikholeslami v University of Edinburgh, [2018] IRLR 1090).[191]The obligation to take such steps as it is reasonable to have to take to avoid the disadvantage is one in respect of which the EHRC Code provides considerable assistance, not least the passages beginning at paragraph 6.23 to 6.29. A list of some of the factors which might be taken into account when deciding what is a reasonable step for an employer to have to take appears at paragraph 6.28 and includes:• 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; - 41 -• 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.[192]Paragraph 6.29 of the EHRC Code makes clear that ultimately the test of the reasonableness of any step is an objective one depending on the circumstances of the case. It is for the Tribunal to assess this issue. Examples of reasonable adjustments in practice appear from paragraph 6.33 onwards.[193]The EAT in Project Management Institute v Latif [2007] IRLR 579 observed that while the nature of the adjustment that is lacking need not itself come from the claimant, it does seem that there must at least be before the Tribunal facts from which, absent any innocent explanation, it could be inferred that a particular adjustment could have been made. Otherwise, the respondent would be placed in the 'impossible position' of having to prove the negative proposition that there was no reasonable adjustment that could have been made. Further, the EAT emphasised the importance of Tribunals confining themselves to findings about proposed adjustments which are identified as being in issue in the case before them in Newcastle City Council v Spires UKEAT/0034/10, [2011] All ER (D) 60 (May).[194]HHJ Hand QC in Jennings v Barts and the London NHS Trust UKEAT/0056/12, [2013] EqLR 326, warned that Latif did not require the application of the concept of shifting burdens of proof, which 'in this context' added “unnecessary complication in what is essentially a straightforward factual analysis of the evidence provided” as to whether the adjustment contended for would have been a reasonable one. Complaints under the EqA and Remedy[195]Section 120 of the EqA provides that an Employment Tribunal has jurisdiction to determine a complaint relating to a contravention of Part 5 (work) of that Act and, subject to the time limit provisions of Section 123, as detailed above, are subject to the remedies set forth in Section 124 of the EqA, if an Employment Tribunal finds that there has been a contravention of the EqA.[196]In that event, the Tribunal may, as per Section 124(2),(a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate;(b) order the respondent to pay compensation to the claimant; and(c) make an appropriate recommendation, as defined in Section 124(3) of the EqA.[197]In terms of Section 124(6) of the EqA, the amount of compensation which may be awarded under Section 124(2)(b) of the EqA corresponds to the amount that could be awarded by the County Court under Section 119 of the EqA and, as per Section 119(4) of the EqA, an award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).[198]The Tribunal is empowered to award interest under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (SI 1996/2803), and we - 42 - also considered Section 207(a) of the Trade Union and Labour Relations Consolidations Act 1992. We took into account the ACAS Code of Practice on disciplinary and grievance procedures as a relevant Code of Practice. Submissions[199]The respondent’s representative and the claimant made oral submissions at the conclusion of the evidence which we fully considered in reaching our decision. They are referred to where relevant.[200]The respondent’s representative provided the Tribunal with both written opening representations at the start of the hearing and written closing representations following the conclusion of the evidence. The respondent’s representative provides a detailed analysis of evidence before the Tribunal relating to the matters contained in the Agreed List of Issues.[201]The claimant made a number of representations in their oral submissions including but not limited to (by way of summary only) in relation to the respondent’s alleged treatment of the claimant with regard to the claimant’s disabilities and the claimant’s children’s disabilities, including but not limited to in relation to the lack of adjustments afforded to her and not offering the claimant part time (reduced hours) or termtime working arrangements, when this matter had been raised with the respondent. The claimant explained that she decided to take a 6 month career break as at the time her children’s conditions were so severe. Thereafter she was not permitted to work reduced hours which she wanted to do in order to attend to issues relating to her son or daughter (the claimant said she was informed she had to wait one year after the dates she took special leave). The claimant said she decided to work six hours between the hours of 7.30am to 7pm and she recounted the ways in which the respondent treated her during that time, which led to her stress slowly getting worse.[202]The claimant also submitted that she was moved to another desk, she had raised issues with the lighting and experienced headaches, and when she was working from home she was not provided with 2 PC monitors. The claimant recounted details of her life through childhood up to her marriage, and that she had received no support. The claimant explained that her employment situation had led her to experience depression, migraines 2/3 times a month, she became suicidal in November 2020, and she experienced anxiety and panic attacks (referring to her medical records in respect of the same).[203]The claimant also sought to try to explain during her submissions the accesses that were the subject of the misconduct allegations (relating to the unfair dismissal claim), including on the first occasion how she dealt with Universal Credit decisions, that these would involve copy/paste tasks, and explained that on one occasion she copied/pasted national insurance numbers as she was looking to see if a customer had provided a fit note to cover the period of the claim (if she had not seen anything, she must have come out and not looked further). On the second occasion she stated that her son was going to university in August/September 2020 and her son did not claim DLA or any benefits. She advised that there was nothing on the respondent’s system relating to her son or husband apart from their names, dates of birth and addresses. The claimant added that with regard to the third and fourth accesses she had explained what had happened in her evidence, she had returned from a period of sick leave, she - 43 - explained why she would have logged into the PC while she was off sick and referred to the timings on three of the accesses (three times both occasions within 5 seconds on a different time). The claimant stated that the respondent had considered training when the whistleblowing had started, and that none of the claimant’s medical conditions were taken into account. Discussion and Decision[204]On the basis of the findings made the Tribunal disposes of the issues identified at the outset of the hearing as follows – Withdrawal of part of claimant’s direct disability discrimination complaints[205]During the hearing the claimant withdrew her complaints of: 205.1direct disability discrimination relating to the complaint set out at paragraph 2 a) (iv) of List of Issues “Between Easter 2019 – December 2020, she was blocked from work related training by Carmel Walsh.” 205.2direct disability discrimination relating to the complaint set out at paragraph 2 a) (viii) (3) of List of Issues “Being told that the office was going to close soon and so everyone would be made redundant, get promoted, be relocated or be dismissed so the managers were watching everyone closely.” 205.3direct disability discrimination relating to the complaint set out at paragraph 2 a) (x) of List of Issues “Between 2018 – 2021, SD and CW put pressure on her to take unpaid leave and refused to make changes to her hours due to her caring responsibilities.” (to the extent that this allegation relates to Steve Dadds).[206]The respondent’s representative applied to dismiss those complaints on withdrawal. The claimant did not object. The Tribunal dismissed the allegations set out at paragraphs 205.1, 205.2 and 205.3 relating to the complaints of direct disability discrimination pursuant to Rule 51 of The Employment Tribunal Procedure Rules 2024 (previously those provisions were contained at Rule 52 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013). S 6 disability – claimant Was the Claimant a disabled person as defined in Section 6 of the Equality Act 2010 at the relevant time or times?[207]We accept that on the evidence before us that the claimant suffered from anxiety and depression, that the claimant’s anxiety and depression amounted to a disability in terms of section 6 of the Equality Act 2010, and further, that the respondent had knowledge of this from the date of the Occupational Health report to which we were referred dated 13 February 2020. We accepted that the claimant’s anxiety and depression both had a substantial adverse impact on the claimant’s normal day-to-day activities, and that the effects upon the claimant were long term (she suffered from both anxiety and depression in excess of a period of 12 months). - 44 -[208]In addition, the claimant described that she had difficulties with paperwork or inability to cope with the same. On the evidence before us, we considered that this could well be related to the claimant’s conditions of anxiety and depression.[209]Although the medical evidence we had before us was not clear, we accepted, on the balance of probabilities, that any panic attacks the claimant may have had, may have been related to her anxiety or depression. To that extent, we accepted that the claimant had a disability by reason of panic attacks.[210]We did not accept that the claimant was disabled by reason of any impairments relating to ADHD, Emotionally Unstable Personality Disorder, migraine, back pain or diabetes in terms of section 6 of the Equality Act 2010. The respondent’s representative submitted that there was no medical evidence before the Tribunal to substantiate that the claimant had a disability in terms of ADHD, Emotionally Unstable Personality Disorder, migraine, back pain or diabetes. We took into account the medical evidence within the hearing bundle, the other documents before us including the Occupational Health evidence, the medical evidence to which we were referred within the Hearing Bundle and the claimant’s witness evidence. We did not have sufficient evidence before us to satisfy ourselves that any of those impairments had a substantial adverse effect on the claimant’s day to day activities or to show that the effects of the same were long term. We noted that the claimant did not provide a statement to the Tribunal detailing the effects of her impairments as directed to do so by the Tribunal. We did not find on the evidence before us that any of those impairments were related to the claimant’s anxiety or depression. Claimant’s children’s disabilities[211]The respondent conceded that the claimant’s second son is disabled by virtue of an eating disorder, although they did not have knowledge of the same at the material time. The respondent also accepted that the claimant’s daughter had a disability in terms of asthma and that they had knowledge of this from June 2018, and further, that she was disabled due to her eczema, but it was not accepted that they had knowledge of the same.[212]In relation to the remainder of the claimant’s children’s impairments, whilst we accepted that the claimant’s children had significant difficulties and challenges, and that these were of a serious nature, we concluded that we did not have sufficient evidence to show what the impact of their disabilities were on their day-to-day activities (and whether there was a substantial adverse impact on their normal day-to-day activities). We also could not determine whether any such impacts on their normal day-to-day activities were long term on the evidence before us.[213]The respondent maintains the position that it does not accept the claimant’s eldest son was disabled at the relevant times by virtue of Crohn’s disease, ADHD or possible autism. It is submitted that insufficient evidence has been supplied by the claimant to show that the requirements of s.6 of the EqA were met for these conditions. - 45 -[214]We also did not find that the claimant’s second son was disabled by reason of post-traumatic stress issues or ADHD on the basis of the documents and the evidence before the Tribunal.[215]The respondent also maintains the position that it does not accept that the claimant’s daughter was disabled at the relevant times by virtue of anxiety or behavioural issues. The respondent’s representative submits that insufficient evidence has been supplied to show that the requirements of s.6 of the EqA were met for these conditions.[216]The claimant did not provide a disability impact statement either in relation to her disabilities or her children’s disabilities as directed to do so by the Tribunal.[217]Little details were provided to the Tribunal about claimant’s disabilities and her children’s disabilities (in terms of the effects of the disabilities on their normal day-today activities and whether any effects were long term) within the claimant’s witness evidence and the documentary evidence that was before us. Direct disability Discrimination – Section 13 of the Equality Act 2010 Allegation 2.a) i.[218]We did not accept that on the basis of our findings of fact that Steve Dadds and Carmel Walsh discussed the claimant and the claimant’s children’s health issues with her other colleagues in the claimant’s absence. On the evidence before us, the claimant had openly discussed her children’s health with her colleagues. We were not provided with statements from any colleagues by the claimant or details of what they purportedly said to the claimant to support the claimant’s contention in respect of this allegation. Allegation 2a)ii.[219]We did not find that on the facts before us, that between 2018 and 2020, Steve Dadds and Carmel Walsh failed to adequately deal with her issues with heat and light on the first floor of the Stratford service, which caused her migraine/distress. We find that the steps they took to address any issues raised with heat and light were adequate in all the circumstances. In any event we did not have sufficient evidence before us to show that the issues relating to heat and light caused the claimant migraine. Allegation 2a)iii.[220]We accepted that the claimant’s second monitor was removed. This was because the HMRC work has come to an end, and it had to be returned. We did not accept that the claimant was subjected to less favourable treatment or that she was subjected to less favourable treatment because of her own disability or the claimant’s children’s disabilities (or her caring responsibilities). The claimant did not produce satisfactory prima facie evidence to show that this was because of her own disability or them). In any event, we were satisfied that the claimant’s treatment was in no sense whatsoever connected to her disability or the claimant’s children’s disabilities (or the claimant’s caring responsibilities towards them). We accepted Carmel Walsh’s witness evidence in relation to the issues relating to a second monitor. - 46 - Allegation 2a) iv)[221]This allegation was withdrawn by the claimant during the hearing. Allegation 2a) v) (1)[222]There were no details provided within the witness evidence or documentary evidence to show that other employees were shown favouritism or given second monitors without a health need for one as asserted by the claimant.[223]Accordingly, there are no specific details of this allegation in the claimant’s witness statement.[224]We repeat our findings in relation to allegation 2a) iii) above.[225]In any event, on the evidence before us, we were satisfied that the claimant’s treatment relating to this matter was in no sense whatsoever connected to her disability or the claimant’s children’s disabilities (or the claimant’s caring responsibilities towards Allegation 2a) v) (2)[226]The claimant alleges that in the summer of 2020, others were not disciplined for committing a criminal offence (sharing customer information and medical records on WhatsApp). There was a disciplinary process followed relating to the WhatsApp messages in question. We found that the circumstances of that incident were materially different from the circumstances of events which led to the claimant’s dismissal. We consider that the different circumstances between what happened with reference to the WhatsApp messages in question and the specific facts relating to the circumstances leading to the claimant’s dismissal explains the difference in treatment. We do not consider that the claimant’s circumstances which led to her dismissal due to gross misconduct are comparable.[227]We have set out a summary of the material differences in our observations above.[228]In any event, the claimant did not produce satisfactory prima facie evidence to evidence, for the reasons explained above, we were satisfied that the claimant’s treatment was in no sense whatsoever connected to her disability or the claimant’s children’s disabilities (or the claimant’s caring responsibilities towards them). Allegation 2a) v) (3)[229]We are unable to conclude that other employees were allowed to start and finish work later than the claimant. We did not have any evidence of the start and finish times - 47 - of other employees or any reasons in respect thereof. Moreover, the claimant had flexibility within the core hours of attendance.[230]In any event, the claimant did not produce satisfactory prima facie evidence to evidence, for the reasons explained above, we determined that the claimant’s treatment relating to her working hours was in no sense whatsoever connected with her disabilities or her children’s disabilities (or the claimant’s caring responsibilities towards them). Allegation 2a) vi.[231]The claimant alleges that “Between 2018 and 2021, she was prevented from changing teams by Jide Adeleke and Lorna Pettifer.”[232]We did not accept that the claimant was prevented from changing teams by Jide Adeleke and Lorna Pettifer at the relevant times identified in the Agreed List of Issues. There was insufficient evidence before the Tribunal relating to the same to so satisfy the Tribunal.[233]In any event, the claimant did not produce satisfactory prima facie evidence to evidence, for the reasons explained above, we were satisfied that the claimant’s treatment was in no sense whatsoever connected to her disability or the claimant’s children’s disabilities (or the claimant’s caring responsibilities towards them). Allegation 2a)vii.[234]Allegation 2a) vii within the list of issues relates to emails and messages between 2018 and 2021. Those emails and messages concern four matters, each of which we considered in turn. Allegation 2a)vii.(1)[235]On the evidence before us, we are satisfied that the claimant’s emails and messages concerning her requests for adjustments were addressed by the respondent. We have set out our relevant findings and observations above. The claimant was not treated less favourably than any actual or hypothetical comparator in this regard.[236]In any event, the claimant did not produce satisfactory prima facie evidence to evidence, on the basis of the findings and observations set out above, we were satisfied Allegation 2a)vii.(2) - 48 -[237]The claimant does not set out any details of any request for a team change at paragraph 2a)vii.(2). We proceed on the basis that this refers to the team change referred to at paragraph 2a)vi of the Agreed List of Issues. Accordingly, we repeat our findings above in respect of paragraph 2a)vi of the Agreed List of Issues. Allegation 2a)vii.(3)[238]As we stated earlier in this Judgment, we did not accept that any request for training made by the claimant was denied by the respondent. We were not referred to any evidence in which the claimant made a request for training and that any such request was subsequently denied.[239]We considered the evidence before us in terms of training that the claimant had attended within the documents and witness evidence.[240]In any event, the claimant did not produce satisfactory prima facie evidence to evidence, on the basis of our findings, we were satisfied that the claimant’s treatment was in no sense whatsoever connected to her disability or the claimant’s children’s disabilities (or the claimant’s caring responsibilities towards them). Allegation 2a)vii.(4)[241]We did not accept that the claimant’s requests for equipment were ignored by Steve Dadds, Carmel Walsh, Jide Adeleke, Lorna Pettifer and Sharon Gardiner. There was no evidence within the correspondences and documents that we were referred to supporting the claimant’s position that any of the claimant’s requests for equipment were ignored.[242]We considered the evidence relating to the provision of equipment requested or required by the claimant. We were satisfied that the respondent’s steps in this regard were satisfactory.[243]In any event, the claimant did not produce satisfactory prima facie evidence to that the claimant’s treatment was in no sense whatsoever connected to the claimant’s disability or the claimant’s children’s disabilities (or the claimant’s caring responsibilities towards them). Allegation 2a.(viii)[244]The claimant alleges that between 2018 and 2020 she was bullied by Steve Dadds and Carmel Walsh. The claimant’s allegations are listed in nine numbered points, each of which we considered separately. - 49 - Allegation 2a.(viii)(1) “Being told to adjust to what she had rather than expecting other colleagues to adjust to her needs”[245]We have not found that this was said to the claimant. We did not accept the claimant’s evidence relating to the same.[246]Furthermore, we noted that the claimant did not raise any grievance in respect of this matter. The claimant did not provide a satisfactory explanation for this. Allegation 2a.(viii)(2) “Being told that she could lose her job for complaining”[247]The claimant alleged that Carmel Walsh had said to her that she could lose her job for complaining. We were not satisfied based on the witness evidence and the documents before us that the claimant was told that she could lose her job for complaining. We accepted the evidence of Carmel Welsh within her witness statement in which she stated that she did not say this to the claimant. We also refer to our findings below, including but not limited to in relation to paragraphs 260-261 and 268-275 in this regard. Allegation 2a.(viii)(3)” Being told that the office was going to close soon and so everyone would be made redundant, get promoted, be relocated or be dismissed so the managers were watching everyone closely”[248]There were no details relating to this allegation referred to in the claimant’s witness statement. In any event this complaint was dismissed upon withdrawal by the claimant. Allegation 2a.(viii)(4) “Being told that her adjustments would not be actioned and that the Government would not spend money for just a few months before the office closed”[249]We do not find that the claimant was told that her adjustments would not be actioned and that the Government would not spend money just for a few months before the office closed. We were not provided with sufficient contextual information in relation to this allegation.[250]The claimant was advised that she would be relocating along with all her furniture. There was no suggestion made to the claimant that she would not receive the furniture she required. Allegation 2a.(viii)(5) “being told that she should buy sunglasses if she had issues with the lights, and her own fan if she was unhappy with the heat”[251]We do not accept that the claimant was told that she should buy sunglasses if she had issues with the lights and bring her own fan if she was unhappy with the heat. As indicated earlier in this Judgment, there is no record of the claimant requesting a fan within the documentary evidence to which we were referred. We note there was reference made by Steve Dadds to the claimant being recommended to wear sunglasses to help with the light situation in an internal meeting on 21 February 2019. In any event the claimant had confirmed that she had prescription glasses and the claimant provided her own fan (as set out in our findings above). We accepted the evidence and explanation provided at paragraph 12 of Steve Dadds’s witness statement - 50 - in this regard. The claimant said that she was willing to do so and she did in fact wear her sunglasses at work. We find that the respondent’s treatment of the claimant did not amount to less favourable treatment (it did not amount to a detriment), and in any event it had no connection whatsoever with the claimant’s disability or the claimant’s children’s disabilities (or the claimant’s caring responsibilities towards them). Allegation 2a.(viii)(6) “being told that she should not use the fan she bought as it made others too cold”[252]We were not satisfied on the evidence that the claimant was told she should not use the fan she bought as it made other employees too cold.[253]As indicated earlier in this Judgment, although the claimant refers to issues relating to being able to use her fan in certain areas of the office without impacting on her colleagues, on the claimant’s own evidence, she acknowledges that when she moved to Mr Santandrea’s team, her fan was not causing issues to any colleagues as she had been moved to another side of the office. There is no record of the claimant raising any concerns while the claimant was employed by the respondent in relation to this issue in terms of her complaint within the Agreed List of Issues.[254]We did not accept that the claimant was told not to use her fan. Carmel Walsh, whose evidence we accepted on this issue, advised in evidence that everyone had fans that they used within the office. Allegation 2a.(viii)(7)” being told that she should stop “acting up” and get on with her work”[255]We assume this related to the folder incident referred to in our findings of fact. We note that no other similar matter is referenced in the claimant’s witness evidence.[256]We set out the relevant findings of fact above. We find that the claimant’s manager was entitled to address this issue in the manner that he did.[257]In any event, the claimant did not produce satisfactory prima facie evidence to Allegation 2a.(viii)(8)” Being told that she was only “kept” for her good work but as soon as fault was found with her work she would be out of a job[258]We did not accept that the claimant was told that she was only “kept” for her good work but as soon as fault was found with her work she would be out of a job. We did not find sufficient relevant context or details relating to this allegation within the claimant’s witness evidence. - 51 -[259]We found that the evidence before the Tribunal was not sufficient to satisfy us that this allegation had taken place on the balance of probabilities, as asserted by the claimant. Allegation 2a.(viii)(9) “Being told that she did not deserve to have the job “with so much problems in my life”[260]Carmel Walsh (against whom this allegation was made) did not accept that she had said this to the claimant. Carmel Walsh provided an explanation in her evidence. The claimant mentioned to Carmel Walsh how much time off she had had. The claimant suggested that Carmel Walsh found it hilarious that she maintained her role in light of this. We did not accept the claimant’s account of events relating to this allegation. In terms of our findings of fact, we found that after the claimant had been telling her about all the leave that she had had and how many days off sick she had taken, Carmel Walsh had said to the claimant that she had done well to keep her job. Furthermore, this comment was not made during a period of time when Carmel Walsh was line managing the claimant. This conversation took place long before Carmel Walsh became the claimant’s line manager. The respondent’s representative observes that this was not an inappropriate response to the claimant’s comments in the context of the conversation that took place.[261]In any event, the claimant did not produce satisfactory prima facie evidence to them). The claimant had herself raised the fact that she had had time off with Carmel Walsh. Allegation 2a. (ix) “On 11 January 2019, she was shouted at by SD for using a folder to cover the light above her head and SD made the following comment – “Enough with your nonsense and stop behaving like a stupid and get on with your work because I am not taking this”- which made her cry in front of her colleagues”[262]We referred to our factual findings in respect of the folder incident in our findings of fact earlier in this Judgment.[263]We find that the claimant’s manager was entitled to address this issue in the manner that he did.[264]In any event, the claimant did not produce satisfactory prima facie evidence to - 52 - Allegation 2a.(x) “Between 2018 – 2021, SD and CW put pressure on her to take unpaid leave and refused to make changes to her hours due to her caring responsibilities”[265]This allegation was dismissed upon withdrawal by the claimant insofar as it related to Steve Dadds. Therefore, the claimant pursued this allegation in relation to Carmel Walsh’s alleged conduct only.[266]We did not accept on the findings of fact we made that Carmel Walsh put pressure on the claimant to take unpaid leave. It is not clear how and when this purportedly occurred. The claimant has not furnished the Tribunal with sufficient relevant contextual details.[267]In any event we accepted Carmel Walsh’s evidence that she did not place pressure on the claimant to take unpaid leave and she did not refuse to make changes to the claimant’s hours due to the claimant’s caring responsibilities. The claimant’s hours were flexible. When the claimant asked to increase her hours, she was asked to make a request in line with the respondent’s protocols. We were not referred to any request made by the claimant pursuant to the respondent’s protocols or any decision refusing any such request. Allegation 2a.(xi) “Between 2018 – 2021, senior managers ignored her fears that she would be dismissed because of her “caring responsibilities”[268]It is not clear which senior managers the claimant is referring to or what the claimant had allegedly reported to them from reviewing the claimant’s witness statement and the documents to which we were referred. We have reviewed carefully the claimant’s references to senior managers and the claimant’s allegations about their conduct in respect of her caring responsibilities between 2018 and 2021 within the claimant’s witness statement.[269]The claimant’s witness statement states that up until 2018 she was working at different times as managers were very understanding of her caring needs as a single mother.[270]The claimant describes that between November 2017 and April 2018 she was on unpaid carer’s leave; she has been forced to take unpaid leave and told to stay at home since she had caring responsibilities. She also says she was mocked about her difficulties and challenges and closely monitored whilst she were in the office (we did not accept the claimant evidence in relation to these matters).[271]At paragraph 38 of the claimant’s witness statement the claimant describes the reasons why she says she was dismissed and she includes that she “…was dismissed because the managers did not want single mothers with caring responsivities.”[272]The claimant also states the following in relation to Carmel Walsh “There was a time when she told me that she was shocked that I still exist in the department because as a single mother with caring responsibilities I should have been sacked ages ago.” - 53 - The claimant does not provide the date of that comment or any other details or context relating to the same, other than the fact she says she was very upset and made a complaint. We did not accept that that comment was made to the claimant by Carmel Walsh.[273]We were not satisfied on the evidence that the claimant had expressed her fears that she would be dismissed because of her “caring responsibilities” to senior managers.[274]In any event, we did not accept on the evidence before us that any senior managers had ignored any fears expressed by the claimant that she would be dismissed because of her “caring responsibilities”.[275]We found that the claimant’s treatment in this regard had no connection whatsoever with the claimant’s caring responsibilities. Furthermore, we noted that the respondent had provided adjustments to the claimant, including short notice leave in respect of her caring responsibilities, as indicated in our findings of fact above. Allegation 2a.(xii) Her dismissal[276]The claimant alleges that her dismissal on 28 April 2021 amounted to less favourable treatment and that such treatment was on the grounds of her disability and/or her children’s disabilities.[277]We concluded that the claimant’s dismissal had no connection whatsoever with either the claimant’s disabilities or the claimant’s children’s disabilities (or the claimant’s caring responsibilities towards them). We were satisfied on the evidence before us that the reason for the claimant’s dismissal was as set out by Lorna Pettifer and Shaun Curnow, the appeal officer. 2b. Less favourable treatment[278]The claimant alleges that she was treated less favourably than other colleagues in her team at the same grade. The only specific individual referred to by the claimant is an employee known as AF. We do not have details relating to any protected characteristics of AF other than the fact that they had a learning disability. Moreover, having considered the facts relating to AF’s WhatsApp messages and the factual circumstances relating to the claimant’s dismissal, we find that their respective circumstances (in comparison with the claimant’s circumstances relating to her dismissal) were materially different. We have set out details of a summary of the different circumstances in our observations above. The facts that led to the claimant’s dismissal were so serious that the respondent found that they amounted to gross misconduct.[279]Other than AF, the claimant has not named any specific colleagues or provided examples in her witness statement about any colleagues (who the claimant says was treated more favourably than the claimant). - 54 -[280]We did not accept having considered all the circumstances including the witness evidence and the documentary evidence to which we were referred that the claimant was treated less favourably than any other colleagues in the claimant’s team at the same grade in relation to any of the claimant’s allegations of direct disability discrimination, or alternatively that the claimant was treated less favourably than a hypothetical comparator. 2c. Was the difference in treatment because of the protected characteristic?[281]We did not find that in relation to any of the claimant’s complaints of direct disability discrimination, that there were primary facts from which the Tribunal could conclude that the alleged treatment was because of the protected characteristic of disability (in terms that her treatment was not because of the claimant’s disability or the claimant’s children’s disabilities or any caring responsibilities towards them). 2d. The respondent’s explanation[282]Where appropriate, we have identified non-discriminatory reasons for the respondent’s acts and/or omissions above.[283]Therefore, if we were wrong to so find, and the claimant had shown a prima facie case, we would have concluded that the respondent had shown that there were nondiscriminatory reasons which adequately explained the way the claimant was treated in respect of each alleged act of less favourable treatment in terms of our findings above.[284]Accordingly the alleged treatment by the respondent had no connection whatsoever with the claimant’s disability or any of the claimant’s children’s disabilities or any caring responsibilities towards them. Conclusion – direct disability discrimination[285]Accordingly, the claimant’s complaints of direct disability discrimination are dismissed. Discrimination arising from disability – s 15 Equality Act 2010 Issue 3a) (i) Limited concentration[286]We do not accept the claimant’s assertion in relation to limited concentration and further we do not accept that this was something arising from any asserted disabilities. There was insufficient evidence before the Tribunal to satisfy the Tribunal relating to the claimant’s disabilities and any connection with “limited concentration”. We noted that the claimant was performing her work whilst she attended work. There was no or insufficient evidence provided in respect of any impact this had on her day to fay activities or at work (or work duties). There was a suggestion in the evidence that the claimant was getting through cases quickly. Issue 3a) (ii) Problems with her eyes and (iii) headaches - 55 -[287]There was insufficient evidence before the Tribunal to show that any problem with the claimant’s eyes or headaches was something arising from the asserted disabilities. Issue 3a) (iv) Depression[288]One of the impairments the claimant relies on is depression (we accepted that the claimant’s depression amounted to a disability). It is difficult to understand how the claimant puts her case in relation to this matter. It is not clear how an impairment may arise out of another impairment. Issue 3a) (v) Taking sick/unpaid leave[289]We accepted that the claimant took some sick leave for anxiety and depression. She also took unpaid leave relation to her children (albeit we note that on reading the terms of section 15 of the Equality Act 2010, a section 15 claim may only relate to something arising in consequence of the claimant’s disability and neither party made any argument or submission to the contrary). We accept that to the extent that the claimant took any leave due to her depression or anxiety, that her requirement to take leave on the occasions in question could amount to something arising from her disabilities (namely anxiety and depression). Issue 3a) (vi) Needing flexibility to accommodate her disabled children’s needs[290]As stated above we find that a section 15 claim can only relate to something arising in consequence of the claimant’s disability. However, we considered this matter in the context that the claimant needed flexibility to accommodate her disabled children’s needs, and the impact this may have on the claimant’s depression or anxiety if any such leave were not granted.[291]If the claimant’s children were disabled, she would need flexibility. The claimant was given flexible hours. The claimant was not refused time off for attendance at hospital. It is not clear what the claimant meant by “flexibility” in this context. Issue 3b) i) “On 11 January 2019, Steve Dadds told her to stop complaining and do the work”[292]We did not find that on 11 January 2019 Steve Dadds told the claimant to stop complaining and do the work. We have set out our findings above in relation to the events that took place on 11 January 2019. We do not accept that the claimant was subjected to unfavourable treatment. Issue 3b) ii) “On 11 January 2019, Steve Dadds and Carmel Walsh laughed after that comment was made”[293]We refer to our finding above. It is not clear why this allegation was pursued against Carmel Walsh within the Agreed List of Issues. In cross examination the claimant had confirmed that this allegation was only being pursued against Steve Dadds. Steve Dadds denied the allegation. We did not accept on the evidence before - 56 - us that the alleged comment was made nor that Steve Dadds (or Carmel Walsh) had laughed after any such alleged comment was made. Issue 3b) iii) “In the summer of 2019, Carmel Walsh told her she was shocked the Claimant was still in the office with so many issues with her children and herself”[294]We do not accept that in the summer of 2019 Carmel Walsh told the claimant that she was shocked the claimant was still in the office with so many issues with her children and herself. We refer to our findings in respect of allegation 2a)viii ix). We refer to our factual findings and observations. We preferred the evidence given by Carmel Walsh in relation to this matter which was consistent and reliable (please see our findings above). We also refer to paragraphs 48-51 of the respondent’s written closing representations and the analysis relating to this allegation. We do not accept that the claimant was subjected to unfavourable treatment. Issue 3b) iv) “Between 2018 – 2020, Steve Dadds and Carmel Walsh made her work in an environment that caused her physical issues”[295]We did not accept that between 2018 and 2020 Steve Dadds and Carmel Walsh made the claimant work in an environment that caused her physical issues. We did not accept the claimant’s contentions in relation to this matter. Further we did not have any or any sufficient details in the witness evidence and documents before us to show that this had transpired. We note that the claimant was provided with an chair, a leg-raiser, appropriate lighting, and for a significant time while she was managed by Carmel Walsh the claimant had been working from home. Issue 3b) v) “Her line managers and senior managers told her she could not work part time or term time only”[296]The claimant had the ability to undertake flexible working within her role. On the evidence before us, the claimant did not make an application for part time or term time working arrangements. The claimant had part time working arrangements at the time (in cross examination she accepted that she worked part time, 30 hours) and as stated at paragraph 53 of the respondent’s representative’s closing written representations, the only request that was made was to increase rather than to decrease her hours. We did not find on the evidence that the claimant’s line managers and senior managers told her that she could not work part time or term time only, and accordingly no such requests were made. We do not accept that the claimant was subjected to unfavourable treatment. Issue 3b) vi) “Steve Dadds and Carmel Walsh made her take unpaid leave from 13 November 2017 – 22 April 2018 due to the disabilities of her children”[297]We did not find on the evidence that Steve Dadds and Carmel Walsh made the claimant take unpaid leave during the period identified in the Agreed List of Issues. The claimant volunteered to take unpaid leave at the material time. We find that this was entirely the claimant’s decision. We do not accept that the claimant was subjected to unfavourable treatment. - 57 - Issue 3b) vii) “Steve Dadds and Carmel Walsh told her she would lose her job if she didn’t take unpaid leave”[298]We do not accept that Steve Dadds and Carmel Walsh told the claimant that she would lose her job if she did not take unpaid leave. We refer to our findings in respect of paragraph 3b)vi) as set out in the Agreed List of Issues above. We noted that both Steve Dadds and Carmel Walsh denied they had said this to the claimant, and we preferred their evidence in this regard. Issue 3b) viii) “Steve Dadds and Carmel Walsh put pressure on her about the amount of sick leave she had taken”[299]We did not accept that Steve Dadds and Carmel Walsh put or placed undue pressure on the claimant about the amount of sick leave she had undertaken. We refer to our findings of fact earlier in this Judgment. We considered the witness evidence before us, the documents to which we were referred, and all the circumstances. We are satisfied that the claimant’s sickness absence was dealt with through the respondent’s proper (and normal attendance management) processes. We are further satisfied that the approach taken by both managers was supportive in the circumstances. The claimant was not subjected to any unfavourable treatment in respect thereof.[300]In any event and in the alterative, if we accepted that the same was unfavourable treatment and that it took place because of something arising in consequence of the claimant’s disability, we consider that any attempts to manage the claimant’s sick leave and sickness absence was justified in all the circumstances. In order to ensure sufficient staffing and continuity of service the respondent was required to implement proper absent management processes. We are satisfied that the effective management of the respondent’s workforce is a legitimate aim and the respondent’s conduct on the evidence before us was a proportionate means of achieving that aim. We do not find that any steps taken by the respondent were disproportionate or that any less discriminatory steps could have been taken in the circumstances. Having weighed both parties’ positions, any steps taken by the respondent in this regard were plainly proportionate in all the circumstances. Issue 3b) ix) Her dismissal[301]We accepted that on the face of it, the claimant’s dismissal amounted to unfavourable treatment. However, we did not accept that the claimant’s dismissal took place because of something arising in consequence of the claimant’s disabilities. On the evidence before us, we are satisfied that the claimant’s dismissal was solely related to the four allegations of unauthorised access to data which were subsequently proven. We are unable to find that those matters were something arising from the claimant’s disabilities on the evidence before us. The allegations were fully investigated by the respondent, and a disciplinary process took place. All mitigation was considered and the mitigation put forward by the claimant was deemed not to be sufficient. Accordingly, we are not satisfied that there was any causal link between the claimant’s dismissal and her disabilities including depression/anxiety, panic attacks or limited concentration (or indeed, because of any of the claimant’s children’s disabilities, although we note that a s15 EqA complaint is limited to a complaint in relation to the claimant’s disabilities). - 58 -[302]The respondent’s representative points out that when the claimant was asked how she managed to navigate the 18-step process involved (see §149 on page 615 of the Hearing Bundle) unintentionally, her answer was evasive. The respondent’s representative also describe the circumstances in which another employee was not dismissed for what the claimant alleged was a similar act at paragraph 19.2 of their written closing representations.[303]The claimant was afforded a right of appeal, and her grounds of appeal were not subsequently upheld.[304]Therefore, the Tribunal accepted that the respondent dismissed the claimant for the reason of conduct. The claimant’s dismissal was unfavourable treatment for the purposes of Section 15 of the EqA. However, we were not satisfied on the evidence we read and heard that the issues the claimant described that she experienced, arose in consequence of the claimant’s disabilities.[305]We decided (for the reasons noted above), that the claimant was not dismissed because of something arising in consequence of her disability, however, the claimant was dismissed due to her conduct in relation to the four instances of unauthorised access. Accordingly, her claim for discrimination arising in consequence of disability does not succeed and is dismissed.[306]In the event we were wrong to so conclude, we considered the issue relating to justification. In relation to justification, the Tribunal unanimously preferred the submissions of the respondent’s representative to those of the claimant.[307]The respondent’s representative referred to the respondent’s need to effectively manage their workforce as the legitimate aim. The respondent employed its policies and procedures in order to safeguard their data from unauthorised access. They further submitted that the respondent’s conduct was proportionate in achieving that aim.[308]The respondent’s representative also points out that the respondent’s witnesses have made reference to the needs of others, and that this would require a balancing exercise between the claimant’s needs and the needs of others. In terms of the claimant’s dismissal for unauthorised access to data on four occasions, the respondent was taking action in relation to unauthorised access to customer data. This was important to send a clear message that the respondent takes their obligations towards the protection of customer data seriously. It is a legitimate aim that is important to ensure public trust and confidence in the respondent’s data management processes.[309]The Tribunal were further satisfied that where employees were unable to meet the respondent’s expectations relating to conduct in circumstances in which the respondent could not be satisfied that the same or similar conduct would not take place again, their dismissal could and in the case of the claimant’s dismissal did constitute the proportionate means of achieving that legitimate aim. In reaching that conclusion, the Tribunal sought to balance the reasonable needs of the employer on the one hand against the purported discriminatory effect of applying their disciplinary policy and their - 59 - processes which were centred around protecting customers and members of the public (and the consequential dismissal of the claimant).[310]The Tribunal was not satisfied that there was available to the respondent a less discriminatory means of achieving their legitimate aim, the same being to have not dismissed the claimant and to support her in the meantime (with no assurance that the same or similar conduct would not be repeated). As the appeal manager, Mr Curnow had found, the claimant was not new the department and would have had security training for over 10 years (the claimant confirmed in cross examination that she attended SOP training for 14 years and had missed it for 2 years). There was a warning notice on the computer which came up every time a user logged onto their PC which reminded the user not to look at records that they should not look at. He also found that the claimant had refused to accept responsibility.[311]The Tribunal accepted the respondent’s position that in that regard that such a course of action would not result in the achievement of the legitimate aim but would rather in the circumstances undermine it. While the Tribunal accepted that the respondent is a relatively large governmental body with a substantial budget, we also accepted the evidence of the respondent’s key decision maker that they considered the range of reasonable outcomes but that the alternatives to the claimant’s dismissal were not appropriate, and the corelative position of the claimant. While the claimant was one individual, she was also one of a number of decision makers working within the respondent whose conduct could be seen to adversely impact upon the achievement of the legitimate aim. That was a proposition which the Tribunal unanimously accepted.[312]We accepted that there was no lesser sanction or less discriminatory option available to the respondent in the circumstances. The Tribunal held that the respondent had shown that the application of their protocols and their disciplinary policy to the claimant and the ultimate consequential dismissal of the claimant was a proportionate means of achieving a legitimate aim.[313]The claimant did not provide any evidence that a medical condition had affected her judgment over the relevant 11-month period to Lorna Pettifer. She considered the claimant’s explanation for her conduct in a disciplinary meeting, on 22 April 2021, consulted with HR on the level of penalty and was advised that dismissal was appropriate. Mr Curnow had considered whether there was any sufficient mitigation at the appeal stage. He also confirmed that the claimant had not provided him with medical evidence by way of mitigation. He felt that there was no sufficient evidence or mitigation to change Lorna Pettifer’s decision to dismiss the claimant. We are not satisfied that any sanction short of dismissal was appropriate in all the circumstances.[314]Having weighed both parties’ positions, we are satisfied that the respondent’s decision to dismiss the claimant was proportionate in all the circumstances.[315]Therefore, we would have proceeded to have dismissed the claimant’s complaint under s 15 of the EqA (relating to the claimant’s dismissal) in the circumstances in any event on the basis that we are satisfied on the evidence before us that the claimant’s dismissal was a proportionate means of achieving a legitimate aim. Respondent’s Knowledge - 60 -[316]We also refer to our findings above in respect of whether the claimant had a disability and the respondent’s state of knowledge. Conclusion – discrimination arising from disability[317]The claimant’s complaints of discrimination arising from disability are not well founded and they are hereby dismissed. 4. Reasonable adjustments 4 a) i. Did the respondent have a provision, criterion or practice which placed the claimant at a substantial disadvantage? What was that substantial disadvantage?[318]We refer to our findings above in relation to whether the claimant had disabilities and the respondent’s knowledge of the claimant’s disabilities.[319]We then considered whether the respondent applied a provision, criterion, or practice (“PCP”). Working environment not suitable, including the location of her desk[320]We do not find that the claimant’s working environment was not suitable or that the location of the claimant’s desk was not suitable. We note that in terms of our findings of fact there was no request made by the claimant to move her desk to another location. If we are wrong to so find, we would have considered that this matter amounted to both a PCP and a physical feature, but we would have proceeded to determine whether or not it placed the claimant at a substantial disadvantage in respect of the claimant’s disabilities. We did not accept that this matter placed the claimant at a substantial disadvantage as alleged by the claimant. There was insufficient evidence before the Tribunal evidencing this matter. The lack of a second monitor[321]Only Team Leaders were assigned two monitors. The claimant had been provided with a second monitor whilst working with HMRC work. Alternative arrangements were provided to the claimant thereafter. The claimant was provided with suitable equipment in this regard during the COVID-19 pandemic at the relevant time. In the circumstances we did not accept that this amounted to a PCP or a physical feature or that there was a lack of an auxiliary aid.[322]In any event we did not accept that the claimant was placed at a substantial disadvantage in light of the claimant’s disabilities as alleged by the claimant. There was insufficient evidence before the Tribunal evidencing this matter.[323]The claimant did not raise a grievance in relation to this matter (she had previously expressed concerns about lighting by email correspondence at page 206 of - 61 - the Hearing Bundle but this did not refer to any other matters the claimant sought by way of adjustments). Adjustments recommended by Occupational Health (regarding lighting, placing desk in a cooler area, provision of a fan, special chair and footstool) not made[324]We reviewed the recommendations made by the respondent’s Occupational Health physician. Although we accepted that the matters contained in the report could amount to physical features, auxiliary aids and/or a PCP, we did not accept that on the evidence before us the claimant was placed at a substantial disadvantage in light of her disabilities in respect thereof. Safety and security training not available[325]We were not satisfied that safety and security training was not available. We refer to our findings in terms of the claimant’s disciplinary process and the claimant’s confirmation during her evidence given to the Tribunal that she had received security training.[326]If we are wrong to so find, we would have considered that this amounted to a PCP and/or a physical feature and/or an auxiliary aid, but we would have proceeded to determine that there was insufficient evidence before the Tribunal evidencing that the claimant was placed at a substantial disadvantage in light of her disabilities. The respondent’s representative submits, “It is difficult to see what disadvantage could have been caused to her when she had had a particular training 14 times.” Being told to provide her own glasses and fan to manage the heat and light[327]We did not accept that the claimant was told to provide her own glasses and fan to manage the heat and light.[328]If we are wrong to so find, we would have considered that the alleged conduct of the respondent amounted to a PCP and a physical feature, but thereafter, we would have proceeded to determine whether or not it placed the claimant at a substantial disadvantage in respect of the claimant’s disabilities. There was insufficient evidence before the Tribunal evidencing this matter. 4.a) Substantial disadvantage[329]We do not accept that the claimant was placed at a substantial disadvantage in respect of any of those matters on the evidence before us based on the matters set out at paragraph 4a of the Agreed List of Issues namely the deterioration of her physical and mental health and the lack of a second monitor made work more complicated. We considered the witness evidence and the documents to which we were referred prior to reaching our decision. 4. b) Did the respondent know that the claimant would be likely to be placed at that[330]In light of our conclusion in relation to any substantial disadvantage that the claimant relied upon which we have set out above, and the evidence before the - 62 - Tribunal, we do not find that the respondent had knowledge that the claimant was likely to be placed at the substantial disadvantage relied on by the claimant. We read carefully the witness evidence, our notes of the oral evidence and the documentary evidence to which we were referred including but not limited to any medical evidence and Occupational Health report we were taken to in reaching our conclusion. We were not satisfied on the evidence that the respondent had actual or constructive knowledge in relation to any substantial disadvantage that the claimant avers. 4. c) Did the respondent take such steps as were reasonable to avoid the disadvantage?[331]In the alternative, and in the event that we are wrong to so find, we set out our conclusions below in respect of paragraph 4.c) of the Agreed List of Issues. The lighting to be dimmed[332]We did not find that the respondent failed to take such steps as were reasonable to avoid the disadvantage in relation to dimming the lighting.[333]Firstly we refer to our observations relating to Steve Dadds’s evidence. The claimant asked Steve Dadds to remove bulbs from some of the lights and he explained that he could not do that. He stated that there were other members of staff with sight problems and reduction in light levels would have affected them.[334]We refer to our findings above more generally. In terms of the DSE Assessment, the following handwritten notes were made on 29 January 2020 by Carmel Walsh stating, “Lights have been addressed.” Carmel Walsh stated in cross examination that it was important to balance the need to comply with health and safety law with the claimant’s desire for a particular low level of light. She advised that she was aware of health and safety law and lux levels, and that they could not dim lights in an open plan office in circumstances in which it would become too dark for an employee to walk.[335]On 13 February 2020 the Occupational Health physician reported in the following terms: “Lux levels have been checked and they are within Health and Safety recommendation. I note mamnagement have tried several configurations of lighting around her desk, but she asked for total darkness, which cannot be provided as to taking into account the needs of other staff. There were no individual rooms to move her to so .” … “What light level would be right for Nurjahan`s issue in lux terms? I understand lighting levels have been correctly reviewed and she advises that the levels are now manageable and comfortable to her.”[336]Attempts were made to accommodate the claimant and Mr Dadds found a screen for the claimant to place in front of her monitor to reduce the brightness. - 63 -[337]It would not have been reasonable for the respondent to take further action in respect of dimming the lighting on the evidence before us.[338]We did not find that the respondent failed to take such steps as were reasonable to avoid the disadvantage in relation to dimming the lighting in all the circumstances. Placing her desk to a cooler area or providing a fan[339]On the basis of the findings of fact set out above, the claimant did not request her desk to be placed into a cooler area, and she did not complain about the heat.[340]Moreover, the claimant had brought her own fan into work on the basis of her own witness evidence. Mr Santandrea advised in his evidence that he had the impression that the claimant brought her own fan into work. Accordingly, we do not find that the claimant requested or required a fan to be provided to her.[341]In any event the claimant was relocated as explained by Mr Santandrea, and she could use her fan freely in the area where she worked.[342]We noted that the claimant worked from home after the COVID-19 restrictions were put in place from March 2020. These matters would not have remained extant during that time in any event.[343]We did not find that the respondent failed to take such steps as were reasonable to avoid the disadvantage in relation to placing the claimant’s desk to a cooler area or providing a fan. A special chair and foot stool to be ordered[344]We noted that a special chair and footstall were ordered and delivered. We refer to the same in our findings of fact earlier in this Judgment.[345]The claimant had a chair and leg raiser provided to her by the respondent.[346]We did not find that the respondent failed to take such steps as were reasonable to avoid the disadvantage in relation to ordering a special chair and foot stool to be delivered. Two monitors to work with[347]The claimant did have a second monitor during work with HMRC. There was a request from a number of staff made after the HMRC work had finished for two monitors to be provided. This would have taken some time to provide. As a temporary solution, Carmel Walsh showed the claimant how to split the screen so that she could see two systems on the screen at the same time. The claimant worked from home from June 2020 (the COVID-19 restrictions were in place from March 2020 when the claimant and other employees were sent home), and the claimant had a monitor and a surface pro available whilst working from home. The claimant did not return to working from the office thereafter. - 64 -[348]It cannot be said on the evidence before us that there was any failure on the respondent’s part to make reasonable adjustments in those circumstances.[349]We did not find that the respondent failed to take such steps as were reasonable to avoid the disadvantage in relation to providing the claimant two monitors to work with. Safety and Security training[350]Even though this is not an adjustment listed at paragraph 4c) of the Agreed List of Issues, we have considered this as the claimant refers to it at section 4a) of the Agreed List of Issues.[351]The respondent’s representative submits, “In relation to the alleged PCP of safety and security training not being available, C was not able to articulate, in XX, what adjustment could have been made to have alleviated this potential disadvantage (although it is denied that such is capable of being a PCP and/or that any disadvantage was caused). When questioned, she said it was the “SOP” training she was referring to but then went on to confirm that she had had that training for 14 years and had missed it for 2 years. It is difficult to see what disadvantage could have been caused to her when she had had a particular training 14 times.”[352]We determined that the claimant undertook relevant safety and security training in 2018 and 2019.[353]Relevant training the claimant had attended or undertook in relation to this matter was referred to during the disciplinary process. Mr Curnow’s evidence was that he had taken account of the fact that the claimant was not new to the department and would have had security training for over 10 years, and he also referred to the notice that came up on the computer every time a user logged on reminding the user not to look at records they should not look at.[354]There was no record within the evidence that the claimant had made a request for any further or additional safety and security training.[355]We were satisfied on the evidence that Carmel Walsh did not block the claimant’s access to training as alleged by the claimant in the Agreed List of Issues (the claimant indicated during cross examination that that allegation was not pursued).[356]It is not clear what further reasonable adjustments the claimant contends the respondent could have made relating to safety and security training in the circumstances.[357]We did not find that the respondent failed to take such steps as were reasonable to avoid the disadvantage in relation to the provision of safety and security training. Conclusion – reasonable adjustments[358]The claimant’s complaints that the respondent failed in terms of its duty to make reasonable adjustments is dismissed. - 65 - Conclusion 163 We dismissed the claimant’s complaints for the reasons set out above. Approved By: