Dr N Murphy v UK Health Security Agency: 3201322/2024 Dr N Murphy v UK Health Security Agency: 3201322/2024

EMPLOYMENT TRIBUNALS

Case No 3201322/2024

Between

Dr N MurphyClaimant

UK Health Security AgencyRespondent

Before

Employment Judge Gardiner

Ms Sarah Harty (instructed by counsel) for claimant

Ms Sarah Hornblower (instructed by counsel) for respondent

Date 27 February 2026

JUDGMENT

The judgment of the Tribunal is that:- None of the Claimant’s claims are well founded. They are accordingly dismissed.

REASONS

[1]Until her resignation on 22 March 2024, the Claimant had been employed by the Respondent as a Clinical Scientist. She claims that her resignation amounted to a constructive unfair dismissal. She also claims she has suffered various acts of disability discrimination between September 2023 and March 2024. These are advanced as discrimination arising from disability, a failure to make reasonable adjustments and indirect disability discrimination. The Respondent accepts that the Claimant was disabled by reason of anxiety and panic attacks, but disputes that there has been any disability discrimination and disputes constructive unfair dismissal.

[2]At this hearing, the Claimant has been represented by Ms Sarah Harty of Counsel. The Respondent has been represented by Ms Sarah Hornblower of Counsel. Witness evidence was provided by the Claimant, by her line manager, Ms Norah Easy, and by Mr Jonathan Turner, who was responsible for deciding whether there was merit in the Claimant’s grievance.

[3]Documentary evidence was contained in a bundle of documents which was 1357 pages long. References in these Reasons in square brackets are to the corresponding page number in that bundle. There was an agreed Chronology and a Cast List. Ms Hornblower provided a 21-page long Skeleton Argument at the start of the hearing setting out the Respondent’s position on each of the allegations. Both counsel made oral closing submissions.

[4]The issues to be decided were recorded in an agreed list of issues contained at page 196 of the bundle. During the course of the Final Hearing, there was a dispute as to the scope of the respects in which the Claimant was arguing she had been constructively dismissed. These were:a. Whether the issue at paragraph 3.2.2, namely “refuse to allow the Claimant to take holiday during her sickness absence” extended to a failure to pay the Claimant during periods booked as annual leave and, if so, whether to the full extent of the annual leave booked.

b. Whether the issue at paragraph 3.2.4, namely “fail to resolve the grievance raised in October 2023 within a reasonable period” was broad enough to encompass the Claimant’s criticisms of the outcome of the grievance as well as the time that it took to issue an outcome letter.

[5]A decision on these points was deferred to the conclusion of the evidence and submissions. I permitted questions to be asked of witnesses on these issues without prejudice to whether the Claimant’s contentions were within the scope of the issues to be decided. During closing submissions, I heard argument from both counsel on the proper scope of the case. There was no application to amend.

[6]In resolving these disputes as to the scope of the issues, I have applied the principles set out in the case of Moustache v Chelsea and Westminster Hospital NHS Trust

[2025] EWCA Civ 185

, specifically those explained at paragraphs 32-47.

[7]On the scope of issue 3.2.2, I allow the Claimant to argue that the failure to pay the Claimant for periods booked as holiday leave was part of the refusal to allow the Claimant to take holiday during periods booked as annual leave. My reasons are as follows:a. When the Claimant issued her Claim Form, she was a litigant in person. The wording used on the Claim Form detailing the complaints she was bringing need to be read in that context. They were not drafted with the precision to be expected from a legal representative.

b. In box 8.2 on the Claim Form she included three paragraphs. The third paragraph was titled: “unfair constructive dismissal”. From the wording of that paragraph, it is clear that the Claimant was complaining about the failure to pay her for her annual leave. Specifically, her pleaded case includes the following wording: “I requested annual leave to from 19/10/23 to enable me to financially manage the grievance process. I understood I was on annual leave … I was told I couldn’t use my annual leave. The grievance process lasted 5 months and had no salary and couldn’t access any other funds” [my emphasis].

c. This wording is broad enough to encompass a complaint that she was not paid for the annual leave previously granted, given that she was alleging this was the purpose for which she had booked her annual leave.

d. Although the Claimant was represented by counsel at the Preliminary Hearing conducted by Employment Judge Iman which formulated the issue in the wording which became part of the List of Issues, the Claimant was not present. I do not accept that her ability to complain about pay for periods of sickness absence was expressly abandoned at that hearing. Rather the drafting of the List of Issues did not accurately capture the complaint that was already made on the Claim Form.

e. For whatever reason, the inaccurate formulation of this issue was not picked up subsequently by either party or by the Tribunal. However, the pleaded complaint about a failure to pay her during this period was never abandoned.

f. Whilst there is reference in the relevant wording on the Claim Form to 19 October 2023, this date has no particular evidential significance in relation to requests for annual leave. Its significance is that this was the date the Claimant lodged her grievance (a process the Claimant pleaded she need to “financially manage”). This explains why the Respondent’s understanding of the temporal scope of issue 3.2.2 was not limited to requests for annual leave after 19 October 2023. Instead, even on their own understanding of this issue, the Respondent understood this annual leave issue to span periods of annual leave booked to be taken from July 2023 to 1 January 2024.

g. It is inherent in a request to book or to keep previously booked annual leave during a period of long-term that the employee expects to be paid for that annual leave. Therefore, even if pay had not been specifically raised in the ET1 wording, I would have regarded it as open to the Claimant as part of issue 3.2.2 to complain about the lack of pay for these periods of annual leave.

h. I do not accept that the Claimant’s proposed clarification of the wording of this issue causes any prejudice the Respondent. It is true that the Respondent has chosen not to call any witness from HR or from Payroll specifically on the issue of pay for periods of annual leave. It is also true that no payslips were included in the bundle showing the pay position between July 2023 and January 2024. However, it was common ground between the parties that the Claimant was never paid for the relevant periods of annual leave until after she had resigned. In addition, the table exhibited to Ms Easy’s witness statement apparently sets out a comprehensive record of each period of annual leave and when it was paid. It was headed “Summary of Niamh’s annual leave entitlement, requests, approvals and payments”. It cross referred to relevant documents in the bundles.

[8]On the scope of issue 3.2.4, the Claimant sought to broaden this issue to make three particular criticisms about the substance of the response to the grievance. These were(1) that she was not offered a permanent role, only discussions about a temporary role

(2) the business had not accepted the recommendations made by Mr Turner in the grievance outcome and

(3) that there were no timescales for implementing the recommendations. Expanding this issue in this way was resisted by the Respondent. I do not allow this issue to be enlarged in the way that the Claimant proposes for the following reasons:

a. There is a significant difference between a complaint about the timescale for finalising the grievance outcome and a complaint about the content of a grievance outcome. They are essentially two issues. If they are to form part of the Claimant’s case, they should have been separately itemised in the List of Issues. The fact that there was only one issue in the List of Issues about the grievance outcome strongly indicates that it was only the timescale which was the complaint.

b. Any complaint about the outcome of a grievance needs to be further particularised. This is required to enable the Respondent to know the case it has to meet and to enable the Tribunal to know on what it has to adjudicate. It was only during closing submissions that Ms Harty itemised, for the first time, the respects in which she contends that the Claimant was dissatisfied with the outcome of the grievance. As a result, the Respondent has not had the opportunity to address these specific criticisms in evidence. Were such criticisms to form part of the Claimant’s constructive dismissal case, the Respondent would evidently be prejudiced.

c. More fundamentally, there is nothing in the wording used on the ET1 Claim Form that indicates any complaint about the substance of the grievance outcome. Even permitting a degree of latitude to a litigant in person as to how issues can be expressed on a Claim Form, the proposed expansion goes well beyond the points made on the Claim Form.

d. If the Claimant wanted to raise criticisms about the outcome of the grievance, she ought to have applied to amend her claim at either of the two Preliminary Hearings. She did not do so. There was no application to amend at any point during the Final Hearing. Factual findings

[9]The Claimant started work with the Public Health Laboratory Service on 10 June 2002 as a Medical Technical Officer Grade 2, initially based at the Central Public Health Laboratory, on Colindale Avenue, London NW9. By 2012, her title had changed to that of Healthcare Scientist and her location had become the Royal London Hospital in Whitechapel, London. By 2015, her hours reduced to 21 hours per week following a period of maternity leave.

[10]In October 2016, a tender exercise started to find a new long-term location for PHL London. It was initially hoped that the tender process would be completed by July 2017. However, for a variety of reasons, the tender process was delayed. The parameters of the tender exercise evolved over time as a result of different political priorities about how public health would be managed. On 1 October 2021, the responsibility for Public Health England’s functions transitioned to the UK Health Security Agency. There were repeated delays to the tender process. Even today, the tender process has yet to start.

[11]When the tender was first announced, the Claimant was temporarily relocated to Addenbrookes Hospital in Cambridge, which was closer to her home. Other colleagues working in Whitechapel were relocated to Colindale Avenue or to Skipton House, both in London. The Claimant’s line management were based at Nobel House. The Claimant was assigned different tasks at different times, including working on the response to the Covid-19 Pandemic.

[12]The potential implications of the proposed tender process have inevitably created uncertainty for those staff, including the Claimant.

[13]In January 2021, the Claimant had her first panic attack. She attributes this to a mixture of work and Covid-19 related stress. In response she was assessed by Occupational Health and assigned duties she could carry out from home. During 2021 she increased her weekly hours to 20 hours a week.

[14]In March 2022, the Claimant’s contractual hours were increased to 25.5 hours per week, although the Claimant was not paid accurately for the full hours she worked for the outset of the change. The Respondent’s position is that the increase in hours was a temporary arrangement and that there was never any permanent change to her terms and conditions. The Claimant was told that her increased hours would end in March 2023. Thereafter, it was anticipated she would work 5 hours a day from Monday to Thursdays, a total of 20 hours per week.

[15]Between June and October 2022, Jonathan Turner took over as the Claimant’s line manager. In October 2022, that role was taken on by Ms Norah Easy, following her appointment as Interim Regional Head of Operations for London & South East England.

[16]On 2 November 2022, the Claimant was signed off work having suffered another panic attack the previous week. She started a lengthy period of sickness absence, caused by her anxiety condition, which led to her having further panic attacks. On the Claimant’s own account, one of the significant causes of her sickness absence was the uncertainty about her role caused by the impending tender review process.

[17]She was reviewed by Occupational Health on several occasions in the first half of 2023. On 25 May 2023, she had a Stage 1 sickness meeting with Ms Easy.

[18]The Claimant attempted a phased return to work in June 2023. On 6 June 2023, the Claimant and Ms Easy spoke by Teams and agreed she would work 3 hours in week one, increasing her hours thereafter. It was agreed that there would be weekly check ins with Ms Easy as well as an individual stress risk assessment. An OH appointment was scheduled for 13 June 2023. It was anticipated that the phased plan would be adjusted following that review [444].

[19]Consistent with the phased return, the Claimant worked intermittently through June. On 22 June 2023, she reported she was not well enough to work but wished to listen to the staff science update concerning the PHL tender. On 3 July 2023 she confirmed her phased return had ended and she was ready to resume normal hours.

[20]On 3 and 4 July 2023, she submitted annual leave requests via MaPs for 4–7 July 2023, 24-27 July 2023, 17-28 August 2023, 25-26 December 2023 and 1 January 2024. Ms Easy approved all of these dates and undertook to fix carry-over leave not yet visible on MaPs [447].

[21]Shortly afterwards, on 10 July 2023, the Claimant became unwell again and was unable to work on 10 July and 11 July. She stated she would use annual leave on 12–13 July 2023 to allow her anxiety to settle. Ms Easy approved this two-day period of leave, as confirmed by Ms Easy’s email on 15 September 2023 [489].

[22]The relevant part of the Respondent’s Annual Leave Policy was worded as follows: “Sickness during annual leave If you’re unwell while you’re on annual leave, you can request for this to be recorded as sickness absence instead. If you want to do this, you need to let your line manager know immediately and follow the Supporting Attendance Policy. Annual leave during sickness absence You’ll continue to accrue annual leave in the normal way if you’re on sickness absence. You can choose to use your annual leave during a period of sickness absence if you are receiving half or nil pay. To do this, you’ll need to request annual leave with your line manager. You will then receive full pay for the annual leave you take, but it won’t break the continuity of your sickness absence where this is classed as long term.”

[23]The relevant part of the Respondent’s Supporting Attendance Policy was worded as follows: “Unauthorised absence If you are absent from work and don’t let your manager know and/or provide a fit note when this is required, your absence may be considered unauthorised and addressed under the Disciplinary Policy. You should know that this may also affect your pay … If you’re absence for longer than 7 consecutive calendar days, you’ll need to provide a ‘fit note’ from your doctor or health practitioner to your manager as soon as possible after the 8th day of your absence. If your absence continues, you’ll need to continue providing fit notes to cover the period, normally within a week of the previous certificate expiring unless there are extenuating circumstances.”

[24]The Supporting Attendance Policy stated that after 5 years of service, an employee was entitled to 6 months full pay and then 6 months half pay. It is calculated on a 12-month rolling period taking into account any sick pay received in the 12 months prior. Given the amount of time that the Claimant had already taken off work on sick leave, her sick pay reduced from full pay to half pay on 17 July 2023. On 17 July 2023 she provided a fit note covering the period to 6 August 2023 [448–451].

[25]On 9 August 2023, the Claimant requested through MaPs to book annual leave for the period from 7-16 August 2023. The Claimant explained she had assumed her fit note continued during that week but had discovered it did not. Ms Easy approved this request for the entirety of the period, even though part of the request was retrospective.

[26]The period from 17–28 August 2023 had already been pre-booked as annual leave. As a result, the Claimant was expected to return to work on Tuesday 29 August [489]. At 9am on 29 August 2023, the Claimant emailed Ms Easy with the subject line “sorry unwell”, saying “Sorry my anxiety is bad now, and I can’t work. I’ll see the GP as soon as I can”. In response, the next day, 30 August 2023, Ms Easy asked if she could arrange a catch up on that day if possible, as she was off for the rest of the week. She also added: “Can I also check if you were unwell whilst you were on leave as your annual leave shouldn’t be used to cover sickness. Can you also send in a sick note as soon as you can to authorise your absence and hope you feel better soon”

[27]The Claimant only responded the following day, 31 August 2023 at 13:58. She apologised for missing Ms Easy’s email. She said she would check the position so far as sick notes were concerned through the summer. She said she would selfcertify for this week as she had not got hold of the GP. Therefore, the period from 29-31 August 2023 was not covered by a medical certificate, and the Claimant attempted to cover this period by self-certifying her absence.

[28]A further fit note dated 4 September 2023 signed the Claimant off work for “mental health” from 4 September 2023 to 14 September 2023 [471]. She was due to return on 18 September 2023. On 11 September 2023, Ms Easy updated HR on the Claimant’s absences over the summer. In response, HR suggested a catch up to discuss what further action under the absence management procedure.

[29]On 15 September 2023, Payroll queried with Ms Easy the periods of annual leave recorded by the Claimant in July and August 2023 (namely 12-13 July and 7-24 August), and whether during these periods the Claimant was fit to return to work. This was because, on their understanding, employees could not use annual leave whilst certified as being unfit for work but could be paid for the annual leave separately. Essentially what this was noting was that annual leave could not be used as a substitute for being signed off work by a GP if the Claimant was too unwell to work [494]. This email was not saying that employees were not entitled to be paid for annual leave during periods of sickness absence if they were on half pay or no pay at the time.

[30]On 18 September 2023, the Claimant provided a further fit note covering the period to 8 October 2023 [488/9].

[31]On 26 September 2023, Ms Easy emailed the Claimant suggesting a catch-up call. The purpose of the call was described as: “to arrange another meeting to discuss your absence and way in which we can make sure that you can be fully supported during your absence. I also think it will be beneficial for you to have an occupational health referral which will also guide this support, but we can discuss this before I do the referral” [496]. By that stage, HR were advising Ms Easy that the Claimant be moved to Stage 2 under the sickness absence procedure [497].

[32]On 9 October 2023, the Claimant emailed Ms Easy to say that she was still feeling unwell and would try to speak to the GP that day [498]. The Claimant tested positive for Covid-19 and this prevented her from contacting her GP. The Claimant did not provide a further Fit Note to cover her absence from 9 October 2023 onwards. The period from 9 to 13 October 2023 was treated as covered by her selfcertification.

[33]Also on 9 October 2023, the Claimant wrote to HR (copying Ms Easy) stating that the tender process was triggering her anxiety. She said that it appeared from the current tender document that her post would no longer exist. This was based on what she had been told by a colleague, Michelle Cairns, who had seen the tender specification document. She asked that “my consultation begin sooner and finally end the 8 years of uncertainty”.

[34]On 10 October 2023, the Claimant was sent a document confirming an amendment to her terms and conditions. This showed that whilst under her existing details she had been based at Addenbrookes Hospital in Cambridge, her new details recorded that she was based at London SE1. This was a permanent change expressed to be effective from 1 December 2016 ie several years earlier. The implication was that she would be entitled to an additional payment for being based in London [500].

[35]The Claimant chased for a response to her email to HR on 13 October 2023. Ms Easy responded on 16 October 2023 as follows: Mark Eades has advised that he has no dates at the moment on the London tendering process but “you will be regularly briefed on progress and he’ll let us know once he’s had a response. The tender process is currently on hold awaiting Exco approval”. In the meantime, the Claimant was told to raise any concerns or queries and asked if she required any support [504].

[36]On the same day, the Claimant emailed that she was still feeling unwell. She reiterated that the tender was a problem for her mental health improvement. Ms Easy recognised in her response that whilst the response from Mr Eades did not completely answer the query, “as soon as there is an update then you will be informed”. Referring to the letter of 10 October 2023, the Claimant said she had been sent “yet another incorrect change to my contract letter with no prior discussion or agreement. To improve my mental health, I must have a resolution”.

[37]On Monday 16 October 2023, Mark Eades replied to the Claimant to say that consultation would occur “at the right time” and that contractual arrangements remained unchanged ie that she remained assigned to PHL London albeit that she was undertaking some work from the Cambridge lab. The Claimant requested a consultation as soon as possible to aide her health [510].

[38]By 16 October 2023, Payroll had identified an overpayment from 17 July 2023 to 31 August 2023. This arose because her contractual sick pay had reduced to half pay on 17 July 2023 but she had continued to be paid at full rate until the end of August 2023. Payroll posted a letter to the Claimant’s home address to notify her of this overpayment. Although this letter has not been included in the bundle of documents for use at the Final Hearing, it is agreed that it would have been worded in similar terms to a second letter sent on 21 December 2023.

[39]This was worded as follows: “Dear Dr Murphy I am writing to confirm that unfortunately you have been overpaid between 17-Jul-2023 and 31-Aug-23. The overpayment has occurred because you were paid full pay when you should have been on half pay for this period. We have calculated the net value of the overpayment after statutory deductions have been reversed and have attached a breakdown for your information. It is my responsibility to make you aware that UKHSA is duty bound to recover the overpayment in full. I have therefore included an invoice from UKHSSA for the overpayment that needs to be repaid together with information regarding how the payment can be made to our finance department. If you have any queries regarding the overpayment or overpayment letter, please contact the Payroll Department on 020 8327 7900 or by email to payroll@ukhsa.gov.uk If you would wish to repay on a short-term payment plan, please contact ex.employees@ukhsa.gov.uk who will consider your proposal. Thank you for your co-operation which is greatly appreciated and please accept our apologies again for any inconvenience this may cause. Yours sincerely UKHSA Overpayments Officer”

[40]On Monday 16 October 2023 at 20:58, the Claimant emailed Ms Easy and Zoe Gepp in HR to query this October letter. She noted she had taken annual leave between 24-27 July and 7-29 August 2023 and had been on sick leave since this date. She ended her email with three questions, including whether her annual leave pay had been reduced in line with sick pay [506] [520–523].

[41]On Wednesday 18 October 2023, Ms Gepp emailed Ms Easy suggesting a discussion with the Claimant regarding the overpayment issue [506]. She confirmed to Ms Easy that “annual leave can be used whilst on sick leave when receiving half or nil pay”. She did not indicate any preconditions, such as a specific request by the employee to be paid for periods booked as annual leave whilst on sick leave.

[42]By Thursday 19 October 2023, without a further response to her email sent three days earlier, the Claimant lodged a formal grievance. The grievance alleged a mismatch of job role and description (including place of work and hours); prolonged delays in the tendering process without consultation; and incorrect pay. She alleged these had caused her panic attacks and anxiety. The outcome she requested was “to formally request you complete the consultation on my role in the London service without further delay” [508-510]. Effectively, it was asking that her role should be made permanent notwithstanding any ongoing delay in tendering for the London service. Therefore, the scope of the grievance was particularly wide, effectively asking for clarity as to the tender process and the Claimant’s place within it.

[43]Ms Easy acknowledged her grievance on 19 October 2023. In a follow up email on 23 October 2023, she said that HR would be in touch with further advice. She asked if there was any support she could provide.

[44]Also on 23 October 2023, Ms Easy wrote in response to the Claimant’s email of 16 October 2023 which had asked her three questions. Ms Easy recognised that the Claimant had provided a sick certificate for the period between 17 July and 6 August 2023. She also asked the Claimant to cancel the annual leave from 24 to 27 July as the Claimant had certified sickness on these dates, which she (Ms Easy) was unable to cancel. This and other wording in the email demonstrated that Ms Easy had misunderstood the application of the Supporting Absence Policy in relation to annual leave. She understood that annual leave could only be taken (and therefore paid) if an employee was fit for work. In her view, if the annual leave was booked to be taken during a period of certified sick leave, then that annual leave would be accrued to be used later [520]. Effectively her answer to the Claimant’s questions was that holiday pay would always be paid at full pay because annual leave would be taken only when the Claimant was not certified as unfit to work. Ms Easy asked the Claimant to provide a sickness absence certificate or annual leave request from 16 October.

[45]In her response, the Claimant said that she was locked out of her laptop. She phrased her email as follows: “I’ve got back into my laptop, but I can’t modify anything in MaPs. I have a overwrite message to add AL for Oct 16-20 and 30-31, Nov 1 and 2. I think MaPs had me on sick leave, I can’t close this. I also can’t modify anything before 1st Oct, error message ‘due to go live’. The error message says HR has to make the changes.” [522]

[46]This was a somewhat oblique request to Ms Easy to be able to take leave on October 16-20, 30-31, and on November 1 and 2.

[47]In her reply, Ms Easy confirmed that annual leave could not be added to MaPs until HR had actioned particular changes. This was contemporaneous confirmation that the Claimant was indeed prevented from booking annual leave through MaPs at that point. She asked the Claimant to confirm the particular leave dates sought [525]. There is no email indicating that the Claimant confirmed these annual leave dates. However, it appears that Ms Easy recorded them as annual leave at the time, given the wording of her later email dated 19 March 2024.

[48]The most recent of the Claimant’s sick notes had expired by 16 October 2023. As recorded by Ms Easy in an email to Zoe Gepp in HR on 31 October 2023, the Claimant was regarded as being on unauthorised leave from 16 October 2023. On 12 December 2023, the Claimant’s sick pay ended. At that point, she had exhausted her contractual entitlement to any sick pay.

[49]On 31 October 2023, Mr Turner was appointed Decision-Maker for the Claimant’s grievance. He was provided with a copy of the grievance on 6 November 2023. He sent the Claimant a letter acknowledging the grievance on 7 November 2023. It was agreed that a Teams meeting should be held with the Claimant and it was fixed for 20 December 2023. In advance of the meeting, Mr Turner prepared a detailed table analysing the Claimant’s concerns and the desired outcomes suggested. A grievance meeting was fixed for 20 November 2023. Following the meeting, the Claimant provided Mr Turner with further information about what she had discussed.

[50]At around this point, Mr Turner became heavily involved in responding to a Swine Flu incident. This delayed the amount of time he could spend on the Claimant’s grievance. It was decided that a grievance investigator should be appointed and Ms Vivien Jean was selected for this role. On 22 December 2023 Ms Jean was sent the investigation’s Terms of Reference.

[51]Whilst the grievance was progressing, Ms Easy attempted to obtain up to date medical advice from Occupational Health. A referral was made on 13 November 2023, but the Claimant missed the Occupational Health appointment due to a family funeral. The appointment was rescheduled and took place on 9 January 2024.

[52]On 12 December 2023, the Claimant submitted a further Fit Note signing her off work with Anxiety during the period from 12 December 2023 to 2 January 2023. Because the sick note did not deal with period before 12 December 2023, there was a gap in the coverage provided by the Claimant’s Fit Notes since October.

[53]On 21 December 2023, after internal consultation with Operations and HR, Ms Easy issued a letter classifying the period from 16 October–11 December 2023 as unauthorised absence unless a fit note was provided by 31 December 2023. It appears that the period from 9 October to 13 October 2023 was accepted as sick leave, notwithstanding the absence of a certificate, perhaps because the Claimant had tested positive for Covid-19. The letter said that intermittent Fit Note cover was unacceptable and that she was consulting HR colleagues. The letter appended the Supporting Attendance Policy to emphasise that Fit Notes were required. It did not draw attention to one aspect of the Policy, namely that failure to comply with its requirements could lead to disciplinary action being taken.

[54]The letter of 21 December 2023 also proposed regular catch-ups, namely every ten days by telephone with the next catch up on 3 January 2024.

[55]The letter included the following wording in relation to annual leave: “Regarding your annual leave requests, I would also like to highlight that the Policy notes that although you can choose to use your annual leave during a period of sickness if you are on half pay, it will not break the continuity of your sickness where this is classified as long term”

[56]Ms Easy continued that she would be arranging for the Claimant to be paid for annual leave booked on the dates listed in July, August, December and January. No timescales were provided for when this would be paid, nor any explanation for why it had not already been paid in the months that the annual leave had been taken. The letter made no reference to the status of her request for annual leave in October and November.

[57]On 2 January 2024, the Claimant emailed that she was working through the unauthorised-absence letter, remained unwell, and wished to delay the catch-up planned for 3 January to 8 January 2024 after seeing her GP. She subsequently supplied a new fit note covering the three-week period from 2 January to 23 January 2024. It appears that the Claimant and Ms Easy did speak on 8 January 2024 but the content of that conversation is unclear. It is unclear when they planned to speak again. Based on Ms Easy’s letter of 21 December 2023, it is likely she planned to speak to the Claimant again around ten days later, to review the anticipated report from the Occupational Health appointment the following day.

[58]The Occupational Health appointment took place on 9 January 2024. The report was received on 18 January 2024. It concluded she was unlikely to resume work in the short term while her grievance was unresolved. It noted she had ongoing regular panic attacks triggered by her relationship with her employer. The report predicted improvement once the work conflict was resolved and indicated no permanent restrictions thereafter [771–773].

[59]Ms Jean’s grievance investigation proceeded in January 2024. The Claimant chased for the grievance to be concluded on 10 January 2024 and again on 30 January 2024. Ms Jean interviewed relevant witnesses between 9 and 25 January 2024. Deborah Williamson, Director, Specialised Microbiology and Laboratories, said in her interview that when she started her role in July 2023, she was asked to undertake a landscape review of service delivery to present a strategic vision of how to proceed with operational delivery. This review had not yet started but was due to start in the next couple of months. It was hoped to implement a national network aligned to the Respondent’s strategic directions “in 2024”. This would have included a decision on the location and structure of the London Laboratory Services.

[60]On 22 January 2024, the Claimant asked her GP to issue her with a further Fit Note signing her off work. She attached the certificate to an email dated 25 January 2024. This covered her for a further three weeks [813].

[61]Ms Jean delivered her report to Mr Turner on 30 January 2024 [865–882]. She considered that the two allegations raised by the Claimant should be fully upheld. Her report was sent to the Claimant on 2 February 2024. Mr Turner met the Claimant on 13 February 2024 to discuss the report and provide the Claimant with a final opportunity to ask questions and offer any further evidence and information pertinent to the case before he issued his grievance outcome.

[62]On 19 February 2024, the Claimant emailed Ms Easy saying: “Sorry I’m still unwell. I hadn’t realised my certificate ran out last Tuesday. It was very stressful with the grievance procedure last week”.

[63]The same day the Claimant was again signed off sick for a further three weeks with anxiety disorder [906].

[64]Ms Easy forwarded this email to Zoe Gepp in HR the following morning noting that the Claimant did not realise that her previous certificate had run out.

[65]On 20 February 2024 Ms Easy herself started a period of sickness absence which lasted until 6 March 2024 when she returned on a phased return to work. It is unclear what arrangements were put in place to cover Ms Easy’s line management responsibilities during her absence.

[66]On 20 February 2024, Mr Turner issued his decision. He upheld the grievance in relation to both of the allegations he considered that the Claimant had raised. He found that the Claimant’s current role did not match her job description, place or hours. Secondly, he found that the prolonged tender had detrimentally affected her and her colleagues. By way of outcome, he made certain recommendations as to what the Respondent should do.

[67]His recommendations were worded as follows:• Primarily, begin a thorough review of your job role, including your contractual job description and engage you in these conversations as soon as possible

• Request the business review their internal processes, communications – ensuring lessons learnt from this case are applied to prevent future incidents of this nature from occurring again

• Consider providing a formal apology to you, to address potential wellbeing detriments caused due to this prolonged process

• For the wider issue, I may suggest the business look to the review of the London Laboratory Service and communicate a high level view of likely timeframes and milestones to the affected staff, reviewing your original role and what the service requirement may be moving forward, taking relevant formal actions as necessary.

[68]He added “whilst I cannot force the business to address my above recommendations and nor can I control how they choose to do so, should they do so; I hope I can provide you with some reassurance that I will make these strong recommendations to the business, for their serious consideration”. No timescale was provided for implementing these recommendations.

[69]Mr Turner wrote to Dr Caroline Henwood, Deputy Director Public Health Microbiology Business Operations on 27 February 2024. He set out his recommendations, adding: “I understand there may be repercussions associated with my above recommendations for other affected employees, I therefore suggest that the business considers extending my recommendations to those individuals who you believe this may impact. [The Claimant] was informed that the business may need some reasonable time to consider my recommendations and make plans etc and was subsequently instructed by myself to adopt some patience until contact is made from you with next steps in the coming weeks”

[70]I accept that what Mr Turner records in this letter fairly reflects what the Claimant had been told about the likely timescales for the business to review his recommendations.

[71]On 4 March 2024, the Claimant purported to appeal against the grievance outcome even though her grievance had been upheld. She wrote “I understand that the business cannot forecast the time and result of the tender, but I need a resolution to this temporary job situation. I have requested a formal consultation of my role and can provide further information and clarity as to why I feel this is a suitable course of action”.

[72]On the same date, 4 March 2024, Mr Turner emailed the Claimant to say that his recommendations were being taken forward by Caroline Henwood with support from HR. He said he anticipated that they would be in touch shortly. He apologised for the time that this was taking and the distress this could cause.

[73]On 7 March 2024, Dr Henwood emailed the Claimant. She thanked her for her patience and apologised for the delay. She said she had now had the chance to review the recommendations and she was attaching her formal response. The Claimant alleges that there was no apology in this letter as had been recommended. The following sentences are potentially relevant to whether there should be an apology: “Firstly, I am very sorry to hear about the impact that this process has had on your personal wellbeing … Regarding the future of the London Laboratory, I recognise that the tender process has now been ongoing for a prolonged period and the impact of that uncertainty on staff for which I can only apologise”

[74]The letter proposed a meeting between the Claimant and Ms Easy over the next couple of weeks to review her job role and job description, consider reasonable adjustments, and hoped to be able to provide updates on the tender “in the coming weeks to confirm a high-level view of proposed next steps and timeframes” [946].

[75]On 8 March 2024, Ms Easy emailed the Claimant about the Claimant’s fitness to work. She hoped the Claimant was okay and apologised for the delay in responding because she had been absent. She said that the Claimant would still need to provide a Fit Note for the period from 13 February to 18 February 2024. She then quoted the relevant paragraphs from the Supporting Attendance Policy which included the following passage: “Unauthorised absence If you’re absent from work and do not let your manager know and/or provide a fit note when this is required, your absence may be considered unauthorised and addressed under the disciplinary policy. You should know that this may also affect your pay”

[76]In the Claimant’s case, as she was on long term sick leave, she could not selfcertify. Instead, she needed to provide a Fit Note in respect of the relevant period.

[77]In response, the Claimant asked if there was any alternative to disciplinary action for her error in failing to provide a fitness to work certificate. On 11 March 2024, she provided fitness to work certificates for the periods from 13-19 February 2024 and from 11 March to 3 April 2024. The HR representative responded that as certificates had been provided the matter was now closed.

[78]On 13 March 2024, the Claimant and Ms Easy had an informal catch-up call by Teams. During this call, it is likely that Ms Easy and the Claimant discussed the Claimant’s missing Fit Note in relation to the earlier period from 16 October 2023 to 11 December 2023. Given the Claimant’s concerns about facing disciplinary action for failing to provide these fit notes, it is likely that this possibility would also have been discussed. The Claimant also raised her concerns about the management of her grievance and of the resulting recommendations. The Claimant had been due to attend a meeting with Mr Turner on 15 March 2024. She asked for this meeting to be rescheduled, given an increase in her anxiety levels.

[79]On 14 March 2024, Ms Jobson, HR Casework Management Lead, wrote to the Claimant as follows [983]: “I hope you are well. Apologies for the delay in responding. My understanding is your concern about the decision is that the recommendations have not yet been put in place. I understand Deputy Director Caroline Henwood has taken responsibility for this and is being supported by her HRBP Natalie Boreham. I appreciate these things may not be happening as quickly as you may like but please be assured there are steps being taken to progress the recommendations.”

[80]On 15 March 2024, Ms Easy sent the Claimant a letter, by email, headed “Unauthorised absence reminder”. It again indicated that the Claimant had not provided a Fit Note for the period from 16 October 2023 to 11 December 2023. It stated that if the Claimant did not provide a Fit Note covering the period by Monday 25 March 2024, “your pay will be suspended for the period and I will consider starting formal disciplinary action under the Disciplinary Policy, which could result in your dismissal”. It concluded by reminding the Claimant about the support and resources available as part of their Wellbeing Offer.

[81]On 18 March 2024 the Claimant replied to Victoria Jobson, copying in Jonathan Turner. She said that an appeal appeared fruitless. She complained about the grievance outcome letter’s failure to adopt the recommendations made in the investigation report. She added that the only recommendation that had been actioned by the business was a review of her job role.

[82]On 19 March 2024, Ms Easy wrote again to the Claimant. She reminded her that if a Fit Note was not provided by 26 March 2024 covering the period from 16 October 2023 to 11 December 2023, she would consider starting formal disciplinary action under the Disciplinary Policy, which could result in the Claimant’s dismissal [988].

[83]On 19 March 2024, Ms Easy emailed the Claimant saying she had raised a MaPs ticket to remove the following dates of annual leave “which were booked while you were on Long Term Sickness Absence as annual leave cannot be used whilst there was open sickness absence, but only to top up your salary if you are on half pay”. She then listed the particular annual leave dates recorded on the system between 7 August 2023 and 1 January 2024. These included 20 hours from 16 October 2023 to 19 October 2023; and 20 hours from 30 October 2023 to 2 November 2023. She asked the Claimant to forward to her the letter she had received from payroll regarding the overpayment [995]. She then wrote, “if is the case that you were using annual leave to top up a half pay entitlement, then I’ll need to raise a MaPs request to advise them of this”. This appeared to contradict what she had just written raising a ticket to remove this sickness absence.

[84]On 20 March 2024, the Claimant responded. She said she was unaware she could not take her annual leave in October. She attached a Fit Note covering the period from 9 October 2023 to 11 December 2023, and a copy of the letter from payroll dated 21 December 2023. She followed this up with a further email hoping that her unauthorised leave issue would resolve rapidly.

[85]The Claimant agreed to meet Mr Turner on 22 March 2024. In advance of that meeting, Ms Easy attempted to identify suitable alternative roles that the Claimant could potentially perform. Although two specific roles were identified, these were not thought to be suitable and so were not raised with the Claimant during the 22 March 2024 meeting.

[86]The job-role review meeting took place on 22 March 2024, attended by Mr Turner (both he and Ms Easy were on annual leave; despite this, Mr Turner attended to avoid delay). The parties agreed that suitable roles would be scoped at Cambridge or Colindale – which were closer to the Claimant’s home. These would be cross-checked against the Clinical Scientist job description by Mr Malcolm Guiver (Senior Clinical Scientist) and by HR and would be shared with the Claimant by 5 April 2024. Mr Turner says he confirmed any move would be temporary pending the London tender; he perceived no objection at the time. He records the Claimant as being content at the conclusion of the meeting.

[87]Approximately one hour later, still on 22 March 2024, the Claimant resigned with immediate effect, citing (among other matters) a failure to resolve her grievance, threatened disciplinary action, exacerbation of her health, unpaid holiday pay, and that the proposed job-review outcome would result in another temporary role under an indeterminate tender timeline. She said she considered herself to be constructively dismissed.

[88]On the same day, she initiated Early Conciliation by contacting ACAS. An Early Conciliation Certificate was issued on 3 May 2024.

[89]Mr Turner and Ms Easy subsequently invited her to reconsider her resignation. She declined on 28 March 2024 and requested communications by email only.

[90]Following the Claimant’s resignation, on 4 April 2024 HR confirmed that having received the complete fit note for the period from 16 October 2023 to 11 December 2023, no further action would be taken in relation to unauthorised absence during that period.

[91]Ms Easy arranged for the Claimant’s accrued but untaken annual leave to be calculated. She advised that the overpayment would be offset against the accrued leave, in line with Managing Public Money and payroll guidance [1048–1060, 1131, 667].

[92]By late April 2024, the Claimant’s unused annual leave was processed and paid net after offsetting the overpayment, consistent with the payroll position that overpayments must be recouped irrespective of cause. Written confirmations were issued on 15 and 22 April 2024. [1059–1060] [667, 995–997].

[93]The Claimant made a Subject Access Request. She was waiting until she received the documents in response to that request before issuing Tribunal Proceedings. Tribunal proceedings were issued on 21 June 2024.

LIST OF ISSUES

[94]A list of the issues requiring a decision at this Final Hearing is appended to these Reasons. This had been revised following a Preliminary Hearing conducted by Employment Judge Byrne on 26 June 2025 and was further adjusted by the withdrawal of particular allegations at the start of the Final Hearing. LEGAL PRINCIPLES Constructive unfair dismissal

LEGAL PRINCIPLES

[95]Where an employee resigns and alleges that this resignation amounts to a constructive unfair dismissal, it is first necessary to analyse whether the resignation was in law a dismissal. A resignation will be treated as a dismissal if it at least in part amounts to the employee’s decision to terminate the employment in response to a fundamental breach of contract by the employer.

[96]A fundamental breach of contract can be established based on a breach of an express or an implied term of the contract. In the present case, the Claimant relies on a breach of the implied term of mutual trust and confidence. This is the term that the employer will not conduct itself in such a manner which has the purpose or the effect of destroying or seriously damaging the relationship of trust and confidence. Where, as here, the employee relies on a series of acts, the Trust must consider whether the acts in that series individually or cumulatively breached the relationship of trust and confidence. The last act in the series need not itself reach that threshold so long as it contributes something to the overall loss of trust and confidence.

[97]If there is a breach of the implied term of mutual trust and confidence, then this will be a fundamental breach of the employment contract. Time limits in relation to claims under Equality Act 2010 (EqA 2010)

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

b. Such other period as the employment tribunal thinks just and equitable 2. …. 3. For the purposes of this section _ a. Conduct extending over a period is to be treated as done at the end of the period; b. Failure to do something is to be treated as occurring when the person in question decided on it.

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

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

[2003] ICR 530

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

[2003] IRLR 434

, CA).

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

[2018] ICR 1194

at paragraph 19). However: “There is no … requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard” (Abertawe at para 25)

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

[104]It will frequently be fair to hold Claimants bound by time limits which they could, had they taken reasonable steps, have discovered. If the delay in issuing proceedings has been caused by the fault of an adviser, this is a potentially relevant factor that potentially excuses a failure to issue proceedings in time, or a delay in issuing proceedings thereafter (Hunwicks v Royal Mail Group plc EAT 0003/07; 20 March 2007 per Underhill J at paragraphs 9 and 13). However, to be a relevant factor, the bad advice must have been the reason for the delay.

[105]Awaiting the outcome of an internal grievance procedure before making a complaint is just one matter to be taken into account by a tribunal considering the late presentation of a discrimination claim (Apelogun-Gabriels v Lambeth London Borough Council

[2002] ICR 713

, CA per Peter Gibson LJ at p719). Burden of proof for Equality Act 2010 claims

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

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

[2005] ICR 931

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

[2007] ICR 867

and by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

(at paras 25- 32). In Efobi v Royal Mail Group Limited [2021] ICR at paragraph 26, Lord Leggatt made it clear that Section 136 EqA 2010 had not made any substantive change to the previous law.

[108]The burden of proof starts with the Claimant. It is for the Claimant to prove facts from which the Tribunal could infer, in the absence of any other explanation, that the treatment was at least in part the result of her protected characteristic. At the first stage, when considering what inferences can be drawn from the primary facts, the Tribunal must ignore any explanation for those facts given by the Respondent and assume that there is no explanation for them. It can however take into account evidence adduced by the Respondent insofar as it is relevant in deciding whether the burden of proof has moved to the Respondent.

[109]The initial burden of proof is on the Claimants. In order for the burden of proof to shift from each Claimant to the Respondent on a particular allegation, it is well established that it is insufficient for the Claimant merely to show a difference in status and to show detriment treatment (see Madarassay at paragraph 54). In Network Rail Infrastructure v Griffiths-Henry

[2006] IRLR 865

, Elias J at paragraph 15 said that the mere fact that an unsuccessful candidate was a Black woman and successful candidates were White men would be insufficient to be capable of leading to an inference of discrimination in the absence of a satisfactory nondiscriminatory explanation. To shift the burden of proof, a claimant must also prove something more. That is, in the present case the Claimant must prove facts from which the Tribunal could infer that there is a connection between the protected characteristic of disability and the detrimental treatment, in the absence of a nondiscriminatory explanation.

[110]If such facts are established, then the burden of proof transfers to the Respondent to establish on the balance of probabilities that the protected characteristic formed no part of the reasoning for the impugned decisions. If the Tribunal accepts that the reason given for the treatment is genuine, then unless there is evidence to warrant a finding of unconscious discrimination, such that the Tribunal is really finding that the alleged discriminator has concealed the true reason even from himself, there will be no basis to infer unlawful discrimination at all.

[111]In Hewage v Grampian Health Board

[2012] ICR 1054

, in a passage endorsed by Lord Leggatt in Efobi at paragraph 38, Lord Hope reminded that it was 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” (paragraph 32).

[112]I have also born in mind the nuanced approach to the burden of proof explained by His Honour Judge James Tayler in Field v Steve Pye & Co

[2022] IRLR 948

at paragraphs 33 to 46. At paragraph 46, he said that where a claimant contends that there is evidence that should result in a shift in the burden of proof, they should state concisely what that evidence is in closing submissions, particularly where they are represented. Knowledge of disability

[113]The statutory provision prohibiting discrimination arising from disability in Section 15(1) Equality Act 2010 does not apply if the person alleged to have committed this discrimination shows they did not know and could not reasonably have been expected to know that the claimant had a disability.

[114]An employer is not subject to a duty to make reasonable adjustments if it does not know and could not reasonably be expected to know that the claimant has a disability and is likely to be placed at a substantial disadvantage (Equality Act 2010, Schedule 8, paragraph 20).

[115]As a result, actual or constructive knowledge is relevant to both Section 15 discrimination arising from disability and Section 20/21 failure to make reasonable adjustments. The required knowledge for actual or constructive knowledge are of the facts constituting the employee’s disability, namely the following three elements: “(a) a physical or mental impairment, which has (b) a substantial and longterm adverse effect on (c) his ability to carry out normal day to day duties”

[116]Provided the employer has actual or constructive knowledge of the facts constituting the employee’s disability, the employer does not also need to know that, as a matter of law, the consequence of such facts is that the employee is a ‘disabled person’ (Gallup v Newport County Council

[2014] IRLR 211

at paragraph 36).

[117]The EHRC Code provides as follow: Paragraph 5.14 “Employers should consider whether a worker has a disability even where one has not been formally disclosed”. Paragraph 5.15 “Employers must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially”.

[118]Where a Respondent has failed to make enquiries, the Tribunal must go on to decide what the employer might reasonably have been expected to know had it made such an inquiry. This includes assessing whether the claimant would have suppressed information about symptoms even if reasonable enquiries had been made (A Limited v Z

[2020] ICR 199

). Discrimination arising from disability

[119]Section 15 Equality Act 2010 is worded as follows:(1) A person (A) discriminates against a disabled person (B) ifa. A treats B unfavourably because of something arising in consequence of B’s disability; and b. A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

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

[120]The first issue for the Tribunal to assess is whether the Claimant’s treatment was influenced to any significant extent by any consequences of the disability. This requires a focus on the reasoning in the mind of the person making the decision. The Tribunal needs to consider the conscious or unconscious thought processes of the alleged discriminator, keeping in mind that their actual motive in acting as they did is irrelevant. The “something” that causes the unfavourable treatment need not be the main or sole reason but must have at least a significant (ie more than trivial) influence on the unfavourable treatment and so amount to an effective reason for or cause of it (Pnaiser v NHS England

[2016] IRLR 70

at paragraph 31).

[121]The second issue, namely whether the reason/cause is “something arising in consequence of B’s disability” was explained as follows in Pnaiser at paragraph 31: “the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. […] This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.”

[122]In York City Council v Grosset

[2018] ICR 1492

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

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

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

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

[2005] ICR 1565

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

[127]Section 20(3) Equality Act 2010 provides: “… a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage”

[128]Section 21 Equality Act 2010 provides:(1) A failure to comply with [this] requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.”

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

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

[131]In Ishola v Transport for London

[2020] IRLR 372

Simler LJ discussed the extent to which the words ‘provision criterion or practice’ could apply to one off acts. She said: “To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply … the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply” (paragraph 36).

[132]She added (at paragraph 38): “all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again.”

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

[2017] ICR 160

at paragraph 21.

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

[2018] IRLR 1090

at paragraphs 48 and 49).

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

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

[2010] IRLR 283

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

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

[137]In Newham Sixth Form College v Saunders

[2014] EWCA Civ 734

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

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

[2007] IRLR 579

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

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

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

[2017] ICR 160

at paragraph 73.

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

[142]So far as is material, section 19 Equality Act 2010 provides:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s;

(2) For the purpose of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant characteristic of B’s ifa. A applies or would apply, it to persons with whom B does not share the characteristic, b. It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, c. It puts, or would put, B at that disadvantage, and d. A cannot show it to be a proportionate means of achieving a legitimate aim.

(3) The relevant characteristics are … disability …

[143]As explained in paragraph 4.3 of the Equality and Human Rights Commission Code of Practice on Employment (the EHRC Code), indirect discrimination occurs when an employer applies an apparently neutral provision, criterion or practice which puts workers sharing a protected characteristic at a particular disadvantage. As explained by Lady Hale in Chief Constable of West Yorkshire Police v Homer

[2012] ICR 704

at paragraph 17: “The law of indirect discrimination is an attempt to level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic … the resulting scrutiny may ultimately lead to the conclusion that the requirement can be justified. But if it cannot, then it can be modified so as to remove the disadvantage”.

[144]Paragraph 4.4. of the EHCR Code emphasises that four requirements must be met:a. the employer applies (or would apply) the provision, criterion or practice equally to everyone within the relevant group including a particular worker;

b. the provision, criterion or practice puts, or would put, people who share the worker’s protected characteristic at a particular disadvantage when compared with people who do not have that characteristic (“group disadvantage”);

c. the provision, criterion or practice puts, or would put, the worker at that disadvantage (“individual disadvantage”); and

d. the employer cannot show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.

[145]The burden of proof starts on a claimant. It is for the claimant to establish the first, second and third requirements. If these are satisfied, then it is for the respondent to justify the PCP as a proportionate means of achieving a legitimate aim. 146. ‘Disadvantage’ is a similar concept to ‘detriment’. ‘A disadvantage does not have to be quantifiable and the worker does not have to experience actual loss (economic or otherwise)’ (EHRC Code paragraph 4.9). There is no particular level or threshold of disadvantage required.

[147]The statutory language requires the Tribunal to identify a pool of workers which the PCP affects (or would affect) either positively or negatively, whilst excluding those who are not so affected.

[148]Paragraph 4.19 of the EHRC Code explains the nature of the comparison which must be carried out when analysing a complaint of indirect discrimination – “a comparison must be made between the impact of the provision, criterion or practice on people without the relevant protected characteristic, and its impact on people with the protected characteristic”.

[149]In Essop v Home Office (UK Border Agency)

[2017] IRLR 558

at paragraph 41, Lady Hale said this: “all the workers affected by the PCP in question should be considered. Then the comparison can be made between the impact of the PCP on the group with the relevant protected characteristic and its impact upon the group without it […] There is no warrant for including only some of the persons affected by the PCP for comparison purposes. In general, therefore, identifying the PCP will also identify the pool for comparison.”

[150]As to “group disadvantage”, the Claimants’ group is restricted to those who have the same disability, given the wording of Section 6(3) Equality Act 2010: “In relation to the protected characteristic of disability(a) A reference to a person who has a particular protected characteristic is a reference to persons who has a particular disability;

(b) A reference to persons who share a protected characteristic is a reference to persons who have the same disability.”

[151]The Tribunal must consider whether the group with the same disability is at a particular disadvantage when compared to the group without that disability.

[152]Paragraph 4.21 of the EHRC Code provides the following guidance as to the comparative exercise: “If the Employment Tribunal is asked to undertake a formal comparative exercise to decide an indirect discrimination claim, it can do this in a number of ways. One established approach involves the Employment Tribunal asking these questions:• What proportion of the pool has the particular protected characteristic?

• Within the pool, does the provision, criterion or practice affect workers without the protected characteristic?

• How many of these workers are (or would be) disadvantaged by it? How is this expressed as a proportion (‘x’)?

• Within the pool, how does the provision, criterion or practice affect people who share the protected characteristic?

• How many of these workers are (or would be) put at a disadvantage by it? How is this expressed as a proportion (‘y’)?”

[153]The Tribunal then compares (x) with (y) to determine whether group (y) experiences a particular disadvantage when compared with group (x).

[154]In relation to “individual disadvantage”, the claimant must prove that the PCP puts (or would put) him at “that disadvantage”. In other words, at the same disadvantage as those others who share the relevant characteristic.

[155]The Tribunal should apply the same approach to “objective justification” in an indirect discrimination claim as set out above in relation to a claim for discrimination arising from disability. CONCLUSIONS Constructive dismissal

CONCLUSIONS

[156]I deal with each of the events relied upon in paragraph 3.2 of the List of Issues in turn. Send the Claimant a letter stating she had been overpaid in October 2023 and/or fail to rectify this

[157]Although it was not included in the documents at the Final Hearing, I am satisfied that the Respondent did send the Claimant a letter in October 2023 stating that the Claimant had been overpaid. At that point, the Claimant had been overpaid. She had been paid full pay between 17 July 2023 and 31 August 2023 even though her entitlement to full sick pay had ended on 16 July 2023. It was appropriate to inform the Claimant of this overpayment and to invite the Claimant’s proposals about how this should be repaid. The letter did not pressurise the Claimant to repay the sums within a particular timescale.

[158]I accept that discussions about an employee’s pay and about the employee’s means to repay any overpayments should be confidential and not necessarily discussed in the first instance between a line manager and their direct reports. It was therefore appropriate for this letter to come from Payroll rather than from the Claimant’s line manager. It was still appropriate for Payroll to write to the Claimant even though she was on long term sick leave with depression that may have been linked to stress at work.

[159]The amount of the apparent overpayment recorded in this letter was higher than the actual overpayment. This is because during this period she had taken annual leave which should have been paid at full pay. However, there was still an overpayment that needed to be brought to the Claimant attention. Refuse to allow the Claimant to take holiday during her sickness absence

[160]There was no refusal to allow the Claimant to take holiday, at least until 19 March 2024. She had asked to take holiday in July, August, October, December 2023 and January 2024 and this had been recorded as holiday at the time. Therefore, this should ordinarily have been paid as holiday at full pay at the end of the month in which the annual leave was booked to be taken, so long as it was arranged before the relevant payroll cut-off date. I do not accept that there was an additional requirement, as the Respondent has contended, that the Claimant specifically ask to be paid in respect of that period of leave. This is not required on a fair reading of the policy.

[161]The holiday booked to be taken in August 2023 ought to have been paid in August 2023. Because the Claimant was paid full pay throughout August as a result of the payroll error, she was not in fact underpaid in this month – albeit it would have been incorrectly recorded on her payslip as sick pay rather than annual leave. The Claimant did not book any holiday during September 2023, so was not underpaid in September in receiving half pay throughout this month. The holiday which was booked in October was only requested retrospectively as a result of the Claimant’s email on 30 October 2023. This is likely to have been after the October payroll deadline. As a result, on the balance of probabilities, there was no underpayment in her October payslip.

[162]In relation to the holiday dates from 16 to 19 October and from 30 October 2023 to 2 November 2023, these had been requested on email rather than through the MaPs system. This was because the Claimant had been locked out of the MaPs system as a result of her long-term sick leave. In Ms Easy’s reply, she asked the Claimant to confirm she wanted to take those dates as annual leave. This was a reasonable request given the somewhat oblique way in which the Claimant had worded her 30 October 2023 email seeking holiday on these dates. The Claimant had not subsequently provided the confirmation sought. The Respondent would have been entitled to treat that holiday as unconfirmed, with the result that she was not entitled to be paid full pay for those dates. However, having chosen to treat the Claimant as on annual leave on these dates, the starting point was that this leave ought to have been paid at full pay.

[163]There is a further complexity in relation to payment for October 2023. The Claimant had not supplied a Fit Note for the period from 16 October 2023 onwards. Nor, as at 16 October 2023, had she requested the period as annual leave. Therefore, throughout the fortnight from 16 October 2023 to 30 October 2023 – when annual leave was first requested - the Claimant was absent without authority. An employee cannot expect to be paid during periods when they are absent without authority. In those circumstances, there is no basis to criticise the Claimant for failing to pay her in October 2023.

[164]So far as pay in November 2023 is concerned, this could have included full pay for the holiday which it appeared the Claimant had wanted to take from 16 to 20 October and from 30 October to 2 November 2023. However, because the period from 23 to 26 October and from 3 November 2023 to 30 November 2023 was still not covered by a fit note, the Respondent could have chosen to pay nothing whatsoever for absence not requested as annual leave on the basis it was unauthorised leave. In addition, by that point, the overpayment in July and August 2023 had been detected. During that July/August period, the Claimant had been paid for six twenty-hour weeks at full pay rather than half pay. Even if the claimant had been paid full pay for the proposed two twenty-hour weeks of annual leave; and also had been paid full pay for the two further weeks of annual leave booked in October, she had still been overpaid as at the end of November.

[165]In those circumstances, it was appropriate for the Payroll Team to invite the Claimant to ring or to email with her suggestions for how any overpayment could repaid. The letter of October 2023 had suggested the possibility of a repayment plan. For whatever reason, the Claimant did not contact Payroll to discuss this. In addition, there needed to be a discussion between the Claimant and the Respondent to clarify to what extent working days should be classified as annual leave, sick leave, or unauthorised leave.

[166]As a result, given the absence of any response from the Claimant, it was appropriate for Payroll to send another letter in December again politely encouraging her to discuss how the overpayment could be repaid. It seems that the Claimant was paid half pay for the period to 12 December 2023, even though she had not provided a certificate signing her off sick. Had this period been legitimately treated as unauthorised absence, no pay would have been due in December, apart from full pay for annual leave booked on 25 and 26 December 2023. Even by the end of December, a balance was still owing to the Respondent given the extent of the previous overpayment.

[167]Thus analysed, I do not consider that any failure to pay the Claimant for her annual leave over the period between August and December 2023 was a breach of contract, still less a fundamental breach of contract. As at the end of the year, she had been overpaid rather than underpaid. Thereafter she had exhausted her entitlement to sick pay and so was not entitled to receive any further sums in her future payslips.

[168]The first suggestion made that the Respondent may cancel the Claimant’s previously booked annual leave was made on 19 March 2024 [995], when Ms Easy wrote “I have also raised a MaPS ticket to remove the following dates of annual leave which were booked when you were on Long Term Sickness Absence.” But even here, the email recognised that annual leave could be taken to top up half pay and added “if it is the case that you were using annual leave to top up a half pay entitlement, then I’ll need to raise a MaPS request to advise them of this.”

[169]Even at this point, the Claimant was being asked to indicate if her annual leave was being taken to top up her half pay. It was therefore not unilaterally being withdrawn or refused. Send the Claimant a letter in March 2024 requesting a fit note and threatening her with disciplinary action

[170]It was reasonable for the Respondent to write to the Claimant in the terms that it did in March 2024. The Claimant had been absent without being covered by any sick certificate during the period from 16 October 2023 to 11 December 2023. This was a failure to comply with the clear requirements of the Respondent’s Policy. The Respondent had previously asked the Claimant to provide a Fit Note. That had not led to any engagement by the Claimant still less had the Claimant provided a Fit Note. Given the lack of response to previous letters on this topic, it was reasonable for the Respondent to refer to the possibility of disciplinary action if the Claimant continued to fail to provide a Fit Note for a period of around eight weeks of employment. Fail to resolve the grievance raised in October 2023 within a reasonable period

[171]The Claimant herself very fairly accepted in cross examination that the grievance outcome letter was sent to the Claimant within a reasonable period, given the complexity of the issues raised in the grievance. It was appropriate for a grievance investigator to be appointed. The investigator needed to be identified, terms of reference for the investigation needed to be agreed, and the investigator needed to arrange mutually convenient times to interview relevant employees, before compiling their investigation report. The period also included Christmas and New Year. No timescale was ever promised at any point for when the Claimant would be told the outcome of her grievance. No period of culpable delay has been identified during the grievance process. I am satisfied that both Ms Jean and Mr Turner undertook their respective roles thoroughly and without any significant delay. As a result, the duration of the grievance cannot be a factor contributing to a breach of the implied term of trust and confidence. Fail to implement recommendations within the grievance outcome within a reasonable period

[172]The recommendations made by Mr Turner by way of grievance outcome need to be viewed in the context of the outcome that the Claimant was seeking when lodging her grievance. This was expressed as “I would like to formally request that you complete the consultation on my role in the London service without further delay”. Mr Turner’s recommendations were therefore rather broader than the outcome that the Claimant was seeking – even though Mr Turner did not promise to “complete the consultation” on her role, as the Claimant had requested. The Claimant’s timescale was “without further delay”.

[173]So far as that timescale is concerned, the grievance outcome was issued to the Claimant on 20 February 2024. The Claimant argues that each recommendation was not implemented within a reasonable period.

[174]Where a grievance officer makes recommendations to a business area by way of grievance outcome, those recommendations need to be considered and accepted by the business area before they can start to be implemented. Here the recommendations were sent to the business on 27 February 2024, which was a reasonable timescale. Dr Henwood provided the Claimant with the Respondent’s initial response, having reviewed these recommendations on 7 March 2024. Again, that was reasonable.

[175]Mr Turner had advised the Claimant that they would inevitably take time to be implemented, particularly because he was suggesting that the business should consider extending the benefit of his recommendations to others who were in the Claimant’s situation. Looked at as a whole, I do not consider that had been a failure to implement the recommendations within the grievance outcome within a reasonable period by the time of the Claimant’s resignation on 22 March 2024, just over four weeks after the grievance outcome letter.

[176]I now briefly deal with each of the recommendations in turn. (a) Reviewing the Claimant’s job role and description and engaging the Claimant in these discussions.

[177]The actual recommendation was that a thorough review of her job role should begin and she should be engaged in these conversations. The process had begun and a meeting had been held with the Claimant on 22 March 2024 enabling her to engage with that review. The Claimant resigned on the day of a meeting with her to discuss her job role. This meeting was beginning of the engagement with the Claimant that Mr Turner had recommended. There was no failure to implement this recommendation within a reasonable period. (b) The review of internal communications and processes

[178]As described by Mr Turner, the purpose of the review of internal processes and communications was to ensure that lessons were learned from this case to prevent future incidents of this nature from occurring again. To be meaningful and to reflect the intention behind the recommendation, such a review would need to be thorough and involve several people. It could not be completed in a rush. I do not consider that a period of just over four weeks from the date on which the recommendations were set out in the grievance outcome document amounts in relation to this recommendation to a failure to implement the recommendation within a reasonable period. (c) Providing a formal apology

[179]Mr Turner accepted that no formal apology had been provided by the time of the Claimant’s resignation. To be meaningful, an apology needs to specify exactly what the Respondent is apologising for. That requires time and a recognition of where mistakes were made. It is perhaps significant that the recommendation of a formal apology was the third recommendation, after a review of the Respondent’s processes and a recognition of lessons learned. An apology was provided by Dr Henwood in her response of 7 March 2024. Even though it was not headed formal apology, it did acknowledge the detrimental impact on the Claimant’s wellbeing caused by the protracted process – which was the aspect of the apology emphasised in Mr Turner’s recommendations. Therefore, as a first response from the Respondent as an organisation, it did largely address what had been recommended. (d) A review of the London Laboratory service

[180]In relation to this recommendation, Mr Turner proposed that the business communicate a high-level view of likely timescales and milestones to the affected staff. In her response to the Claimant dated 7 March 2024, Dr Henwood said she hoped to be able to provide updates on the tender “in the coming weeks to confirm a high-level view of proposed next steps and timeframes”. This was promising exactly what was recommended and providing a timescale (“the coming weeks”) for when a timeframe potentially could be provided. It is unrealistic to think that Dr Henwood could have done more when she responded on 7 March 2024 and that any more detailed update could have been provided by the time of the Claimant’s resignation. Conclusion on breach of the implied term of mutual trust and confidence

[181]Neither individually or cumulatively the matters on which the Claimant relies did not amount to conduct which destroyed or seriously damaged the relationship of trust and confidence. Therefore, the Claimant’s constructive dismissal claim must fail. Discrimination arising from disability (Section 15 EqA 2010)

[182]I start by considering the various acts said to amount to unfavourable treatment because of something arising from disability, namely the Claimant’s sickness absence from the workplace.

[183]Sending the Claimant a letter stating she had been overpaid in October 2023. I have already found that this letter was sent to the Claimant in October 2023. The decision to send this letter was caused by the fact that there had been an overpayment of salary, which in turn was caused by those in the Payroll Team having an incorrect belief about the amount of time the Claimant had been absent on sick leave, which in turn was caused by the Claimant’s absence on sick leave.

[184]I find that sending the Claimant this letter was a proportionate means of achieving a legitimate aim. The Respondent’s aim was to comply with His Majesty’s Treasury Managing Public Money guidance. It aimed to protect public money by seeking to recoup any non-contractual payments to which the Claimant was not entitled. It was proportionate to send the Claimant a letter from the Payroll Team asking for the repayment of overpaid sums. The overpayment had been recorded in a payslip issued under the auspices of the Payroll Team. It was therefore proportionate for the same Team to write to the Claimant seeking to agree arrangements for repayment.

[185]Fail to respond to the Claimant’s queries regarding the overpayment within a reasonable period. I reject the Claimant’s contention that the Respondent failed to respond to the Claimant’s queries regarding the overpayment within a reasonable period. The Claimant raised her queries in her email to Ms Easy of 16 October 2023. Ms Easy responded to these queries in her email dated 23 October 2023. Even though Ms Easy’s response misunderstood the circumstances in which annual leave could be taken whilst on sick leave, it was still a response to the Claimant’s queries. It was sent within a reasonable period.

[186]Refuse to permit the Claimant to take holiday during her sickness absence on several occasions from September 2023. The Respondent did not refuse to permit the Claimant to take holiday during her sickness absence. The Claimant was recorded as on annual leave during dates in July, August and end October/early November as well as 25 and 26 December 2023 and 1 January 2024. Whilst her payslips did not record her as receiving pay for this period of leave, by the end of December 2023 she had still been overpaid by comparison to what she should have been paid if taking annual leave. It was only on 19 March 2024 that Ms Easy suggested her past annual leave might be cancelled. But even here, the Claimant was given the option to retain the leave if it was being taken to top up pay during periods of half pay.

[187]Send the Claimant a letter requiring her to submit a fit note and threatening her with disciplinary action on several occasions with the most latter one being on 19 March 2024. As the Respondent accepts, this arose in consequence of something arising from her disability, namely her sickness absence.

[188]Under the Supporting Attendance Policy, the Claimant was required to continuing providing fit notes to cover the period, normally within a week of the previous certificate expiring unless there are extenuating circumstances. The Claimant’s last fit note had expired on 8 October 2023. She had not identified any extenuating circumstances for failing to provide a further fit note thereafter. It was therefore appropriate to remind the Claimant of the terms of the policy and when no fit note was forthcoming many weeks after it was due; and also to refer to the possibility of disciplinary action - as the policy itself did.

[189]Ensuring compliance with the sickness reporting requirements to ensure absences are correctly recorded is a legitimate aim. It was a proportionate means of achieving that legitimate aim to write to the Claimant drawing her attention to the sickness reporting requirements and advising her of the consequences of not complying with those requirements, including the possibility of facing disciplinary action.

[190]Conclusion on Section 15 EqA: Therefore, each of the Claimant’s various allegations of discrimination arising from disability are not well founded. Failure to make reasonable adjustments (Section 20/21 EqA 2010)

[191]The proposed adjustments are set out in paragraph 5.5 of the List of Issues. I deal with each of them by analysing the alleged provisions, criteria and practices (PCPs) which are said to have put the Claimant at a substantial disadvantage.

[192]Having a meeting to discuss overpaymenta. PCP (Issue 5.1.1): The Respondent accepts that it had a practice of sending letters confirming if an overpayment was made, rather than notifying employees of this verbally.

b. Substantial disadvantage (Issue 5.3.1): The Claimant argues that receiving the news of the overpayment of wages by letter on 16 October 20231 exacerbated her mental health condition. This therefore she claims caused her to be at a substantial disadvantage in comparison to those who are not disabled who would have received the same letter. I do not accept she has established this substantial disadvantage on the evidence. At paragraph 30 of her witness statement, where the Claimant deals with the receipt of this letter, she does not suggest that receiving the news in written form caused her a substantial disadvantage in terms of her health. Rather it is hearing of the Respondent’s plans for the recovery of this overpayment (ie the substance rather than the format of the communication) which “added to my financial stress”.

c. Knowledge of substantial disadvantage: In any event, I do not accept that any such substantial disadvantage was known or ought to have been known by the Respondent. The Claimant had not previously suggested that her disability caused her to struggle with receiving news in written form such that she should receive important news face to face. It is not common knowledge that those on long term sick leave with mental health symptoms should receive important updates orally rather than in writing. Previous occupational health reports had not indicated that this was important in the Claimant’s case. 1 The List of Issues dates this letter as 21 October 2023, but nothing turns in the difference of date.

d. Proposed reasonable adjustment (Issue 5.5.2): Furthermore, arranging a meeting with the Claimant to discuss potential methods of repayment (as the Claimant now alleges should have been done) rather than initially notifying her of the overpayment in a letter from Payroll would not have been a reasonable adjustment. The Claimant could not prepare effectively for such a meeting without advance knowledge that there had been an overpayment. In addition, asking the Claimant to meet with her line manager to discuss her current financial circumstances would not have been reasonable given the need to respect her privacy. The letter that the Payroll Team sent to the Claimant was an appropriate way for the Respondent to raise the overpayment issue, particularly as the Claimant was at that point absent on long term sick leave. Had the Claimant responded by phoning the number or emailing the address suggested in the letter, this may well have led to a meeting being arranged with a member of the Payroll Team and others to discuss repayment. The Claimant never contacted the Payroll Team in response to this letter. As a result, the potential opportunity to arrange a suitable meeting was never progressed. This particular alleged failure to make a reasonable adjustment is therefore rejected.

[193]Issue 5.5.3 Meeting with the individual prior to setting out disciplinary warnings in connection with the provision of fit notes AND Issue 5.5.1 Conducting additional welfare calls/meetings on a regular basis.a. PCP (Issue 5.1.4): Both these alleged failures to make reasonable adjustments rely on the same PCP. The proper formulation of the applicable PCP is that the Respondent’s policy required employees on long-term sick leave to provide Fit Notes covering the entire period of sickness absence, even on those days taken as annual leave. Its policy warned employees that disciplinary action may be taken against those employees who failed to do this; and this warning of potential disciplinary action was drawn to their attention in writing where repeated requests for Fit Notes had not otherwise been heeded. Although there is no evidence how others were treated in equivalent circumstances, it is likely that they would be treated in the same way. That is that when requests for the necessary Fit Notes went unanswered, their attention would be drawn to the relevant parts of the policy and eventually they would receive a specific written warning about the possibility of disciplinary action. The relevant sections of the policy were drawn to the Claimant’s attention on 8 March 2024 and a letter was sent on 19 March 2024 warning about the prospect of disciplinary action against them.

b. Substantial disadvantage (Issue 5.3.4): The Claimant alleges she was placed at a substantial disadvantage in comparison with non-disabled employees when she was threatened with disciplinary action for failing to provide Fit Notes during periods of absence. Issue 5.3.4 describes this threat as taking place in the Claimant’s case on 19 March 2024. I accept that the Claimant has established she was at this substantial disadvantage as a result of PCP 5.1.4. Due to her heightened levels of anxiety, she was less able to focus on the need to provide ongoing Fit Notes. As she wrote to Ms Easy on 19 February 2024, “I hadn't realised my certificate ran out last Tuesday. It was very stressful with the grievance procedure last week”.

c. Knowledge of substantial disadvantage: I accept that the Respondent knew or ought to have known of this substantial disadvantage, in providing continuous fit notes during periods of absence, at least from 19 February 2024 onwards, given the wording of the Claimant’s email. However, I do not accept that the Respondent knew or should have known of this substantial disadvantage before that point, given that it had not previously been raised by the Claimant and had not featured in any occupational health advice. The mere fact that the Claimant was absent on long-term sick leave with a mental health condition and had previously failed to provide a Fit Note for the period from 16 October 2023 to 11 December 2023, was not sufficient to have given the Respondent constructive knowledge of this substantial disadvantage.

d. Therefore, given the date of the Respondent’s actual or constructive knowledge, the duty to make reasonable adjustments was only engaged from 19 February 2024 onwards.

e. Proposed reasonable adjustments: In the particular circumstances, I do not find that there was a failure to make reasonable adjustments in not “meeting with the individual prior to setting out disciplinary warnings” (Issue 5.5.3); or “failing to conduct additional welfare calls/meetings” (Issue 5.5.1) in the limited period from 19 February 2024 onwards. In assessing this, the context is important. The Claimant had previously been asked in writing to provide Fit Notes in relation to the period from 16 October to 11 December 2023 both on 23 October 2023 and again on 21 December 2023. The latter communication warned her that this period would be treated as unauthorised absence unless Fit Notes were provided. The 21 December 2023 letter suggested that the Claimant and Ms Easy should have a catch up every 10 days. They had spoken on 8 January 2024 and this discussion could have been used to discuss the Fit Note position. They did not speak again until 13 March 2024. In the meantime, an occupational health report (sent on 18 January 2024) had indicated that a return to work was unlikely until the grievance was resolved. The grievance outcome letter was issued on 20 February 2024. Ms Easy was herself absent on sick leave from 20 February until 6 March 2024, thereafter returning on a phased return. This would have inevitably prevented her from meeting with the Claimant during this period. Ms Easy’s email of 8 March 2024 apologised for the delay in replying as she had been away. It was a response to the Claimant’s own email of 19 February 2024 and it was appropriate for that response to be in email form. The Claimant and Ms Easy spoke again on 13 March 2024. I have found that they are likely to have discussed in the 13 March 2024 discussion the missing fit notes and the potential consequences if they were not provided. By this point, the necessary fit notes were several months overdue. Therefore, this discussion with the Claimant preceded the 19 March 2024 letter titled “Unauthorised Absence” of which the Claimant complains. Given the potential seriousness for the Claimant of instigating disciplinary action, it was appropriate for this prospect to be recorded in writing. In any event, there is no medical or occupational health evidence indicating that the Claimant’s mental health condition meant she would not cope well receiving news of potential disciplinary action verbally rather than in writing. She had shown a marked reluctance during her time on long term sick leave to speak to Ms Easy rather than communicate by email. She had not asked for communications to be oral rather than in writing. It was the prospect of disciplinary action rather than the means by which this was communicated that was stressful to the Claimant.

[194]Permitting disabled employees to take holidays during periods of sickness absence. The final reasonable adjustment that the Claimant argues the Respondent failed to take is that disabled employees should have been permitted to take holidays during periods of sickness absence (Issue 5.5.4). As already explained above, the Claimant was permitted to take holidays during periods of sickness absence. Therefore, this allegation must fail. Indirect disability discrimination

[195]The Respondent concedes that it had the two practices alleged at issues4.1.1 and 4.1.4. It disputes the two practices alleged at issues

4.1.2 and 4.1.3. I find that the Respondent did not have a practice of not responding to queries regarding overpayment letters (4.1.2) nor did it have the practice of not permitting employees to take holiday during periods of sickness absence (4.1.3). I do not accept that this was how the Claimant was treated or that this was a general practice.

[196]The practice at issue 4.1.1 (sending letters confirming if an overpayment has been made, rather than raising this verbally) was applied to the Claimant. She was sent a letter on 21 October 2023 notifying her that she had been overpaid in relation to the period from July to August 2023. The same practice would have been applied to persons who do not share the Claimant’s disability. However, I do not accept that this practice placed the Claimant at a particular disadvantage. Nor do I accept that it placed persons with whom the Claimant shared her disability (anxiety and panic attacks) at a particular disadvantage in comparison to persons who do not share the Claimant’s disability. There is no evidence of group disadvantage. Nor has there been any identification of an appropriate pool for establishing group disadvantage. Therefore, the indirect discrimination complaint based on this PCP must fail.

[197]The practice of warning employees that failing to provide a fit note in connection with their sickness absence may result in disciplinary action (issue 4.1.4) was applied to the Claimant. On 19 March 2024, the Claimant was sent a letter warning her that she may face disciplinary action if she did not provide a fit note. I accept based on the evidence provided by the Claimant that this practice placed her, as someone suffering from her particular anxiety and panic attacks, at a particular disadvantage in that she found it particularly stressful to be warned of the possibility of disciplinary action and that this was a consequence of her particular disability. However, I do not accept that this practice placed persons with whom the Claimant shared her disability of anxiety and panic attacks at a particular disadvantage in comparison to persons who did not share the Claimant’s disability. The comparison is between the disadvantage for all those who have failed to provide a fit note for periods of absence who are told of the possibility of disciplinary action; and the specific disadvantage for those who share the Claimant’s disability of anxiety and panic attacks. It is likely to be stressful for any employee who has not provided fit notes for periods of absence to be told that this may result in disciplinary action. In the absence of any specific medical evidence, I cannot assume that those with anxiety and panic attacks are likely to be placed at a particular disadvantage when receiving such a warning. There is no evidence of group disadvantage here. Therefore, the indirect discrimination complaint based on this PCP must also fail.

[198]As a result, it is not necessary for me to decide whether the Claimant’s treatment was a proportionate means of achieving a legitimate aim. Time limits

[199]Because I have found that none of the Claimant’s complaints succeed on their merits, it is not necessary for me to decide whether the Tribunal would have had jurisdiction to award a remedy in relation to particular allegations, given the application of statutory time limits.

Conclusion

[200]For the reasons explained above, none of the Claimant’s complaints are well founded. They must therefore be dismissed. Employment Judge Gardiner Dated: 27 February 2026 APPENDIX 1 – LIST OF ISSUES PRELIMINARY ISSUES

Conclusion

[1]Jurisdiction1.1 Were all of the Claimant’s complaints presented within time?

1.2 If not, do they form part of a continuing act, taken together with acts which are in time? If so, was the claim made to the tribunal within three months (plus early conciliation extension) of the end of that period?

1.3 if not, is it just and equitable in all of the circumstances to extend time? (s123(1)(a) and (b) EqA 2010)

[2]Disability2.1 The parties accept that the Claimant was disabled as defined in s. 6 of the EqA 2010 by reason of anxiety and panic attacks at the Material Time (between September 2023 and March 2024).

2.2 It is also accepted that the Respondent ought reasonably to have knowledge of the Claimant’s disabilities at the Material Time. SUBSTANTIVE ISSUES

[3]Constructive Unfair Dismissal (Pursuant to section 95 ERA)3.1 Was the Claimant dismissed?

3.2 Did the Respondent do the following things:3.2.1 Send the Claimant a letter stating she had been overpaid in October 2023 and/or fail to rectify this;

3.2.2 Refuse to allow the Claimant to take holiday during her sickness absence;

3.2.3 Send the Claimant a letter in March 2024 requesting a fit note and threatening her with disciplinary action;

3.2.4 Fail to resolve the grievance raised in October 2023 within a reasonable period;

3.2.5 Fail to implement recommendations within the grievance outcome within a reasonable period. Specifically: -3.2.5.1 Reviewing the Claimant’s job role and description and engaging the Claimant in these discussions;

3.2.5.2 The review of internal communications and processes;

3.2.5.3 Providing a formal apology; and

3.2.5.4 A review of the London Laboratory Service.

3.3 Did any treatment at 3.2, taken individually or cumulatively, that breach the implied term of trust and confidence. Specifically: -

3.3.1.1 Did the Respondent behave in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent?; and

3.3.1.2 Did it have a reasonable and proper cause for doing so? 3.3.2 If there was any such breach, was it a fundamental one? Was the breach sufficiently serious to entitle the Claimant to terminate the contract of employment? 3.3.3 Did the Claimant resign in response to the breach? 3.3.4 Did the Claimant affirm the contract before resigning? 3.3.5 If the Claimant was dismissed, what was the principal reason for dismissal (i.e. what was the reason for breach of contract)?

3.4 Was it a potentially fair reason?

3.5 Did the Respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the Claimant?

[4]Indirect discrimination (pursuant to section 19 EqA)4.1 A “PCP” is a provision, criterion or practice. Are the following PCPs, and if yes did the Respondent have the following PCP(s)? Specifically,4.1.1 the practice of sending letters confirming if an overpayment is made;

4.1.2 the practice of not responding to queries regarding overpayment letters;

4.1.3 the practice of not permitting employees to take holiday during periods of sickness absence;

4.1.4 the practice of warning employees that failing to provide a fit note in connection with their sickness absence may result in disciplinary action;

4.2 Did the Respondent apply the PCP(s) to the Claimant?

4.3 Did the Respondent apply the PCP(s) to persons who do not share the Claimant’s disability, or would it have done so?

4.4 Did the PCP(s) place persons with whom the Claimant shares their disability at a particular disadvantage in comparison with persons who do not share the Claimant’s disability?

4.5 What is/are the particular disadvantage(s) the Claimant relies upon?4.5.1 The Claimant was sent a letter relating to an overpayment of her wages on 21 October 2023. This exacerbated the Claimant’s disability;

4.5.2 The Respondent failed to resolve the overpayment issues when the Claimant queried the issues regarding the overpayment on or around 21 October 2023. This exacerbated the Claimant’s disability;

4.5.3 The Claimant was refused to take holiday leave on 19 March 2024 during periods of sickness absence for the dates of 7-17 August 2023, 21-24 August 2023, 28 August 2023, 16-19 October 2023, 30 October – 2 November 2023, 25-26 December 2023 and 1 January 2024. This exacerbated the Claimant’s disability.

4.5.4 On 19 March 2024 the Claimant was threatened by the Respondent with disciplinary action in respect of providing a fit note. This exacerbated the Claimant’s disability.

4.6 Did the PCP(s) in fact put the Claimant at that/those particular disadvantage(s)?

4.7 Can the Respondent show that this treatment was a proportionate means of achieving a legitimate aim? The Respondent says that 4.1.2 and 4.1.3 above are not PCPs it operates. In respect of the remaining PCPs the Respondent’s legitimate aim(s) were:

• Regarding the alleged PCP at 4.1.1 above – Compliance with HMT Managing Public Money and protecting public money by seeking to recoup any noncontractual payments to which the Claimant was not entitled (i.e. recovery of overpayments)

• Regarding the alleged PCP at 4.1.4 above – Ensuring compliance with sickness reporting requirements to ensure absences are correctly recorded and/or applying the Respondent’s absence management policies, ensuring that the Respondent’s employees attend work regularly and consistently.

4.8 Was the treatment an appropriate and reasonably necessary way to achieve those aims?

4.9 Could something less discriminatory have been done instead?

4.10 How should the needs of the Claimant and the Respondent be balanced?

[5]Failure to make reasonable adjustments (Pursuant to section 20 EqA)5.1 A “PCP” is a provision, criterion or practice. Are the following PCPs, and if yes did the Respondent have the following PCP(s)?:5.1.1 the practice of sending letters confirming if an overpayment is made;

5.1.2 the practice of not responding to queries regarding overpayment letters;

5.1.3 the practice of not permitting employees to take holiday during periods of sickness absence;

5.1.4 the practice of warning employees that fail to provide a fit note in connection with their sickness absence that they may face disciplinary action;

5.2 Did the PCP(s) place the Claimant at a substantial disadvantage compared with persons without the Claimant’s disability?

5.3 What is/are the particular disadvantage(s) the Claimant relies upon?5.3.1 The Claimant was sent a letter relating to an overpayment of her wages on 21 October 2023. This exacerbated the Claimant’s disability;

5.3.2 The Respondent failed to resolve the overpayment issues when the Claimant queried the issues regarding the overpayment on or around 21 October 2023. This exacerbated the Claimant’s disability;

5.3.3 The Claimant was refused to take holiday leave on 19 March 2024 during periods of sickness absence for the dates of 7-17 August 2023, 21-24 August 2023, 28 August 2023, 16-19 October 2023, 30 October – 2 November 2023, 25-26 December 2023 and 1 January 2024. This exacerbated the Claimant’s disability.

5.3.4 The Claimant was threatened by the Respondent with disciplinary action on 19 March 2024 in respect of providing a fit note. This exacerbated the Claimant’s disability.

5.4 If so, did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at that substantial disadvantage at the relevant time?

5.5 What steps could have been taken to avoid the substantial disadvantage? The Claimant claims that the Respondent failed to make the following adjustments:5.5.1 Conducting additional welfare calls/meetings on a regular basis (PCP 5.1.4);

5.5.2 Having a meeting to discuss potential issues of overpayment in connection with periods of sickness absence to discuss potential methods of repayment (PCP 5.1.2);

5.5.3 In cases of long-term sickness absence or where the individual is known to be disabled, meeting with the individual prior to setting out disciplinary warnings in connection with the provision of fit notes (PCP 5.1.4);

5.5.4 Permitting disabled employees to take holidays during periods of sickness absence (PCP 5.1.3);

5.5.5 [Withdrawn]

5.5.6 [Withdrawn]

5.6 Was it reasonable for the Respondent to have to make those adjustments?

[6]Discrimination arising from disability (Pursuant to section 15 EqA)6.1 Did the Respondent do the following things: -6.1.1 Send the Claimant a letter stating she had been overpaid in October 2023;

6.1.2 Fail to respond to the Claimant’s queries regarding the overpayment within a reasonable period;

6.1.3 Refuse to permit the Claimant to take holiday during her sickness absence on several occasions from September 2023;

6.1.4 Send the Claimant a letter requiring her to submit a fit note and threatening her with disciplinary action on several occasions with the most latter one being on 19th March 2024; and

6.1.5 [Withdrawn]

6.2 If so, was this unfavourable treatment?

6.3 Was this unfavourable treatment because of something arising in consequence of the Claimant’s disability? The Claimant says the “something arising” was her sickness absence from the workplace.

6.4 Can the Respondent show that the treatment was a proportionate means of achieving a legitimate aim? The Respondent denies that either the acts/omissions in 6.1.2, 6.1.3, and 6.1.5 occurred as alleged or that they arose in consequence of her disability. In respect of the other allegations, to the extent they occurred, the Respondent says that the legitimate aim(s) were:

• Compliance with HMT Managing Public Money and protecting public money by seeking to recoup any non-contractual payments to which the Claimant was not entitled (i.e. recovery of overpayments)

• Ensuring compliance with sickness reporting requirements to ensure absences are correctly recorded and/or applying the Respondent’s absence management policies ensuring that the Respondent’s employees attend work regularly and consistently.

6.5 Was the treatment an appropriate and reasonably necessary way to achieve those aims?

6.6 Could something less discriminatory have been done instead?

6.7 How should the needs of the Claimant and the Respondent be balanced?

6.8 Did the Respondent know, or could it reasonably have been expected to know that the Claimant had a disability at the relevant time?

[7]Remedy for unfair dismissal7.1 If there is a compensatory award, how much should it be? The Tribunal will decide:7.1.1 What financial losses has the dismissal caused the Claimant?

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

7.1.3 If not, for what period of loss should the Claimant be compensated?

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

7.1.5 If so, should the Claimant’s compensation be reduced? By how much?

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

7.1.7 Did the Respondent or the Claimant unreasonably fail to comply with it?

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

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

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

7.1.11 Does the statutory cap of 52 weeks’ pay or £105, 707 for dismissals before 6 April 2024 apply?

7.2 What basic award is payable to the Claimant, if any?

7.3 Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent?

[8]Remedy for discrimination8.1 Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?

8.2 What financial losses has the discrimination caused the Claimant?

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

8.4 If not, for what period of loss should the Claimant be compensated?

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

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

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

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

8.9 Did the Respondent or the Claimant unreasonably fail to comply with it?

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

8.11 By what proportion, up to 25%?

8.12 Should interest be awarded? How much?