Miss J Klonowska–Socha v Falck UK Ambulance Services Ltd: 3201445/2019

EMPLOYMENT TRIBUNALS

Case No 3201445/2019

Between

Miss J Klonowska–SochaClaimant

Falck UK Ambulance Services LtdRespondent

Before

Employment Judge Speker, OBE DL

Members

Mrs M Legg

Mr L Bowman

In person for claimant

Ms M Stanley (instructed by Counsel) for respondent

Date 7 February 2024

JUDGMENT

The unanimous judgment of the Tribunal is that the claim of direct discrimination on the grounds of disability has not been established and accordingly the claim is dismissed. JUDGMENT having been sent to the parties on 24 August 2020 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013.

REASONS

[1]This is a case of alleged disability discrimination brought by Joanna KlonowskaSocha against Falck UK Ambulance Services Limited. We have heard evidence over three days and have been provided with a bundle of documents running to more than 400 pages. The Claimant gave evidence on her own behalf and referred to various documents. The Respondent called two witnesses namely Sarah Brewer, Head of Workforce Planning and Liz Fancy, HR Director. The Respondent’s two witnesses gave evidence by videolink.

[2]At a Preliminary Hearing on 16 September 2019 when both parties were legally represented the issues in the case were agreed. There was an initial section referring to whether the Claimant was a disabled person within the meaning of Section 6 of the Equality Act 2010. However, this is not an issue in the case because subsequently the Respondent conceded disability. Therefore the remaining issues in the case are as follows. 1.1. Direct discrimination (disability) Section 13 of the Equality Act 2010. 1.2. Was the Claimant subjected to the following treatment;(a) Sarah Brewer failed to respond to the Claimant’s email sent on or around 17 January 2019 informing Ms Brewer of the Claimant’s condition (despite the Claimant’s request for a response);

(b) At a meeting around the end of January 2019 Sarah told the Claimant; (i) That she would not accept her GP’s medical note; and (ii) asked the Claimant if she was not physically but mentally ill;

(c) On or around 1 February 2019 Sarah Brewer dismissed the Claimant. 1.3. If so, was this less favourable treatment on the grounds of the Claimant’s own disability. The Claimant relies on a hypothetical comparator in respect of each allegation of discrimination. There were also included in the list of issues some time points as to whether some of the acts complained of took place more than three months before the presentation of the claim form ET1 and this was a further matter to be considered by this Tribunal. Finding of Facts 2. We find the following facts from the evidence heard. 2.1. The Respondent is a national company providing emergency and non-emergency transport services on contract with various health organisations. The company has approximately 500 staff. 2.2. On 25 July 2018 the Claimant signed and agreed to a contract to commence on 30 July 2018 as a workforce planner. She was based at the company’s head office in Bow. Her duties involved planning of work rotas for staff to be provided to contractors as well as processing data to provide shifts and ensure that the needs of contractors’ customers were readily and reasonably met. She was part of a team. Her contract was subject to a six months probationary period during which she was to be monitored and appraised. 2.3. She was appointed by Simon Rolton who was her line manager. The Claimant maintained that he found her performance satisfactory but there was no evidence provided by the claimant or the company to support this. The Claimant was diagnosed with Lymes disease in 2016 and then babesiosis in September 2018. Although the Claimant stated that Simon Rolton was informed of these, there was no record in the company’s documentation to this effect and this was not included in her application for employment although it did refer to a difficulty in dealing with written material. In October 2018 she informed Simon Rolton of a need to travel fairly regularly to Poland for the purposes of receiving treatment which appeared to relate to a skin condition. 2.3 In mid-December 2018 there was a restructuring in the company and Simon Rolton’s level of management was removed. From them Sarah Brewer, Head of Welfare and Workforce Planning, became the Claimant’s line manager and the Claimant reported to her. 2.4 In November 2018 a new workforce planning system was introduced to replace Snowdrop the previous system. The new system was called Quintiq and it went live on 12 November 2018. There was an issue in the case as to the Claimant’s receipt of relevant training on Quintiq. It was agreed that she did have some training but she alleged that she had had to press for this and that it was less than she should have had, particularly with regard to dealing with overtime. 2.5 From 24 December 2018 to 14 January 2019 the Claimant was on sick leave. On her return she produced a medical document to Sarah Brewer. There was an issue in the case as to Sarah Brewer’s attitude towards this. The Claimant maintained that Sarah Brewer would not accept it and had suggested that it was in Polish whereas Sarah Brewer said that this was a matter to be dealt with by payroll and not by her and this was what in fact happened. 2.6 On 23 January 2019 there was a return to work interview of the Claimant held by Sarah Brewer in accordance with the company’s processes and using its meeting template. Reference was made at that time to the Claimant having physiotherapy for achilles tenderness. Sarah Brewer referred to a diagnosis of Lyme’s disease in September. It was also noted that the Claimant had had what was regarded as a high number of absences. At the end of the return to work form Sarah Brewer wrote as follows: “I have informed her that due to the absences she will be invited to a probationary review meeting with HR” 2.7 This referred to earlier content in the form suggesting that Sarah Brewer had concerns regarding the high number of absences. At the return to work interview the absences were looked at under the Bradford score document which was a new process introduced by the company only that month. 2.8 A number of issues about the Claimant had arisen around this time with regard to her performance which included a substantial number of errors and alterations required in respect of the inputting of overtime. In advance of the review meeting Sarah Brewer collated documentation with regard to various aspects of the Claimant’s performance. 2.9 On 30 January 2019 Sarah Brewer emailed a letter to the Claimant inviting her to a probationary review meeting at 2.00pm, two days later on 1 February 2019 to be held at the Bow Ambulance Station. The Claimant was told that she could bring a colleague or a trade union officer. She was not given any advance notice of the matters to be raised or discussed other than her knowledge from the return to work meeting that the absences had occasioned to the review. 2.10 In error, Sarah Brewer was led to believe that the Claimant’s six months probationary period would end on 28 February 2019 whereas the true position was that it was due to end on 30 January 2019. Accordingly, as at the date of the review meeting on 1 February 2019, the six months probationary period had already ended. 2.11 At the meeting, minutes were taken by Fiona Worrell from HR. No mention at all was made of the absences previously discussed. Sarah Brewer stated that she had decided not to raise this matter as she intended to concentrate on performance issues and put these to the Claimant. 2.12 A probationary assessment form was utilised at this meeting and on that form there were set out seven areas of stated concerns regarding the Claimant’s performance which are summarised as follows: Following procedures/management instructions. Sending an email inappropriately to SECAMB.

[3]Failing to follow instructions for copying in a further email to other personnel.

[4]Indicating a willingness to approve a holiday without authority.

[5]Conflict as to instructions allegedly given by David Harris.

[6]Incorrect record-keeping regarding “ghost shifts”.

[7]Allege rude and discourteous attitude in feedback from another office. 2.13 The Tribunal heard very detailed evidence with regard to all of these aspects indicating the basis upon which Sarah Brewer had heard or received this information and what she made of it and the Claimant challenging each of these allegations and pointing in many cases to other documentation which she maintained cast doubt upon or fully answered the matters which were raised. 2.14 At the probationary review meeting these matters were all discussed and minutes were taken. At the meeting the Claimant disputed each allegation against her and endeavoured to put her case in each respect. Sarah Brewer pointed to the assessment which was part of the form on page 314 of the bundle and the markings which she had given. This indicated that the claimant scored ‘poor’ in four categories namely; quality of work, performance, communication and attitude. She had been marked ‘fair’ in attendance, team work and general conduct and she had scored ‘good’ in relation to timekeeping. As a result of the meeting and the comments raised by the Claimant there was no alteration in the markings or scores which were given to the Claimant. Sarah Brewer informed the Claimant that the probationary period had not been successful that the Claimant had not passed and that her employment was being terminated. She was to be given one week’s notice which she was not required to work. The Claimant had not countersigned the assessment form. She was upset at what she was told and commented as in the minutes that there was a problem with her management by Sarah Brewer who was often not at work. The Claimant said that things had been fine when she had been managed by Simon. 2.15 On 7 February an outcome letter was sent to the Claimant under the signature of Fiona Worrell which stated that the company had taken the decision to terminate her employment for the following reasons: i Failure to follow procedure/management instruction. ii Concern regarding honesty and integrity. iii Incorrect record keeping/administration. 2.16 The Claimant was informed of her right to appeal. 2.17 By a letter of 14 February 2019 the Claimant lodged an appeal in what was a detailed letter which contested the performance issues but did not mention discrimination or any aspect of it. 2.18 The appeal was head by Peter Febia and Urven Lichovia on 8 April 2019. After that meeting the Claimant emailed Peter Febia and HR on 10 April raising certain further issues partly to do with what she said was unfairness and stress with regard to the appeal. This included the fact that her colleague who had accompanied her was asked to leave. There is no evidence that any reply was sent to the Claimant or indeed that there was outcome letter as to the appeal. Submissions 3. On behalf of the Respondent, Ms Stanley produced detailed written submissions which she supplemented by oral representations. She averred that the Tribunal should direct its attention to this being a direct discrimination case under Section 13 of the Equality Act 2010 as is set out in the statement of issues and specifically is not a claim under Section 15 of the Equality Act 2010 namely discrimination arising from disability. She submitted that the claim could only succeed if Sarah Brewer had knowledge of disability and in relation to the dismissal that this was the reason for it ending. She commented that this was specifically not an unfair dismissal claim and that performance was a genuine reason and that the Tribunal should not infer any discrimination from issues as to the process. The Respondent’s case was that Sarah Brewer had evidence to support the performance issues and that she had relied upon these and that there was no evidence to support the suggestion that discrimination was the cause or contributor. She further said that the appropriate comparator was a person who was not disabled who had the same service performance issues as the Claimant and would have been dismissed. 4. The Claimant submitted that her dismissal had had a significant impact upon her and she thanked the Tribunal for its patience in the hearing of the case and making allowances for the fact that English is not her first language. She mentioned that she had been placed under considerable stress and that Sarah Brewer as her manager had not responded to her cries for support, assistance or training. She denied that her performance justified her dismissal. The Law 5. Equality Act 2010 s13: direct discrimination a person A discriminates against another B if because of a protected characteristic A treats B less favourably than A treats or would treat others. s13(3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B. Findings 6. We have heard detailed evidence particularly as to the performance issues which were the matters raised at the review meeting on 1 February 2019. Sarah Brewer suggests that these were the reason for the Claimant’s dismissal. The Claimant challenges this and says that they were not the genuine reason and that she was dismissed because of her disability. We have borne specifically in mind that this is not an unfair dismissal claim and that the Claimant could not bring a claim of unfair dismissal because she did not have the requisite two years qualifying service. Therefore, it is not our role to look at the fairness or otherwise of the termination of employment or the fairness of the procedures adopted. We do note that in the contract it is specifically stated that the procedure for ending the probationary period and not reviewing the employment need not comply with the company’s disciplinary procedures. In considering this application we are confined by the law which applies in this case and by the issues agreed at the Preliminary Hearing and identified to us. Accordingly, the test for us to determine whether there has been direct discrimination, namely whether the Claimant was discriminated against because of her disability. That is the protected characteristic in this case. The question is: was she treated less favourably by the Respondent than it would have treated others. Was it, as Sarah Brewer maintains, performance, or was it because of the Claimant’s disability? Much was made of the Claimant’s absences when discussed at the return to work interview and how this was to lead to the probationary review meeting. However, for the Claimant to be able to argue a case based upon absences, this claim should have been brought under Section 15 of the Equality Act 2010 under the heading Discrimination Arising from Disability. The test under that section is as follows: “(1)a person A discriminates against a disabled person B if A treats B unfavourably because of something arising in consequence of B’s disability; and B cannot show that the treatment is a proportionate means of achieving a legitimate aim”. 7. The crucial wording in that section are “because of something arising in consequence of B’s disability”. With regard to Section 13 the wording relates to discriminating or treating less favourably because of the protected characteristic, namely disability. As this case has been expressly stated to be under Section 13 and not Section 15, it is not open to us to consider such a case or to express any view as to prospects of success of such a claim if it had been brought on that basis. The issue is before us is strictly under Section 13 which requires us to decide if dismissal was the treatment less favourable and was because of the protected characteristic namely disability. Having considered all of the evidence we do not find that the Claimant was dismissed by Sarah Brewer because of her disability.

Findings

[8]With regard to what I can describe as the subsidiary issues in the list of issues, we similarly do not find any convincing evidence that Sarah Brewer was actuated by discrimination or that it was the reason for the actions or inaction alleged against her with regards to those points. These are the issues where strictly speaking they are out of the three months’ time limit. We have considered the question whether we should extend the time limit under our statutory discretion and we find that it is just and equitable to do so on the basis that these matters were very narrowly out of time, that the Claimant was unrepresented at that stage and that she was hampered by a lack of familiarity with the processes and practices under English law. However as stated we have not found in the Claimant’s favour on the merits of those aspects of the case. Our unanimous conclusion therefore is that we find that legally this claim of direct discrimination under Section 13 of the Equality Act 2010 is not made out and accordingly the claim is dismissed.

[9]We do consider it appropriate to comment as to some aspects of the treatment of the Claimant notwithstanding that we are not dealing with an unfair dismissal case but by way of assistance to the Respondent and to reassure the Claimant that we have listened to all aspects of her case. There were various respects which caused us concern even though they do not produce a favourable outcome for the Claimant and these are set out in the next paragraph.

[10]The Respondent failed to keep proper records of training; absence of monitoring records in respect of the Claimant’s probationary period; the Respondent’s confusion as to the start and end dates of the Claimant’s probationary; informing the Claimant that she would be subject to a review meeting as to her absence record and then not referring to this at all or giving an explanation of this to the Claimant; the lack of notification to the Claimant of any of the matters which were to be discussed in detail at the review meeting leading to the termination of her employment; the absence of an outcome letter following the Claimant’s appeal and the lack of any response to her email.

[11]As stated these matters do not affect the outcome of the case which on the legal grounds outlined has been dismissed.

Introduction

[1]The claimant presented complaints of direct disability discrimination, wrongful dismissal, and breach of contract (notice pay) on 30 May 2019, which the respondent resisted.

[2]We noted that Employment Judge Jones had dismissed the complaint of wrongful dismissal/breach of contract (notice pay) on 16 October 2019. The claimant advised that she created her ET1 Form without any assistance and she was supposed to be paid one month’s notice pay, but she was dismissed before her notice period concluded. The claimant was advised that the claimant needed to apply for reconsideration or appeal if she wished to challenge Employment Judge Jones’s dismissal of those complaints (no appeal or reconsideration application was made).

[3]The claimant’s remaining claim is direct disability discrimination.

[4]The Final Hearing in this case took place on 24, 25, 26, 27 and 30 October 2023. This was a Hearing conducted in person at the London East Employment Tribunal. The Tribunal on the first day of the hearing comprised the Employment Judge, Ms J Houzer (Tribunal Member), and Mr L Bowman (Tribunal Member).

[5]The claimant and the respondent were advised that having read the ET1 and ET3, the Employment Judge noted that he carried out some work when he worked in practice for the respondent’s solicitors, although the Employment Judge never worked directly with Ms Marina Vincent (the fee earner in this case), he worked with a different partner and he had worked on non-employment law cases. The Employment Judge advised that taking account the relevant authorities he was satisfied that this did not affect his ability to preside over the claimant’s case, and thereafter, parties were invited to raise any objections, or to make any applications for the judge to recuse himself, or to indicate whether they were content to consent to the Employment Judge hearing the matter (the latter meaning that they lose their right to object). Parties were given an opportunity to reflect in line with the guidance set out in Jones v DAS Legal Expenses Insurance Co.

[2003] EWCA Civ 1071

at [35].

[6]The claimant advised that she did not know how the Employment Judge would cope with this, that it was strange, but that the final decision depended on the Employment Judge. The respondent’s representative advised that they did not object (but as the case had been appealed previously to the Employment Appeal Tribunal (“EAT”) they asked if it could be moved to another panel member). The claimant supported this suggestion and although she said she did not know the legal position; she did not want to see any conflict making the case more complicated. The Tribunal retired to consider whether to continue to hear the claimant’s claim, or alternatively, whether to recuse themselves.

[7]After an adjournment, the Tribunal advised parties that they had considered parties’ oral representations in relation to the Employment Judge presiding over the claimant’s case. Although the claimant did not object, she stated that she did not know how to proceed and she had concerns about any conflict with a previous coworker (and she did not understand how that would work with respect to British law). The respondent’s representative did not object. They referred to an application to transfer the case to a different Tribunal region. We noted from the case file that Employment Judge Jones declined to grant the application to transfer the case to another region. In any event, we did not see any grounds to move the case to a different Tribunal within the London East region or outside the London East region.

[8]We decided not to recuse ourselves. The legal test we applied is ‘whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased’ (Porter v Magill

[2002] 2 AC 357

). This was developed in Helow v Secretary of State for the Home Department

[2008] 1 WLR 2416

. We considered in particular paragraph 25 of the Court of Appeal Judgment at page 480 of Locabail v Bayfield Properties Ltd

[2000] QB 451

[9]Accordingly, we were satisfied that a fair minded and informed observer would not conclude that having considered the factual circumstances that that there was a real possibility that the judge was biased. We took into account that the Employment Judge worked on non-employment law related cases with Harold Benjamin Solicitors, with a different partner of the practice and that he had not been carrying out any legal practice work for some period. We also considered the role of Ms Vincent in the case. She was the partner with responsibility for the conduct of the case named in the respondent’s ET3 Form, and she attended the Hearing before us to represent the respondent on the first day (during which we discussed preliminary matters, including documents we were required to read). Thereafter, from the second day of the Hearing, the respondent were represented by counsel at the Hearing (Ms Vincent accompanied counsel as instructing solicitor). We do not consider that those circumstances gave rise to a real danger or to a real possibility of bias.

[10]Thereafter, we noted that the Tribunal were provided with a copy of a Hearing Bundle consisting of 349 pages, which we were informed had been agreed by the parties prior to the Hearing. Pages 249A to 249M (13 additional pages) were added to the Hearing Bundle following an application made by the claimant (the respondent’s representative being in agreement with this) as supplemental pages.

[11]Following discussion with parties, it was agreed that any issues relating to liability and remedy would be investigated and determined by the Tribunal during this hearing.

[12]We were also provided with a file of documents containing the claimant’s remedy documents. We granted permission for the claimant to add the documents included at pages 220-248 of the Remedy Bundle, following an application made by the claimant on 26 October 2023. This application was largely granted by consent. We considered that the respondent’s representative was open to make submissions about relevance during submissions. We noted that the claimant’s emails that had not been translated into English could not be considered by the Tribunal and we did not grant permission for the claimant to rely on those. The updated Remedy Bundle was provided on the afternoon of the same day.

[13]It was agreed that the remaining complaint that the Tribunal is required to investigate and determine was a complaint of direct disability discrimination pursuant to section 13 of the Equality Act 2010.

[14]We discussed the list of issues at pages 21 and 22 of the Hearing Bundle with the claimant and the respondent’s representative. The claimant indicated that she wished to add further allegations of less favourable treatment because of her race according to her current knowledge (and the claimant also wished to add four named actual comparators). The claimant was advised that she would need to make an amendment application (which she indicated she would prepare and make later that day). Subject to the outcome of any amendment application to be made by the claimant, the issues which the Tribunal were required to investigate and determine by the Tribunal were as follows, both parties being in agreement with these: 1. Was the claimant a disabled person within the meaning of section 6 of the Equality Act 2010 at the material time or times? The claimant says she was a disabled person by reasons of Lyme disease and Babesiosis co- infection. Her symptoms included weakness, flu-like symptoms, some neurological problems and pain the back, knee, hips, arms and figures? Direct Discrimination (disability)-section 13 of the Equality Act 2010 2. Was the claimant subjected to the following treatment:(a) Sarah Brewer failed to respond to the claimant's email sent on or around 17 January 2019 informing Ms Brewer of the claimant's condition (despite the claimant's request for a response);

(b) At a meeting around the end of January 2019 Sarah Brewer told the claimant: (i) That she would not accept her GP's medical note; and (ii) Asked the claimant if she was not physically but mentally ill.

(c) On or around 1 February 2019 Sara Brewer dismissed the Claimant. 3. If so, was this less favourable treatment on the grounds of the claimant's own The claimant relies on a hypothetical comparator in respect of each allegation of discrimination. Time Points 4. Did any of the acts complained of take place more than three months (plus the extension arising out of early conciliation) before the presentation of the ET1? If so, were they part of conduct extending over a period and so treated as brought in time under section 123(3)(a)? In other words are any of the claims out of time? 5. If so, would it be just and equitable to extend time? Remedy 6. Did the claimant suffer any financial loss? 7. Should the Tribunal make an award of injury to feelings? 8. Should interest be awarded and if so in what amount?

[15]It was intended that on 25 October 2023 we would hear any amendment application that the claimant wished to make. On the morning on 25 October 2023, it became apparent that Mr L Bowman would be unable to sit on the Tribunal as he had formed part of the original Tribunal that heard the claimant’s claim. The EAT had remitted the case to a differently constituted Tribunal. This was prior to any evidence being heard by the Tribunal.

[16]We invited parties to consider whether or not they were content to proceed with a Tribunal consisting of two members. The claimant indicated that she believed it would be good to have three Tribunal members and she believed this was in accordance with the law, whereas the respondent’s representative was content to proceed with a two-member Tribunal. In the circumstances, the Tribunal directed that the Clerk to the Tribunal make enquires about whether a third Tribunal member could be allocated.

[17]The Employment Judge and Ms Houzer continued to sit in order to discuss any outstanding preliminary matters with the claimant and the respondent’s counsel. This included discussing a timetable in relation to hearing the claimant’s amendment application that had been made. We decided it would not be appropriate to determine the claimant’s amendment application as a panel of two Tribunal members.

[18]After the Tribunal adjourned, parties were advised that a third Tribunal member had been allocated, Mrs B K Saund, who will be available to attend the hearing from 26 October 2023. Enquiries were made to obtain electronic copies of the Hearing Bundle and Witness Statements so that these could be sent to Mrs Saund to enable her to read these in advance. The claimant requested permission to provide an updated Schedule of Loss, the respondent’s representative did not object, and accordingly, permission was granted by the Tribunal. It was agreed that the Tribunal would adjourn and reconvene on the following day, on 26 October 2023, at 10.00am and we would hear the claimant’s amendment application (thereafter Mrs Saund attended on 26 October 2023). Claimant’s amendment application

[19]The amendment application was intimated by the claimant on 23 October 2023 (the application itself being dated 15 October 2023). The claimant’s application had not been copied to the respondent in accordance with Rules 30 and 92 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“ET rules”). The claimant re-submitted the application to amend her claim to include a complaint pursuant to section 15 of the EqA together with further details relating to that application on 24 October 2023 (copying in the respondent’s representative). The claimant also made a further application on 24 October 2023 to include additional complaints of less favourable treatment pursuant to section 13 of the EqA and further to add named comparators in respect of the claimant’s direct disability discrimination complaint.

[20]We noted that The Honourable Mrs Justice Eady, President of the EAT observed within the Judgment relating to the claimant’s EAT appeal (Miss J KlonowskaSocha v Falck Ambulance Services Limited

[2022] EAT 77

) at paragraphs 14 and 19: “14. In its reserved judgment, the ET set out the issues that it was to determine as identified at the preliminary hearing, as I have recorded above. Noting that there had been a discussion of the claimant's absences at the return-to-work interview, the ET observed that for the claimant to complain of discrimination based upon absences she would have needed to have brought a claim under section 15 EqA, discrimination arising from disability, but she had not. … 19. In her skeleton argument for today's hearing, the claimant sought to address again some of her original grounds of appeal and to raise a new claim under section 15 EqA. Those were, however, matters that were considered and rejected at the rule 3(10) hearing and were not matters that I allowed to be re-opened before me today.”

[21]As the claimant’s complaints were ultimately remitted to be re-heard by a differently constituted Tribunal, and in terms of the claimant’s amendment application pursued at this Hearing, we considered that it was necessary in the interests of justice to hear the claimant’s amendment application.

[22]Upon reading those applications, along with the documents referred to in the claimant’s applications, the respondent’s Skeleton Argument and on reviewing the cases provided with the Skeleton Argument, and upon considering oral submissions from the claimant and the respondent that were made during the Hearing on 26 October 2023, the Tribunal decided to refuse permission for the claimant to amend her complaints and the list of issues pursuant to the applications made by the claimant.

[23]We considered the relevant authorities including Selkent Bus Co Ltd v Moore

[1996] ICR 836

and the Presidential Guidance – General Case Management Guidance Note 1: Amendment of the Claim and Response.

[24]We took into account all the relevant circumstances. In terms of the nature of the amendments that the claimant sought to make to her complaints, we considered that they would be a substantial alteration to the existing complaints. With regards to adding a new complaint pursuant to section 15 of the EqA, this would be a substantial alteration pleading a new cause of action.

[25]We considered the applicability of time limits. The claimant’s ET1 form was dated 30 May 2019 (which indicated that the claimant’s employment ended on 01 February 2019). As at the dates of the Final Hearing, the matters that the claimant sought to add to her claim by way of amendments were in excess of four years outwith the time limit set out at section 123(1)(a) of the EqA. Taking account of the circumstances, including but not limited to the fact the claimant was represented by counsel at the Preliminary Hearing on 16 September 2019 and that she pursued an amendment application at that hearing, and the lack of a satisfactory explanation for the delay in making this application, and balancing these matters against the potential prejudice that could be caused to the respondent by the delay, we considered that there was no reasonable prospect of the claimant obtaining an extension of time pursuant to section 123(1)(b) of the EqA.

[26]We also took into account the timing and manner of the application. An application should not be refused solely because of the delay in making it and an amendment application can be made at any time. At the Preliminary Hearing on 16 September 2019, the Tribunal was able to clarify the nature of the claimant's case and the issues that would need to be addressed in order to determine her claim. The claimant had the benefit of being represented by counsel at that hearing and it was made clear that she was pursuing a claim of direct disability discrimination under section 13 of the EqA. Her complaint, however, was not limited to the question of dismissal. The claimant was permitted to amend her claim to add allegations relating to the return-to-work meeting with Ms Brewer prior to the probation review meeting and in respect of Ms Brewer's alleged failure to respond to an email of 17 January 2019. In the Tribunal's record of the case management discussion held at that hearing, it is further noted that there was a possibility that those additional allegations might give rise to a question in terms of whether they had been raised in time and/or whether they amounted to a continuing act, of which the dismissal was the last part. Those were matters, the Tribunal recorded, that would require to be investigated and determined at the Final Hearing.

[27]The claimant attended a Final Hearing before a differently constituted Tribunal. The claimant did not seek to amend her complaints to add the complaints that she is now seeking to add during that hearing.

[28]The claimant’s appeal to the EAT in relation to her attempt to add a complaint under section 15 of the EqA was rejected at the 3(10) stage of the EAT’s process. Paragraph 19 of Mrs Justice Eady’s decision records that the claimant sought to address the same issue again that were considered and rejected at the Rule 3(10) Hearing and they were not matters that Mrs Justice Eady permitted to be re-opened before her (at the final EAT hearing).

[29]The EAT’s Judgment is dated 20 January 2022, pursuant to which the claimant’s claim was remitted to be re-heard. Thereafter, the claimant did not present her amendment application in a timely manner, and there was no satisfactory explanation for this. The respondent were not aware of the claimant’s application until after the start of the Final Hearing. Given the timing and manner of the claimant’s applications, it was accordingly not possible for the Tribunal to hear the applications until the Final Hearing.

[30]The respondent’s representative submitted that if the applications were granted, this may require further disclosure and witness evidence to be prepared and it would necessitate a postponement. The respondent’s representative stated that the Final Hearing would not be relisted for a number of months (and possibly years). This could cause the respondent’s witnesses significant prejudice, particular considering that the events in question happened quite some time ago.

[31]We took into account the claimant’s explanation that she prepared her ET1 Form without any legal assistance and that her counsel at the initial Preliminary Hearing had advised her incorrectly that she could only just choose one section pursuant to which to make her claim. In her application the claimant stated: “The decision I motivate the fact that I was creating ET1 by myself without any help of any Barrister or Law specialist. In ET1 I sign Discrimination as base of the claim, but the form did not ask about direct or non-direct discrimination, so I was not aware about it and I did not specify it. At first hearing I had free Barrister who wrongly advised me that in the UK I can choose just one section to make the claim. This what I am aware the Judge did not react at that situation. I am originally from different country, in the country of my origin I know I could claim both sections, but because I was advised that way and the Judge did not react then I was sure that the specialist are right.”

[32]The claimant explained that she was advised at the Final Hearing that she requested the Employment Judge to add a section 15 EqA complaint, but she was advised that she had to set out her complaint in writing and she was not able to do so at the time.

[33]The claimant referred to the following reasons that the Tribunal should consider: “1. By adding the sections both parties will be at equal footing, especially that responded side was all the time represented and supported by qualified and paid barrister while I had received just occasional law support and unfortunately I often experienced wrong advice. 2. By adding section 15 it will help to deal with case in way which are proportionate to the complexity and importance of the issues. 3. The difference between direct and indirect discrimination are often very little. This causing a lot of confusions or misunderstandings. By adding the additional section we will avoid the misunderstanding and we will save the time and money which has to be spend on the process.”

[34]The claimant referred to the overriding objective and stated that granting her application would assist the Tribunal in terms of dealing with the proceedings fairly and efficiently.

[35]Having taken into account all the circumstances and having balanced the injustice and hardship of allowing the amendment applications against the injustice and hardship of refusing them, we concluded that the balance of prejudice and hardship lies in favour of the respondent (and refusing the applications). The respondent would suffer significant prejudice if the amendment applications were allowed. We were satisfied that the respondent would need to consider substantial further disclosure and further witness evidence is likely to be necessary, and the Final Hearing would almost certainly need to be delayed or postponed in order to facilitate this. The claimant had not provided a satisfactory explanation in terms of the significant delay in making her amendment application. Although the claimant will be deprived of the opportunity to pursue her complaints under s 15 of the EqA and any additional direct disability discrimination complaints (and in terms of consideration of her named actual comparators), the claimant had a number of direct disability discrimination complaints which will be investigated and determined by the Tribunal during the course of this Final Hearing (the claimant will be able to rely on a hypothetical comparator if appropriate).

[36]Accordingly, we did not consider that it was in accordance with the overriding objective (Rule 2 of the ET Rules) to grant permission for the claimant to amend her complaints.

[37]For the avoidance of doubt, the list of issues (set out above) remains unchanged. We advised parties that the Tribunal will proceed to consider the claimant’s claim under section 13 of the EqA and the substantive issues that require to be investigated and determined are those listed at pages 21-22 of the Hearing Bundle.

[38]We record that the respondent’s representative conceded during the course of the Final Hearing that the claimant had a disability within the meaning of section 6 of the EqA at the material times relating to the events in this claim (the alleged acts/omissions of direct disability discrimination relate to alleged acts/omissions dated between 17 January 2019 and 01 February 2019). Evidence and Submissions

[39]Prior to the start of the evidence, the Tribunal advised that if the claimant wished to stand at any time she may do so, if she requires any additional breaks (other than the usual breaks we build into each day of the Hearing which were explained at the outset of the Hearing) she may request these, and that there will be water available for each party and witnesses throughout the Hearing. The respondent’s representative and the claimant were advised that they should let the Tribunal know if they require any reasonable adjustments. Neither the claimant nor the respondent’s representative requested any reasonable adjustments to be made.

[40]The claimant gave evidence on her own behalf, and she produced a written witness statement.

[41]Ms Sarah Brewer (Head of Workforce Planning) gave evidence on behalf of the respondent, who produced a written witness statement. Ms Liz Fancy (whose role was HR Director) also provided a written witness statement, although she did not attend the Tribunal to give oral evidence. Upon the claimant not objecting, we advised that we would read Liz Fancy’s written statement. We also advised that parties could address us during their submissions in terms of how much weight we should give Liz Fancy’s statement. Accordingly, we gave Liz Fancy’s statement appropriate weight bearing in mind that she did not attend the hearing to give live evidence.

[42]Ms M Stanley, counsel, represented the respondent during the hearing between 25 and 30 October 2023 (Ms M Vincent, Solicitor represented the respondent on 24 October 2023). The claimant represented herself during the hearing.

[43]The Tribunal were provided with written representations by both the respondent’s representative and the claimant. In addition to these, both the respondent’s representative and the claimant supplemented those representations by way of oral submissions.

[44]Although the evidence and submissions had been completed, the Judgment was reserved, and it was necessary for the Tribunal to reconvene for deliberations in chambers (in private) on 04 December 2023, which was listed as an additional hearing date.

Findings of Fact

[45]On the documents and oral evidence presented the Tribunal makes the following essential findings of fact restricted to those necessary to determine the List of Issues:

[46]On 30 July 2018 the claimant started working for the respondent as a Workforce Planner.

[47]Clause 7 of the claimant’s offer of appointment and statement of terms and conditions of employment dated 24 July 2017 (signed and dated by the claimant on 24 July 2018) stated: “The first six months of your employment will be a probationary period during which time your performance and conduct will be monitored and appraised. During this period you will be entitled to give and receive one weeks’ notice of termination of employment. Upon successful completion of your probationary period, you will be notified in writing that your position is confirmed as permanent. However, if you are found for any reason to be whatsoever to be incapable of carrying out, or otherwise unsuitable for your job, your probationary may be extended and/or your position may be terminated without following the Company's disciplinary procedure. Alternatively, the Company may extend your probationary period by up to a further period of three months.”

[48]The claimant’s salary was £24,000.00 per annum gross.

[49]The claimant was required to work from 8am until 6pm with two unpaid 30-minute breaks.

[50]The respondent, Falck UK Ambulance Services Ltd, is a private limited company which provides ambulances and staff to hospitals.

[51]The claimant’s duties were set out in her Job Description (see page 266 of the Hearing Bundle). In addition, the claimant’s duties included arranging overtime including training for ambulance workers, archiving and managing company documents, managing and improving working methods to create new standards for the benefit of the respondent’s employees, preparing invoices for clients, and preparing reports for clients.

[52]The claimant had suffered from Lyme disease since 2016 and babesiosis (which she was diagnosed with in 2018). The claimant experienced back pain since December 2018 and the intensity of this varied (and she also suffered from knee pain since September 2018). In addition, the claimant suffered significant pain in her hip, shoulders, and fingers. Additionally, the claimant suffered from skin problems and her symptoms relating to these occurred frequently. The effect on the claimant’s day to day activities was significant, albeit her symptoms were intermittent. The claimant experienced difficulties with sitting and standing at certain times.

[53]On her Application Form dated 06 June 2018 sent by the claimant to the respondent the claimant indicated that she did not have a disability.

[54]She advised Dr John W. Brennan, external Occupational Health Adviser for the respondent that she had a condition that may affect her ability to process written material. He suggested that a discussion be arranged with the claimant to consider whether necessary adjustments (if any) can be put into place (see page 270 of the Hearing Bundle).

[55]Lezli Feeney, Head of HSEQ advised on 06 September 2018 that the claimant was safe to work until the new desks were in place. She stated “After that if she has problems she will contact me. Her condition is long standing and stable and is unlikely to cause significant problems at work. I will send a formal risk assessment when I have a chance.” (see page 271 of the Hearing Bundle).

[56]The claimant sent an email to Simon Rolton (Resource Manager) who was her line manager at the time on 09 October 2018 advising him that due to a special health condition that she told him about, she was seeking treatment and she required flexible holiday to arrange medical appointments and some extra days of holiday.

[57]Mr Rolton replied on the same day advising: “I understand, from what you have told me about your condition, that you may need 2 days off every month for the next 6 months or so, to return to Poland for treatment. You have stated that you are willing to use your annual leave entitlement for this purpose. If the situation arises where you need to take unpaid leave to maintain your treatment, this will be authorised. I am happy to support and accommodate you in this situation, but please confirm travel dates with me as soon as they are available,” (see page 249B of the Hearing Bundle).

[58]The respondent used Snowdrop, a system on which overtime relating to its employees was recorded. The respondent introduced a new workforce planning system called Quintiq in November 2018. There was an information session provided in relation to the new system to the respondent’s team including the claimant. Further one to one sessions were provided in the week commencing 12 November 2018 when the system became live.

[59]The claimant requested training on the new system by email dated 17 December 2018.

[60]Theresa Gatfield, Systems and Forecasting Manager attended the respondent’s offices on 19 December 2018 to provide training.

[61]Thereafter, on 19 December 2018, Ms Gatfield sent two guidance documents to the claimant by email (see pages 161 and 162 of the Hearing Bundle).

[62]In December 2018 it became apparent to Ms Brewer that the claimant had recorded November 2018 overtime using the respondent’s Snowdrop system following email correspondences between her, the claimant and Carly Bergado, Payroll Manager (see pages 274-285 of the Hearing Bundle).

[63]On 07 December 2018 Theresa Gatfield sent November 2018’s payroll report by email to Carly Bergado and the respondent’s HR team. Carly Bergado noted in her reply that day that there is no absence logged on the report for EMS Staff (there was one employee who was AWOL and another who was off sick). Ms Brewer was asked to confirm why no absence had been logged by the planner. Ms Gatfield replied advising that this information was on a separate report which covered PAYE staff from 12 November 2018. There were queries raised about overtime recorded on Snowdrop and the fact they did not marry up with the time recorded from 12 November 2018 onwards, and there appeared to be hours missing.

[64]The claimant sent an email to Ms Brewer on the same day at 5.54pm advising: “Around 3 weeks ago when you was not in office I asked David how shall I do OT in November and he said that on Snowdrop like I used to do till now. That time Dean was with us. As well David said that he, you, me and Sara will have to sit and talk about our new responsibilities. Right now David is at holiday. I hope that after his holiday we will talk about it because I do not know how to do OT on quintic and if I still have to use the traffilog.”

[65]The claimant further explained that all November 2018 overtime was recorded on Snowdrop and that the time on Snowdrop is different to the one on Quintiq as Quintiq included preparation time.

[66]David Harris, Director of Emergency and Urgent Care subsequently advised Ms Brewer (at a later stage in the process) that David Harris had not said this to the claimant. Dean Ousby also stated that he could not recollect David Harris saying this to the claimant.

[67]On 07 December 2018 at 6.14pm Ms Brewer advised that she was not aware of any conversation regarding pay and overtime that the claimant had with David Harris. She stated that she was also not aware that overtime was being recorded on Snowdrop after 14 November 2018. Ms Gatfield was advised by Ms Brewer that some remedial work will need to be carried out to ensure the information was presented correctly for payroll. The claimant sent an email on the same day advising that they needed to talk about the issue she described in her email sent at 6.30pm (see page 276 of the Hearing Bundle).

[68]On 10 December 2018 Carly Bergado advised that she needed to know the correct overtime information (and that she needed the information that day). She questioned why there was data on Snowdrop when EMS was live from 12 November 2018 and that all staff should have been clocking in and out “from the go live date”. The claimant sent an email on the same day at 12.03pm setting out a detailed analysis of absences, and overtime information (see pages 274 and 275 of the Hearing Bundle).

[69]The claimant travelled to Poland to seek medical treatment in December 2018 and she took a period of sick leave.

[70]On 24 December 2018 at 1.13pm the claimant sent an email to Ms Brewer advising that when she was at her last doctor’s appointment, her doctor had decided that she needed to take a rest. Accordingly, she attached a copy of a letter from her doctor relating to her doctor’s leave (as a jpg document) and she advised that she will be able to return to work in January 2019. The attached letter from the doctor dated 21 December 2018 stated: “Dg.; Borelioza/Lyme disease The patiant has been advised to rest-off work from 22.12.2018 to 14.01.2019.”

[71]Ms Brewer was on annual leave from 24 December 2018 until 28 December 2018 (which was confirmed on an automated office message sent to the claimant on 24 December 2018 at 1.14pm, see page 169 of the Hearing Bundle).

[72]On 26 December 2018 at 8.48pm the claimant forwarded that email to the respondent’s HR team advising she sent the email to Ms Brewer and as she was on holiday she did not reply and she requested that they read the email below.

[73]The claimant sent a further email to Charlee Hind on 28 December 2018 at 10.31am advising she had not received a reply from the respondent’s HR team asking if he could look into the email history below.

[74]Ms Brewer took short notice leave on 02 January 2019.

[75]The claimant returned to work on 14 January 2019.

[76]The claimant provided a copy of the letter from her doctor dated 21 December 2018 to Ms Brewer on 15 January 2019.

[77]The claimant also sent an email to Ms Brewer on 17 January 2019. She referred to a conversation that took place between them on the previous day in relation to her sick note. The claimant stated, “I know that there are some problems with accepting it even if it is written in English.” She advised that the doctor’s registration status can be checked on the register of Polish doctors and she pointed out that that this was obtained from an EU doctor. She said the second option was to contact the ILADS centre in the USA. The claimant asked whether she could use her sick note to apply for Statutory Sick Pay (“SSP”) from 22 December 2018 until 14 January 2019 (having returned to work on 14 January 2019) and she also made enquiries in relation to booked holiday on 24 December 2018 and the bank holiday on 01 January 2019.

[78]A conversation took place between the claimant and Ms Brewer later that day during which Ms Brewer advised that the claimant would need to contact payroll and resolve her queries with payroll.

[79]The claimant contacted the respondent’s payroll team on around 20 January 2019. The respondent’s payroll team approved the claimant’s sickness absence and confirmed that she was entitled to SSP on the same date. The claimant subsequently received her SSP entitlement.

[80]On 16 January 2019 at 2.07pm the claimant advised Theresa Gatfield that she had spoken to an employee named Hakim and he had missed 7 hours in terms of his December 2018 overtime because the shift on Christmas Day and posted overtime on that day was not counted as 1.5 times (see page 182 of the Hearing Bundle). She followed up with a further email to her on 17 January 2019 at 1.07pm which was copied to David Harris, Sarah Brewer, Carly Bergado, and Mark Glover. Ms Gatfield replied the same day at 1.52pm asking for examples of any employees who were not paid at the correct rate. The claimant replied advising she had checked with payroll and they told her that the increased rate had to be added manually but no one did this. She cited two examples of workers who were not paid the correct overtime. She asked that the information she provided be added to Quintiq so payroll could process the missing overtime.

[81]Kevin Neylon, Finance Administrator sent an email on 18 January 2019 at 12.11pm requesting a run sheet. The claimant replied the same day at 2.20pm advising him to “just scroll down”. He replied to the claimant at 2.22pm that day stating “Diamond.”

[82]On 16 January 2019 at 5.21pm an email was sent from the claimant to Secamb, one of the respondent’s NHS clients copied to Ms Brewer, Ms Cegielska and David Harris which contained information relating to the respondent’s shift cover for February 2019. The information indicated where there was “no crew” and “full cover of shift”. Ms Brewer points out that this was sent without having been reviewed by her.

[83]Chris Haines replied on behalf of the client, Secamb to David Harris on the same day at 5.42pm advising: “Please see attached from your planning team for February shifts in SECAnb. As im sure you are aware this is wholly unacceptable and if it remains the case, it will significantly breach the contractual KPIs expected.” (see page 289 of the Hearing Bundle).

[84]On 16 January 2019 at 9.50pm David Harris sent an email to Sarah Brewer advising: “I am disappointed the SECAMB forecast wasn’t reviewed and sign off by the Ops Management team before sending to the client. This is not the first time it has been sent without review. Both Mark and I will be in the office tomorrow afternoon, so we will need to take this time to see how we can improve the forecast utilising the ECAs and staff from SCAS.”

[85]Ms Brewer replied on the following day at 09.12am advising that this was sent after she left work the previous day, that the claimant knew that it must be reviewed, and Ms Brewer also advised that she had not finished plotting all the bank shifts yet.

[86]On 24 January 2019 at 10.57am Ms Brewer send an email to the claimant advising: “As discussed, Please can you update the forecast for the whole of February for SECAMB. This needs to include the names of the crew. Can you ensure you send it to me ONLY so that I can review and sign off with Mark and David.” (see page 307 of the Hearing Bundle).

[87]The claimant sent the February 2019 forecast for SECAMB on the same day at 5.12pm to Sarah Brewer copied to David Harris and Mark Glover.

[88]A return-to-work meeting took place between Ms Brewer and the claimant on 23 January 2019. As the respondent had implemented a Bradford sickness absence scoring system from 01 January 2019, Ms Brewer indicated that the claimant’s score was 80 or above. This states: “Any employee who has reached a score of 80 points will be informed that this is above the standard for the Company by a letter which highlights our concern, their Bradford score and also the next step if the absence level continues.” (see page 291 of the Hearing Bundle).

[89]Point 6 of the Return-to-Work Form under the sentence “Confirm what support and advice has been offered, if applicable” it is recorded, “N/A – Joanna suffers from Lyme disease. She also suffered ‘Basia’(?) disease.” (see page 292 of the Hearing Bundle).

[90]Ms Brewer confirmed that the claimant is entitled to be paid SSP in respect of her sickness absence period at point 8 and that she had confirmed the decision on payment of SSP with the claimant (at point 9).

[91]In terms of action taken as a result of the interview (at point 10) Ms Brewer ticked the “other” box and she specified in respect of this next to the relevant box the words “probationary review”. She indicated that the reason agreed for absence was bacterial disease.

[92]She stated at point 11 under “additional notes” that the claimant also has physiotherapy for “Achilies Tendonitis”.

[93]She also provided the following information on the final page of the form: “Joanna has stated that the Lyme disease was not diagnosed until September. I have outlined my concerns regarding the high number of absences, and asked if there are any other underlying issues, including welfare issues, Joanna has stated “No”. I have informed her that due to the absences she will be invited to a probationary review meeting with HR.” (see page 293 of the Hearing Bundle).

[94]Both the claimant and Ms Brewer signed and dated the Return-to-Work Form on 23 January 2019.

[95]On 25 January 2019 the claimant requested to use her holiday leave (in lieu of not being able to take 1 January 2019) for a physiotherapist session. Ms Brewer replied on the same day approving the claimant’s request.

[96]An issue came up in terms of the appropriate rate at which to pay certain employees during December 2018. The claimant advised on 30 January 2019 that she was aware that the employee in question should be paid double rate. The payroll team queried this further. Mark Glover replied on the same day advising “Regarding the double time query, if this was a planned shift as part of his 4 days on it is not paid as an Overtime/Double Time. It does not count either as part of the incentive scheme we are running since it is not an additional shift so it should be paid at flat rate.” (See page 194 of the Hearing Bundle).

[97]Carly Bergado advised later that day that if the employee is on shift on an enhanced rate day then the employee would receive 1/12th of the annual salary and then the extra hours at whatever the number of hours worked (but at flat rate). She stated if the employee was entitled to receive double time then they would be due the shift length hours but at the flat rate as 1/12th of the annual salary has already been received. She advised that an issue was that this was never logged on Quintiq (in order to pay this, this should have been logged as the number of hours under over time but at the flat rate). She queried whether the particular worker in question was due the shift length hours at flat rate and if so, confirmation of the number of hours was required (see pages 193 and 194 of the Hearing Bundle).

[98]Ms Brewer confirmed on the same date that the individual should be paid 12 hours at the flat rate. On the following day, Ms Bergado advised that she would add this to the February 2019 payroll.

[99]On 30 January 2019 the claimant was advised by letter that her offer of appointment stated that her employment was on the basis of a six-month probation period. The letter stated that the claimant’s performance and conduct during the probation period, which ends on 28 February 2019 had been carefully monitored. In light of this, the claimant was invited to attend a probation review meeting on 01 February 2019 (which would be chaired by Ms Brewer and a member of the respondent’s HR team would also be in attendance). The letter requested that if she would like to be accompanied by a work colleague or a trade union official of her choice, she should let Ms Brewer know their details prior to the meeting.

[100]On 31 January 2019 David Nobbs sent an email to the claimant advising that the respondent were discriminating against full time staff. As the 25 December 2018 was a public holiday, he advised that the respondent should pay the enhanced rate regardless of whether it was one of his four working days. The claimant replied on 31 January 2019 at 4.57pm advising, “They decided to pay increase rate for all shifts on Bank holiday. The missing hours for the break and training will be added to December and it will be paid with January.” (See page 215 of the Hearing Bundle).

[101]Julie Hexter, Planner sent an email to Ms Brewer on 01 February 2019 at 11.45am advising that an employee had queried with the claimant why their 12 days annual leave request had not been approved. She explained that they could only authorise up to 10 days (and that he would be required to put in writing the reason for the 12- day request). She further states that as she walked away she had heard the claimant say that the claimant would authorise this. Ms Hexter checked the following day and the claimant had not authorised this. She stated that she spoke to the employee in question who indicated that they did not write in to request annual leave in excess of 10 days.

[102]On 01 February 2019 at 11.19am Dean Ousby advised that he was present (although not active) during a conversation between David Harris and the claimant and that he did not recall David Harris telling the claimant that she could continue putting the overtime on Snowdrop.

[103]The claimant’s probation review meeting took place on 01 February 2019. The claimant attended the meeting and the meeting was chaired by Ms Brewer. The notes of that meeting (which were prepared by Fiona Worrell, HR Business Partner) are at pages 317 to 320 of the Hearing Bundle (which we accept are an accurate record of the meeting).

[104]Ms Brewer indicated that the claimant’s start date on the respondent’s records was 28 August 2018 (the claimant stated that she thought she started in July 2018 and she had applied for an administration role).

[105]At the start of the meeting Ms Brewer also stated that the claimant’s line manager was Simon Rolton when she started her employment. Ms Brewer advised that she had been the claimant’s line manager since early December, she had been reviewing her progress, and she appreciated that the work was stressful.

[106]The claimant advised that the hours of work made her tired and she wanted to reduce her working hours by working a day from home. She explained that the main problem was the medical treatment she needed at that time and that she was receiving treatment for Lyme’s disease. She explained that she had stage 3 Lyme’s disease and she experienced weakness of the body and back pain. She said she needed to receive treatment in three-week intervals and she had to concentrate on her treatment. She advised that it was cheaper to receive treatment in Poland. She stated that those were the main things that made her job difficult. She asked the question, “How do you see me in the Company after a few months?”

[107]Ms Brewer continued to address the claimant’s performance and she stated that it was important to look at input from everything. She ran through a number of concerns and feedback relating to the claimant’s performance. Ms Brewer did not believe that the performance and conduct concerns were related to the claimant’s condition which the claimant had described at the start of the meeting (the claimant did not assert this during the meeting).

[108]The claimant confirmed during the meeting that she attended training with a trainer named Chloe in relation to the Quintiq system. She stated “I went on training with Chloe. I did not have proper proof for overtime.” She confirmed she was given help and guidance two days before Christmas.

[109]Ms Brewer discussed her concerns in detail and obtained feedback from the claimant in respect of the points she raised.

[110]The claimant was also advised that: “I have also had a concern raised from the Harrow base regarding how you come across. In hind sight not everything is negative. Your timekeeping is good and you are always dressed appropriately. It is good for me to have staff I can rely upon. In general I feel you want to help, but the process is there and you need to follow this to the letter. You do not take decisions upon yourself. We have a small team and I do not feel I can rely on you to do the role. In light of the concerns raised I have to advise you that you are not successful in passing your period of probationary and you employment will be terminated. You will receive notice in writing and you will not be required to work you notice.” (see page 320 of the Hearing Bundle).

[111]The claimant responded to Ms Brewer in the following terms: “I feel that I cannot comprehend. When Simon was my manager it was fine, however Sarah I feel that we do not fit with each other. You are the manager who is not often at work. I thought it would happen like this. I have had feedback from other staff that probably you will lose your job.”

[112]Ms Brewer asked who had said this to the claimant. The claimant advised that she cannot tell her this.

[113]It was confirmed that the claimant will receive the outcome of that meeting in writing and that she would be provided with a right of appeal.

[114]The probation assessment form was completed (see pages 314-316 of the Hearing Bundle). Ms Brewer recorded that the claimant’s timekeeping was good, whereas her attendance, teamwork and general conduct were fair and the claimant’s quality of work, performance, communication, and attitude were graded as poor.

[115]The following concerns were recorded on the probation assessment form under the heading General Comments: “1. Following Procedures / Management Instructions On 7th December 2018, it was identified that you had entered all November overtime for EMS into Snowdrop which was in conflict with the new process that was introduced fol implementation of Quintiq on the 12* November 2018. You did not escalate this to any line manager and was only identified when payroll advised Theresa Gatfield and me. This resulted in 165 payroll queries, due to incorrect duplicate or differing entries on snowdrop and Quintiq (Email trail) 2. On the 16th January 2019 you sent an email of February deployment to our SECAMB client directly without this being reviewed by the Operations team. This resulted in inaccurate Information being sent to the clients (Email from DH / Email from JKS / Email from SECAMB / Copy of Deployment list) 3. On the 24th January 2019, I asked you to send an updated SECAMB deployment list for February to myself only, in order that I could review. You failed to do this and sent the email to David Harris and Mark Glover and myself. (Email) 4. On Thursday 24th January, you were witnessed by another staff member advising a member of EMS staff that you would approve a holiday that was over 10 days, which would require management authority. (Email) 5. Honesty & Integrity On the 7th December 2018, you advised me that David Harris had instructed you to enter the overtime for November payroll onto Snowdrop and that Dean Ousby was present to the conversation. I have spoken to both Dean Ousby who advised that he did not recall the conversation. David Harris has confirmed that he did not instruct you to submit overtime via Snowdrop. (Email from JKS advising me that DH had advised Snowdrop to be used) (Email from Dean Ousby) 6. On 31st January 2019, you advised me that you had added 'ghost' shifts to three members of EMS staff on the 03/01/19, as you believed that they had not been paid correctly for 25th & 26th December. (AdilKhameneh, Munday, Pugsley). You failed to ask for advice regarding this issue and did not check if in fact the payroll report that had been sent over by Theresa Gatfield in December 2018 had actually paid staff the enhanced rate. 'Ghost' clock in and out times had also been added to these entries, making them impossible to delete from the system. This is against any process and could potentially put the department in breach of Working Time Directives. (Screen images of Quintiq showing shifts added) 7. General Feedback In October 2018 I received a telephone call from David Harris, who informed me that you had been rude and discourteous towards him, whilst he had been discussing staffing with you. I have had further feedback from EMS staff at Harrow base that you are unhelpful when engaging with them on the telephone.” (see pages 314-315 of the Hearing Bundle).

[116]Section 5 of the form indicated that the claimant’s probation had not been successfully completed and that the probation period had not been extended. The reasons were not contained on the form as Ms Brewer did not feel there was sufficient space to enter these. However her concerns were set out at within the General Comments at pages 314 and 315 of the Hearing Bundle (referred to above). The claimant did not sign the form and she was visibly upset.

[117]The claimant was sent a letter dated 07 February 2019 enclosing a copy of the probation assessment form. She was advised that the respondent had carefully monitored the claimant’s performance and conduct during her probationary period and that the respondent decided to terminate her employment for the following reasons: “- Failure to follow procedure/management instructions - Concern regarding your Honesty & Integrity - Incorrect Records Keeping/Administration” (see page 321 of the Hearing Bundle)

[118]The claimant was advised that she had a right of appeal.

[119]The claimant sent a letter of appeal dated 14 February 2019. She set out seven numbered grounds of appeal (see pages 322 – 324 of the Hearing Bundle).

[120]The claimant was invited to attend an appeal meeting by letter dated 26 February 2019 scheduled to take place on 28 February 2019. The claimant advised that she could not attend the appeal meeting and requested the meeting to be delayed until first week of April 2019. The claimant was sent a letter dated 28 February 2019 inviting her to attend an appeal meeting on 1 April 2019.

[121]On 25 March 2019 the claimant was advised by Mr Peter Fevyer, HR Business Partner that due to circumstances beyond their control it was necessary to reschedule the appeal meeting. The claimant was invited to attend the appeal meeting on 2 April 2019.

[122]The appeal meeting had in fact taken place on 08 April 2019. The meeting was chaired by Irvin Luchowa, Head of Recruitment. The claimant attended the meeting along a companion named Barbara (who left the room after it was confirmed that they were not an employee of the respondent or a trade union representative). The notes of the appeal meeting which were taken by Mr Fevyer are at pages 335 to 340 of the Hearing Bundle (which we accepted were an accurate record of the meeting).

[123]The claimant sent an email to Mr Fevyer, Charlee Hind, Lynn Cowling, and Fiona Worrell on 10 April 2019 making a number of further points relating to her appeal (see pages 341-342 of the Hearing Bundle).

[124]The claimant sent a further email to the respondent’s HR team, Mr Fevyer and Charlee Hind on 07 May 2019 to follow up a lack of response to her request for copies of supporting evidence relating to her dismissal.

[125]A copy of an appeal outcome letter was not provided within the Hearing Bundle. Liz Fancy indicated at paragraph 19 of her witness statement that she could not find an appeal outcome letter. She explained that this would have been prepared by Irvin Luchowa, but he left the business shortly after the appeal hearing and his email account was no longer accessible, so she could not check if he ever sent anything out. Mr Fevyer left his employment with the respondent on 06 June 2019 and Liz Fancy was unable to find any record of him handing over this matter to anyone else within the respondent’s HR team. We gave Liz Fancy’s statement appropriate weight given she did not attend the Hearing to give live evidence, however, we noted that the claimant did not seek to challenge the content of Liz Fancy’s statement (which was on the whole consistent with the documents provided within the Hearing Bundle).

[126]The claimant was not reinstated following the appeal meeting.

[127]The claimant started ACAS Early Conciliation on 25 April 2019. ACAS issued an Early Conciliation certificate on 24 May 2019.

[128]The claimant presented her claim to the Tribunal on 30 May 2019.

[129]The claimant received legal advice from time to time during the Employment Tribunal process including but not limited to advice and assistance in relation to the first Preliminary Hearing from Simon Renton of counsel and pro bono counsel in relation to the claimant’s appeal. Observations

[130]On the documents and oral evidence presented, the Tribunal makes the following essential observations on the evidence restricted to those necessary to determine the List of Issues.

[131]The standard of proof is on balance of probabilities, which means that if the Tribunal considers that, on the evidence, the occurrence of the event was more likely than not, then the Tribunal is satisfied that the event did occur.

[132]Accordingly, where there was a dispute of fact, we made our decision on the balance of probabilities based on the evidence of the witness which set out the position both clearly and consistently, and we also considered the content of any relevant contemporaneous documents and emails.

[133]This was a case where it was possible to distil a significant amount of the material from the documents to which we were referred in relation to the issues that required to be determined by the Tribunal.

[134]We noted that the claimant did not tell the respondent that she was disabled by reason of Lyme disease or Babesiosis during the respondent’s recruitment process or interview. This was not documented in the claimant’s Application Form or in the correspondences from Occupational Health. She states at paragraph 4 of her witness statement that the Lyme disease and co-infections did not show any symptoms at that time (and the claimant thought she would be fine).

[135]The emails between the claimant and Simon Rolton on 09 October 2018 did not refer to Lyme disease, Babesiosis or any of the symptoms referring to those conditions. Ms Brewer who was Simon Rolton’s line manager at that time had a general overview of the claimant’s employment and described that in the course of her conversations with Simon Rolton he had told Ms Brewer that the claimant suffered from a skin condition. Given the circumstances and taking account of the documents to which we were referred, we accepted that this was what Ms Brewer was told (and there is no information in the email correspondences to which we were referred to indicate otherwise).

[136]We considered that there was information provided to employees including the claimant at or around the time when Quintiq was introduced. Ms Gatfield had provided initial training. There was a dispute in terms of what training the claimant was provided with and what constituted training on the respondent’s new system. We were not clear as to the content of any initial training or information provided, and there was a notable absence of training records on the part of the respondent. Notwithstanding this, it was clear that the claimant indicated that she required further training and that this was received by the claimant on 19 December 2018.

[137]The claimant complains that there was no response to her email sent to Ms Brewer on 17 January 2019. Ms Brewer explains at paragraph 9 of her witness statement that she was in the office that day and she spoke to the claimant and advised her that she will need to resolve her queries with payroll. She stated that she did not email the claimant as they had had a conversation about the issues raised by the claimant. The claimant did not accept that that conversation took place. We preferred Ms Brewer’s account at paragraph 9 of her witness statement, which was consistent with her oral evidence. The explanation provided by Ms Brewer of the conversation she had with the claimant is credible. As the information sought by the claimant were matters for the respondent’s payroll team (which were ultimately resolved by payroll), we decided that Ms Brewer’s response to the claimant’s queries was consistent with the evidence we heard and considered. We did not accept that there was no response from Ms Brewer. It is highly unlikely that there would be no response to an email of that nature from the claimant’s line manager, Ms Brewer given the circumstances, and, furthermore, we noted that the claimant’s actions thereafter are consistent with the account of that conversation provided by Ms Brewer. The claimant contacted payroll and the outstanding matters were ultimately resolved by them.

[138]In terms of the document sent on 16 January 2019, we found that it was highly unlikely that Ms Brewer would have asked the claimant to send an incomplete document to the respondent’s client. Ms Brewer knew at the time that the bank shifts had not been entered onto the document. We did not accept that in the circumstances Ms Brewer told the claimant to send the document to the respondent’s Secamb client.

[139]It was also not clear to us why the claimant had sent the information (which Ms Brewer advised the claimant to send to her only) on 24 January 2019 to Ms Brewer copied to David Harris and Mark Glover despite the issues experienced on the previous occasion and Ms Brewer’s instruction sent to her by way of an earlier email on 24 January 2019.

[140]The claimant states at paragraph 11 of her witness statement that Ms Brewer had said that the medical note would not be accepted at the meeting on 23 January 2019. We did not accept that the claimant was advised at the meeting on 23 January 2019 that Ms Brewer would not accept her GP’s medical note. No issues relating to this matter are recorded on the Return-to-Work Form (which was signed by the claimant and Ms Brewer at that time). The claimant explains in her witness statement that the issue was addressed by payroll on around 20 January 2019. As the issue had been resolved, it was difficult for the Tribunal to decipher why this issue would be resurrected (except if the respondent wished to confirm that the SSP had in fact been paid). We further noted that, at point 8 of the Returnto-Work Form Ms Brewer recorded that the claimant was entitled to SSP.

[141]We noted that the Return-to-Work Form did not indicate that the claimant was asked by Ms Brewer on 23 January 2019 if she was not physically but mentally ill. The claimant had signed and dated that form on 23 January 2019. The claimant did not complain about this at that time and she did not refer to the comment being made in her probation review meeting, her letter of appeal or in her ET1 Form. She did not provide any reason or satisfactory explanation relating to why she did not mention this in those instances. Ms Brewer denied making that comment. In her evidence she indicated that she asked the claimant about her welfare. She said this was a standard enquiry she made when conducting return to work interviews. We accepted Ms Brewer’s explanation in terms of what was said by her during that meeting to the claimant, which was consistent with the contemporaneous record of that meeting (as documented on the Return-to-Work form).

[142]During that meeting, the claimant stated at paragraph 12 of her witness statement that she was asked if she was in pain, and she had advised Ms Brewer that she was not in pain. She advised that Ms Brewer asked for details of her illness. The claimant explains she felt that some of these questions were too intrusive. Had the claimant indicated that she was in pain or that she required any adjustments, Ms Brewer could have addressed those during that meeting and an Occupational Health referral could well have been made. However the claimant did not request any support or adjustments at that meeting in respect of any medical conditions.

[143]Ms Brewer did not take any further action in respect of the claimant’s sickness absences. This is because her concerns were ultimately related to the claimant’s capability and performance within her role. It was unnecessary to progress matters relating to the claimant’s sickness absences in addition to this. She recognised that the claimant’s work was stressful at the probation review meeting.

The Law

[144]To those facts the Tribunal applied the law: S. 6 Equality Act 2010 definition of disability

[145]Disability is one of the protected characteristics identified in Section 4 of the Equality Act 2010 (“EqA”). It is further defined in Section 6(1): A person (P) has a disability if-(a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-today activities. Section 212(1) defines “substantial” as meaning “more than minor or trivial”; while Schedule 1, paragraph 2, further defines “long-term effects”.

[146]The effect of an impairment is long-term if –(a) it has lasted for at least 12 months;

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

(c) it is likely to last for the rest of the life of the person affected. If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. The word “likely” has been interpreted by the House of Lords to mean “could well happen”: SCA Packaging Ltd v Boyle

[2009] IRLR 746

[147]The time at which to assess the disability is the date of the alleged discriminatory act (Richmond Adult Community College v McDougall

[2008] ICR 431

(para 24) and Cruickshank v VAW Motorcast Ltd

2002 ICR 729

, EAT). In Goodwin-v-Patent Office

[1999] IRLR 4

, the EAT gave detailed guidance as to the approach which ought to be taken in determining the issue of disability. A purposive approach to the legislation should be taken.

[148]A Tribunal ought to remember that, just because a person can undertake day-today activities with difficulty, that does not mean that there was not a substantial impairment. The focus ought to be on what the claimant cannot do or could only do with difficulty and the effect of medication ought to be ignored for the purposes of the assessment.

[149]It is not always possible or necessary to label a condition, or collection of conditions. The statutory language always had to be borne in mind; if the condition caused an impairment which was more than minor or trivial, however it had been labelled, that would ordinarily suffice. In the case of mental impairments, however, the value of informed medical evidence should not be underestimated.

[150]Appendix 1 to the EHRC Code of Practice of Employment states that there is no need for a person to establish a medically diagnosed cause for their impairment. What is important to consider is the effect of the impairment and not the cause: Ministry of Defence v Hay

[2008] ICR 1247

[151]In Aderemi v London and South Eastern Railway Limited

[2013] ICR 591

, the EAT held that the Tribunal “has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other.”

[152]An impairment can vary in its effects over time, and it is a matter for the Tribunal, having regard to all the evidence, to consider whether it has been established that there has been a substantial adverse effect over the relevant period (Sullivan v Bury Street Capital Ltd

UKEAT/0317/19/BA

[153]Likelihood of the effect lasting 12 months or more is to be assessed at the time of the alleged contravention as confirmed by the Court of Appeal in All Answers Ltd v W & R

[2021] EWCA Civ 606

at paragraph 26: “The question, therefore, is whether, as at the time of the alleged discriminatory acts, the effect of an impairment is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts. A tribunal is making an assessment, or prediction, as at the date of the alleged discrimination, as to whether the effect of an impairment was likely to last at least 12 months from that date. The tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months. That is what the Court of Appeal decided in McDougall v Richmond Adult Community College: see per Pill LJ (with whom Sedley LJ agreed) at paragraphs 22 to 25 and Rimer LJ at paragraphs 30-35. That case involved the question of whether the effect of an impairment was likely to recur within the meaning of the predecessor to paragraph 2(2) of Schedule 1 to the 2010 Act. The same analysis must, however, apply to the interpretation of the phrase “likely to last at least 12 months” in paragraph 2(1)(b) of the Schedule. We note that that interpretation is consistent with paragraph C4 of the guidance issued by the Secretary of State under section 6(5) of the 2010 Act which states that in assessing the likelihood of an effect lasting for 12 months “account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood”.” Direct discrimination

[154]Further, direct discrimination is defined at Section 13(1) of the EqA as follows: -“A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” The protected characteristic of disability is listed at section 4 of the EqA (as defined in section 6, see above).

[155]The concept of treatment being less favourable inherently suggests some form of comparison and in such cases section 23(1) applies: “On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case.”

[156]The effect of section 23 of the EqA as a whole is to ensure that any comparison made must be between situations which are genuinely comparable. The case law, however, makes it clear that it is not necessary for a claimant to have an actual comparator to succeed. The comparison can be with a hypothetical person.

[157]Further, as the EAT and appellate courts have emphasised in a number of cases, including Amnesty International v Ahmed

[2009] IRLR 884

, in most cases where the conduct in question is not overtly related to [the protected characteristic], the real question is the “reason why” the decision maker acted as he or she did.

[158]Answering that question involves consideration of the mental processes (whether conscious or subconscious) of the alleged discriminator, and it may be possible for the Tribunal to make a finding as to the reason why a person acted as he or she did without the need to concern itself with constructing a hypothetical comparator.

[159]The basic question in a direct discrimination case is: what are the grounds or reasons for treatment complained of? In Amnesty International v Ahmed

[2009] IRLR 884

the EAT recognised two different approaches from two (then) House of Lords authorities -(i) in James v Eastleigh Borough Council

[1990] IRLR 288

and

(ii) in Nagarajan v London Regional Transport

[1999] IRLR 572

. In some cases, such as James, the grounds or reason for the treatment complained of is inherent in the act itself.

[160]In other cases, such as Nagarajan, the act complained of is not discriminatory but is rendered so by discriminatory motivation, being the mental processes (whether conscious or unconscious) which led the alleged discriminator to act in the way that he or she did. The intention is irrelevant once unlawful discrimination is made out. That approach was endorsed in R (on the application of E) v Governing Body of the Jewish Free School and another

[2009] UKSC 15

[161]The Tribunal should draw appropriate inferences from the conduct of the alleged discriminator and the surrounding circumstances (with the assistance, where necessary, of the burden of proof provisions) – as explained in the Court of Appeal case of Anya v University of Oxford

[2001] IRLR 377

[162]In Glasgow City Council v Zafar

[1998] IRLR 36

, also a (then) House of Lords case, it was held that it is not enough for the claimant to point to unreasonable behaviour. He must show less favourable treatment, one of whose effective causes was the protected characteristic relied on.

[163]Thus the reason for the treatment need not be the main or sole reason but must have at least a significant (or more than trivial) influence on the treatment to amount to an effective cause of it. In “reason why” cases the matter is dispositive upon determination of the alleged discriminator’s state of mind. In “criterion cases” there is no need to consider the alleged discriminator’s state of mind when the treatment complained of is caused by the application of a criterion which is inherently or indissociably discriminatory (R (E) v Governing Body of JFS

[2010] 2AC 728

, SC).

[164]In Shamoon v Chief Constable of the RUC

2003 IRLR 285

, a (then) House of Lords authority, Lord Nichols said that a Tribunal may sometimes be able to avoid arid and confusing debate about the identification of the appropriate comparator by concentrating primarily on why the complainant was treated as she was and leave the less favourable treatment issue until after they have decided what treatment was afforded. Was it on the prescribed ground or was it for some other reason? If the former, there would usually be no difficulty in deciding whether the treatment afforded the claimant on the prescribed ground was less favourable than afforded to another.

[165]Direct discrimination may be intentional or it may be subconscious (based upon stereotypical assumptions). The Tribunal must consider the conscious or subconscious mental processes which caused the employer to act. This is not necessarily a question of motive or purpose and is not restricted to considering ‘but for’ the protected characteristic would the treatment have occurred (see Shamoon). Burden of proof

[166]The burden of proof provisions in relation to discrimination claims are found in Section 136 of the EqA. Section 136(2) of the EqA provides that “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.”

[167]However, Section 136(3) of the EqA goes on to provide that: “But subsection (2) does not apply if A shows that A did not contravene the provision.

[168]Finally, in terms of Section 136(6), a reference to “the court” includes a reference to an Employment Tribunal.

[169]The burden of proof is considered in two stages. Giving the judgment of the Court of Appeal in Igen Limited v Wong

[2005] ICR 931

(CA), Peter Gibson LJ said in paragraph 17: “The statutory amendments clearly require the employment tribunal to go through a two-stage process if the complaint of the complainant is to be upheld. The first stage requires the complainant to prove facts from which the tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld.”

[170]The Court of Appeal, in Igen Limited v Wong, set out the position with regard to the drawing of inferences in discrimination cases.

[171]It is unusual to have direct evidence as to the reason for the treatment (discrimination may not be intentional and may be the product of unconscious bias or discriminatory assumptions) (Nagarajan v London Regional Transport

[1999] 4 All ER 65

). Evidence of the reason for the treatment will ordinarily be by reasonable inference from primary facts. At Stage 1 proof is of a prima facie case and requires relevant facts from which the tribunal could infer the reason. Relevant facts in appropriate cases may include evasive or equivocal replies to questions or requests for information; failure to comply with a relevant code of practice; the context in which the treatment has occurred including statistical data; the reason for the treatment (See Madarassy v Nomura International Plc

[2007] ICR 867

(CA)). “In so far as this [information] was in the hands of the employer, the claimant could have identified the information required and requested that it be provided voluntarily or, if that was refused, by obtaining an order from the Tribunal” (Efobi v Royal Mail Group

[2019] EWCA Civ 19

[172]Assessment of Stage 1 is based upon all the evidence adduced by both the claimant and the respondent but excluding the absence of an adequate (i.e. nondiscriminatory) explanation for the treatment (which is relevant only to Stage 2) (See Madarassy). All relevant facts should be considered but not the respondent’s explanation, or the absence of any such explanation (Laing v Manchester City Council

[2006] ICR 1519

, EAT and Efobi). The respondent’s explanation for its conduct provides the reason why he has done what could be considered a discriminatory act. “Most cases turn on the accumulation of multiple findings of primary fact, from which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts” (See Madarassy). “In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts” (See Igen v Wong

[2005] ICR 935

[173]The employer must seek to rebut the inference of discrimination by explaining why he has acted as he has (See Laing). The treatment must be “in no sense whatsoever” because of the protected characteristic (Barton v Investec 2003 IRC 1205 EAT). The explanation must be sufficiently adequate and cogent to discharge the burden and this will depend on the strength of the Stage 1 prima facie case (Network Rail Infrastructure Limited v Griffiths Henry

2006 IRLR 865

). The Tribunal may elect to bypass Stage 1 and proceed straight to Stage 2, if they are satisfied that the reason for the less favourable treatment is fully adequate and cogent (See Laing).

[174]In Madarassy, the Court of Appeal found that the words “could conclude” must mean “a reasonable Tribunal could properly conclude” from all the evidence before it, meaning that the claimant had to “set up a prima facie case”. That done, the burden of proof shifted to the respondent (employer) who had to show that they did not commit (or is not to be treated as having committed) the unlawful act. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal could conclude that, on balance of probabilities, the respondent had committed an unlawful act of discrimination.

[175]The Supreme Court, in Hewage v Grampian Health Board

[2012] ICR 1054

(SC), held that Tribunals should be careful not to approach the Igen guidelines in too mechanistic a fashion, and the Court of Appeal has confirmed that approach under the EqA in its Judgment in Ayodele v Citylink

[2018] IRLR 114

(CA). The Supreme Court stated at paragraph 32 of their decision: “The points made by the Court of Appeal about the effect of the statute in these two cases could not be more clearly expressed, and I see no need for any further guidance. Furthermore, as Underhill J pointed out in Martin v Devonshires Solicitors

[2011] ICR 352

, para 39, it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.” Time limits

[176]Section 123 of the EqA deals with time limits. Section 123(1) provides that proceedings on a complaint under 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.

[177]Section 123(3) provides that(a) conduct extending over a period is to be treated as done at the end of the period, and

(b) failure to do something is to be treated as occurring when the person in question decided on it.

[178]The time limit in Section 123 is, however, subject to Section 140B, which provides for an extension of the time limit to facilitate conciliation before institution of Tribunal proceedings.

[179]Day A is the day on which the worker concerned complies with the requirement of Section 18A of the Employment Tribunals Act 1996 to contact ACAS in relation to the matter in respect of which the proceedings are brought, and Day B is the day on which the worker receives or is treated as receiving the ACAS certificate issued under Section 18A.

[180]In working out when the time limit expires, the period beginning with the day after Day A and ending with Day B is not to be counted. If the time limit set would, if not extended, expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.

[181]As to conduct which 'extends over a period' the Court of Appeal in Hendricks v Metropolitan Police Commissioner

[2003] IRLR 96

, sets out that the burden is on the claimant to prove, either by direct evidence or inference, that the numerous alleged incidents of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of 'an act extending over a period'.

[182]In South Western Ambulance Service NHS Foundation Trust (appellant) v King (respondent) -

[2020] IRLR 168

Chaudhury P in the EAT stated in the context of a continuing act at [36-38] “It will be necessary, in my judgment, for at least the last of the constituent acts relied upon to be in time and proven to be an act of discrimination in order for time to be enlarged.”

[183]Whether there is conduct extending over a period was considered to include where an employer maintains and keeps in force a discriminatory regime, rule, practice, or principle which has had a clear and adverse effect on the complainant - Barclays Bank plc v Kapur

[1989] IRLR 387

. The Court of Appeal has cautioned Tribunals against applying the concepts of 'policy, rule, practice, scheme or regime' too literally, particularly in the context of an alleged continuing act consisting of numerous incidents occurring over a lengthy period (Hendricks v Metropolitan Police Commissioner,

[2003] IRLR 96

[184]Where a claim is submitted out of time, the burden of proof in showing that it is just and equitable to allow it to be received is on the claimant (Robertson v Bexley Community Centre

[2003] IRLR 434

[185]Moreover the EAT stated in Dr Nicholas Jones v The Secretary of State For Health and Social Care

[2024] EAT 2

that: “It remains a common practice for those who assert that the primary time limit should not be extended to rely on the comments of Auld LJ at paragraph 25 of Bexley Community Centre (t/a Leisure Link) v Robertson

[2003] EWCA Civ 576

[2003] IRLR 434

, that time limits in the Employment Tribunal are “exercised strictly” in employment cases and that a decision to extend time is the “exception rather than the rule” as if they were principles of law. Where these comments are referred to out of context, this practice should cease. Paragraph 25 must be seen in the context of paragraphs 23 and 24”. The EAT stated that the propositions of law for which Robertson is authority are that the Employment Tribunal has a wide discretion to extend time on just and equitable grounds and that appellate courts should be slow to interfere.

[186]In any event this does not, however, mean that exceptional circumstances are required for the Tribunal to exercise its discretion and the test remains what the Tribunal considers to be just and equitable (Pathan v South London Islamic Centre

UKEAT/0312/13

[187]Even if the Tribunal disbelieves the reason put forward by the claimant it should still go on to consider any other potentially relevant factors such as the balance of convenience and the chance of success: Rathakrishnan v Pizza Express (Restaurants) Ltd

[2016] IRLR 278

, following Pathan v South London Islamic Centre

UKEAT/0312/13

and Szmidt v AC Produce Imports Ltd

UKEAT/0291/14

. We also considered the EAT’s decision in Habinteg Housing Association Ltd v Holleran

UKEAT/0274/14

holding that where there was no explanation for the delay tendered that was fatal to the application of the extension, which was followed. In Edomobi v La Retraite RC Girls School

UKEAT/0180/16

in which the Judge added that she did not “understand the supposed distinction in principle between a case in which the claimant does not explain the delay and a case where he or she does so but is disbelieved. In neither case, in my judgment, is there material on which the Tribunal can exercise its discretion to extend time. If there is no explanation for the delay, it is hard to see how the supposedly strong merits of a claim can rescue a claimant from the consequences of any delay.”

[188]Per Langstaff J in Abertawe Bro Morgannwg University Local Health Board v Morgan

UKEAT/0305/13

(18 February 2014, unreported), a litigant can hardly hope to satisfy that burden unless he provides an answer to two questions (paragraph 52): ''The first question in deciding whether to extend time is why it is that the primary time limit has not been met; and insofar as it is distinct the second is [the] reason why after the expiry of the primary time limit the claim was not brought sooner than it was.''

[189]In Wells Cathedral School Ltd (2) Mr M Stringer v(1) Mr M Souter

(2) Ms K Leishman: EA-2020-000801 the EAT did not directly address those authorities but stated that, in relation to the issue of delay, “it is not always essential that the tribunal be satisfied that there is a particular reason that it would regard as a good reason”.

[190]In Rathakrishnan there was a review of authority on the issue of the just and equitable extension, as it is often called, including the Court of Appeal case of London Borough of Southwark v Afolabi

[2003] IRLR 220

, in which it was held that a Tribunal is not required to go through the matters listed in s.33(3) of the Limitation Act, in the context of a personal injury claim, provided that no significant factor is omitted. There was also reference to Dale v British Coal Corporation

[1992] 1 WLR 964

, a personal injury claim, where it was held to be appropriate to consider the plaintiff's (claimant's) prospect of success in the action and evidence necessary to establish or defend the claim in considering the balance of hardship. The EAT concluded “What has emerged from the cases thus far reviewed, it seems to me, is that the exercise of this wide discretion (see Hutchison v Westward Television Ltd

[1977] IRLR 69

) involves a multi-factoral approach. No single factor is determinative.”

[191]That said, the Limitation Act checklist as modified in the case of British Coal Corporation v Keeble includes as possible relevant factors: i) the relative prejudice to each of the parties; ii) all of the circumstances of the case which includes: iii) The length and reason for delay; iv) The extent that cogency of evidence is likely to be affected; v) The cooperation of the respondent in the provision of information requested, if relevant; vi) The promptness with which the claimant had acted once she knew of facts giving rise to the cause of action, and vii) Steps taken by the claimant to obtain advice once she knew of the possibility of taking action.

[192]In Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

the Court of Appeal held: “First, it is plain from the language used ("such other period as the employment tribunal thinks just and equitable") that Parliament has chosen to give the employment tribunal the widest possible discretion.”

[193]That was emphasised more recently in Adedeji v University Hospitals Birmingham NHS Foundation

[2021] EWCA Civ 23

, which discouraged use of what has become known as the Keeble factors, in relation to the Limitation Act referred to, as a form of template for the exercise of discretion. Complaints under the EqA and

Remedy

[194]Section 120 of the EqA provides that an Employment Tribunal has jurisdiction to determine a complaint relating to a contravention of Part 5 (work) of that Act and, subject to the time limit provisions of Section 123, as detailed above, are subject to the remedies set forth in Section 124 of the EqA, if an Employment Tribunal finds that there has been a contravention of the EqA.

[195]In that event, the Tribunal may, as per Section 124(2),(a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate;

(b) order the respondent to pay compensation to the claimant; and

[196]In terms of Section 124(6) of the EqA, the amount of compensation which may be awarded under Section 124(2)(b) of the EqA corresponds to the amount that could be awarded by the County Court under Section 119 of the EqA and, as per Section 119(4) of the EqA, an award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).

[197]The Tribunal is empowered to award interest under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (SI 1996/2803), and we also considered Section 207(a) of the Trade Union and Labour Relations Consolidations Act 1992. We took into account the ACAS Code of Practice on disciplinary and grievance procedures as a relevant Code of Practice. Submissions

[198]The respondent’s representative and the claimant provided written submissions after the conclusion of the evidence, and they supplemented those by way of oral submissions. We fully considered both parties’ written and oral submissions in reaching our decision. They are referred to where relevant.

[199]The claimant made reference to sections 13 and 136 of the EqA in her written submissions. She also said the Tribunal should refer to the law mentioned in the EAT’s Judgment in respect of her appeal. We read the EAT’s judgment fully and considered the authorities cited therein prior to making our decision in this case.

[200]The respondent’s representative referred a number of additional authorities, including but not limited to the following:200.1 Allegations at 2(b) (allegations at what was said in the return-to-work meeting on 23 January 2020) were added by way of amendment at the Preliminary Hearing on 16 September 2019 and accordingly the date of the presentation is treated as the date of the amendment: Galilee v Commissioner of Police for the Metropolis

[2018] ICR 634

(see the headnote at 634F and paragraph 109(a) at 667E of Galilee).

200.2 Knowledge of disability does not mean knowledge that a particular individual has a named condition. Knowledge of disability means knowledge of the facts constituting a disability as a matter of law: i.e. knowledge of the fact that an individual has a physical or mental impairment which has a substantial and long-term adverse effect on that individual’s ability to carry out normal day-to-day activities ([36] of Gallop v Newport City Council

[2014] IRLR 211

). Discussion and Decision

[201]On the findings of fact which are made and having applied the law to those facts the Tribunal’s findings on the matters contained in the list of issues are as follows.

[202]In coming to our decision in this case, the Tribunal has carefully reviewed and analysed the whole evidence before the Tribunal, both in terms of witness evidence, and within the various documents to which we were referred at the Final Hearing. Issue 1 - Was the claimant a disabled person within the meaning of section 6 of the Equality Act 2010 at the material time or times?

[203]The list of issues at page 21 of the Hearing Bundle states “the claimant says she was a disabled person by reasons of Lyme disease and Babesiosis co-infection. Her symptoms included weakness, flu-like symptoms, some neurological problems and pain in the back, knee, hips, arms, and fingers”.

[204]At the outset of the Hearing the respondent’s counsel confirmed that the respondent conceded that the claimant had a disability within the meaning of section 6 of the EqA during the material dates relating to the claimant’s claim, namely 17 January 2019 until 01 February 2019. It was accepted that the claimant’s conditions had a substantial adverse effect on the claimant’s day-to-day activities and that they were long term.

[205]We noted from the evidence in the claimant’s disability impact statement and the documents we were referred to, that the claimant states that she was diagnosed with Babesiosis in September 2018 and Lyme disease in 2016, and that they have significantly affected her daily routine activities, and both her personal and work life.

[206]On the doctor’s statement dated 17 September 2019 there are details of the claimant’s diagnosis of Babesiosis (Lyme disease co-infection) and the start of treatment date is recorded as 28 September 2018. This also details the claimant’s symptoms experienced between September 2018 and Summer 2019 and states at the bottom of the page, “The above-mentioned symptoms differ in intensity at the daily basis.”

[207]Therefore, considering the above matters, including the respondent’s concessions and the totality of the evidence, we accepted that the claimant was disabled within the meaning of section 6 of the EqA by reason of Lyme disease and Babesiosis coinfection at the material time (namely between 17 January 2019 and 01 February 2019). Issue 2 – Was the claimant subjected to the following treatment? Issue 2(a) Sarah Brewer failed to respond to the claimant’s email sent on or around 17 January 2019 informing Ms Brewer of the Claimant’s condition (despite the claimant’s request for a response).

[208]The claimant explained in her written submissions that she advised the respondent that she did not have a disability when she had applied for work with the respondent and that her symptoms activated in September 2018 (the doctor’s statement dated 17 September 2019 at page 249 of the Hearing Bundle records symptoms experienced by the claimant from September 2018).

[209]Ms Brewer was not made aware of the details of the claimant’s disability up to (and including) 17 January 2019. Ms Brewer believed that the claimant was attending Poland in order to receive medical treatment for a skin condition (which we accept is what Mr Rolton had informed her). Ms Brewer facilitated these including by allowing the claimant to take longer weekends (also including the ability to use her annual leave and making up time later on). The claimant contends that Mr Rolton did not provide a witness statement or attend to give oral evidence. However, we were not told why he did not attend, whether he had been contacted, and in any event the claimant did not apply for a witness order. We did not consider it appropriate to make any adverse inferences from Mr Rolton’s non-attendance in the circumstances. Moreover, we reached our findings and decision on the basis of the witness evidence and the documents to which we were referred.

[210]On 24 December 2018 Ms Brewer was sent a doctor’s leave note from the claimant which stated “Dg: Borelioza/Lyme Disease” and “The patient has been advised to rest-off work from 22.12.2018 to 14.01.2019.” This did not provide any further information about the claimant’s condition or disability. In any event, on 26 December 2018 at 8.48pm the claimant forwarded her email to the respondent’s HR team advising “I tried to send below email to Sara, but she is on holiday, and she did not replied. Please, could read the below email?” The claimant sent an email to Charlee Hind on 28 December 2018 following up her emails.

[211]There was no further correspondence between the claimant and Ms Brewer or the claimant and the respondent’s HR team between 28 December 2018 and the period during which the claimant was on sick leave (up to 14 January 2019).

[212]The claimant returned to work on 14 January 2019. The claimant explains that Ms Brewer was not at work that day.

[213]On 17 January 2019 the claimant sent an email to Ms Brewer (copied to the respondent’s HR team) at page 174 of the Hearing Bundle. She referred to a conversation on the previous day relating to her sick note. She stated, “I know that there are some problems with accepting it even if it is written in English” and that as the UK was still in the European Union the doctor’s note should be fully accepted.

[214]Ms Brewer did not respond to that email in writing. However, we accept Ms Brewer’s evidence that she responded to the claimant verbally on the same day, on 17 January 2019, and that she advised the claimant that she would need to address her queries directly with payroll. We set out in our observations above the reasons why we accepted Ms Brewer’s evidence relating to this matter.

[215]We considered the claimant’s submission that Ms Brewer discriminated and wrote in her witness statement that the claimant’s note was written in Polish, and she never even wanted to look at it and read it until 28 May 2020. Firstly, it was a matter for payroll whether they accepted the claimant’s doctor’s note (and not Ms Brewer). Secondly, we do not find it unusual in the event that the respondent’s payroll team chose to question the content or format (or to seek further details) of a doctor’s note that is not in a standard UK format. In any event the doctor’s note was accepted by payroll and by the time the meeting took place on 23 January 2019, the matter was resolved.

[216]We note that the claimant contacted payroll and her sick pay issues were resolved, and accordingly, she received her SSP entitlement.

[217]Therefore, we did not find that Ms Brewer failed to respond to the claimant’s email sent on or around 17 January 2019 informing Ms Brewer of the claimant’s condition (despite the claimant’s request for a response). That email did not include details about the claimant’s condition, but it referred to the claimant’s doctor’s note (and we summarised the content of that doctor’s note above).

[218]The claimant’s allegation as set out at issue 2(a) is therefore not well-founded. Issue 3 - If so, was this less favourable treatment on the grounds of the claimant’s own

[219]We considered whether the failure to send an email response amounted to less favourable treatment. In circumstances in which Ms Brewer had a conversation with the claimant after having received her email on 17 January 2019 (as set out above), we do not find that the failure to send an email response amounted to less favourable treatment.

[220]Ms Brewer advised the claimant to contact the respondent’s payroll team to resolve her queries, the issues were resolved, and accordingly, Ms Brewer followed the respondent’s standard requirements.

[221]In any event, if we are wrong to so find (and in the event we accepted the claimant’s account of this incident), we did not accept that Ms Brewer’s failure to respond to the claimant’s email dated 17 January 2019 was in any sense whatsoever connected with the claimant’s disability.

[222]The respondent’s representative points out that the Tribunal would need to be satisfied that Ms Brewer would have answered an email from a hypothetical comparator. In these circumstances a hypothetical comparator is someone who is not a disabled person but:(i) had the same sickness absence as the claimant;

(ii) was relying on the same medical certificate(s)/doctors’ letter(s) as the claimant; and

(iii) asked the same questions and sent the same emails as the Claimant about her sick note and/or pay during absence.

[223]We considered the claimant’s contention that Ms Brewer was not satisfied with the form of the claimant’s medical evidence covering her period of sickness absence. We have set out our findings in relation to this earlier in this Judgment. Had we accepted that Ms Brewer expressed dissatisfaction with the claimant’s medical evidence (as asserted by the claimant), we would not have concluded that this would have shown that Ms Brewer failed to respond to the claimant’s email correspondence because of disability.

[224]We accepted that Ms Brewer did not have knowledge of the claimant’s disability at the material time (we have set out the circumstances of this above). Even if we had found that Ms Brewer had knowledge of the claimant’s disability at the material time, we were not satisfied that there was evidence to show that Ms Brewer did not reply to the claimant’s email sent on or around 17 January 2019 because of disability. Time limits – issues 4 and 5 (relating to issue 2(a))

[225]The respondent’s representative contends that the claimant’s claim which was presented on 30 May 2019 (ACAS Early Conciliation having taken place between 25 April 2019 and 24 May 2019) is out of time. It is averred by the respondent that any act or omission that took place prior to 26 January 2019 is, on the face of it, out of time.

[226]In the circumstances, and in circumstances in which we did not find that the claimant’s remaining allegations were well founded, we did not find that the claimant’s allegation referred to at paragraph 2(a) of the list of issues was part a continuing act.

[227]In terms of whether it is just and equitable to extend time, we considered that there was no good or satisfactory reason put forward by the claimant in terms of why her claim was not presented in time. The claimant stated that she received legal advice at a late stage. It is not clear whether (and if so, when) the claimant received the appeal outcome letter. The claimant could have taken steps to inform herself about time limits including by undertaking online research and/or by seeking legal advice at an earlier stage in the process. We considered the fact that the claimant and Ms Brewer had prepared witness statements in relation to this matter. In the event that we did not extend time, the claimant could still pursue her in time complaint. Having weighed the relative injustice and hardship to the claimant and the respondent, we decided not to extend time on a just and equitable basis.

[228]Accordingly, the claimant’s complaint in terms of issue 2(a) was presented outside the time limit set out in the EqA, we decided not to extend time on a just and equitable basis and it is therefore dismissed. In any event, if we are wrong to so find, we also considered that the allegation set out at issue 2(a) was not wellfounded and accordingly we would have dismissed the direct disability discrimination complaint insofar as this relates to issue 2(a) on the basis of the evidence we read and heard (for the reasons we set out earlier in this Judgment). Issue 2(b) At a meeting around the end of January 2019 Sarah Brewer told the claimant (i) That she would not accept her GP’s medical note

[229]The claimant refers to her Return-to-Work meeting on 23 January 2019 with Ms Brewer in her written submissions in relation to this complaint.

[230]The claimant says in terms of her evidence that Ms Brewer said at that meeting that she would not accept the GP medical note because the letter was not in an English template and the claimant told her that the payroll team had already accepted it. She advises that Ms Brewer did not seem happy about this, but she did not comment on it any further.

[231]Ms Brewer disputed the claimant’s account of that conversation. Ms Brewer stated that she ticked the relevant box on the Return-to-Work form to confirm that the claimant was paid SSP for her absence and also this had been confirmed to her. She ticked the Bradford score box which was a relatively new system relating to absence management, and she took no further steps in relation to the claimant’s absence.

[232]We accepted Ms Brewer’s account of that meeting which was credible and consistent. We note that her account is supported by the Return-to-Work form completed at page 291 of the Hearing Bundle and signed by both Ms Brewer and the claimant. The sick pay issue was ultimately resolved, and this is supported by the content of the documentary evidence. Considering the evidence before us, we did not accept that Ms Brewer was not happy after the claimant informed her that payroll had resolved the sick pay issue.

[233]We further note the respondent’s contention that this allegation was not included in the claimant’s ET1 Form and that Employment Judge Jones heard and granted an application for permission to amend allowing the claimant to include this allegation at the Preliminary Hearing on 16 September 2019.

[234]Therefore, we did not accept that the alleged event set out at issue 2(b)(i) had taken place in terms of our findings.

[235]We did not find that this allegation was well founded. In any event, we did not consider that the issue relating to the claimant’s sick pay and Ms Brewer’s response at that meeting (on the basis of our findings of fact) amounted to less favourable treatment.

[236]Furthermore, we did not accept that this was in any way whatsoever connected with the claimant’s disability. Ms Brewer simply enquired about the position relating to the claimant’s sick pay and recorded that the matter had been resolved on the Return-to-Work form. Issues 4 and 5 – time point (relating to issues 2(b)(i) and 2(b)(ii)

[237]On the face of it, these complaints were presented outside the time limit set out at section 123(1)(a) of the EqA taking account of the date of the complaint and the dates of ACAS Early Conciliation.

[238]As we set out above, the respondent’s representative submits that the allegations at 2(b) (allegations at what was said in the return-to-work meeting on 23 January 2020) were added by way of amendment at the Preliminary Hearing on 16 September 2019. As a result the date of the presentation of these claims (introduced by way of amendment) is treated as the date of the amendment: Galilee v Commissioner of Police for the Metropolis

[2018] ICR 634

(see the headnote at 634F and paragraph 109(a) at 667E of Galilee).

[239]In the circumstances (and in circumstances in which we did not find that the claimant’s remaining allegations were well founded), we did not find that allegations 2(b)(i) and 2(b)(ii) formed part a continuing act.

[240]In terms of whether it is just and equitable to extend time, we considered that there was no good or satisfactory reason put forward by the claimant in terms of why her claim was not presented in time. The claimant stated that she received legal advice at a late stage.

[241]The respondent’s representative points out that the claimant confirmed in evidence that she considered this conduct was discrimination at the time they occurred (and not later).

[242]It is not clear when (or whether) she received the appeal outcome letter. The claimant could still pursue her in time complaint. We considered that Ms Brewer and the claimant prepared witness statements about these matters. Having weighed the relative injustice and hardship to the claimant and the respondent, we decided not to extend time on a just and equitable basis.

[243]Accordingly, the claimant’s complaints in terms of issues 2(b)(i) and (ii) were presented outside the time limit set out in the EqA, we decided not to extend time on a just and equitable basis and they are therefore dismissed. In any event, if we are wrong to so find, we also considered that the allegations set out at issue 2(b)(i) and (ii) were not well-founded and accordingly we would have dismissed the claimant’s direct disability discrimination complaints insofar as they relate to issues 2(b)(i) and (ii) on the basis of the evidence we read and heard for the reasons we set out in this Judgment. Issue 2(b)(ii) At a meeting around the end of January 2019 Sara Brewer told the clamant (ii) Asked the Claimant if she was not physically but mentally Ill

[244]During the meeting on 23 January 2019 after the claimant confirmed to Ms Brewer that she had achilleas tendonitis, the claimant says in her evidence that Ms Brewer suggested that the claimant was “not physically but mentally ill” because she had “too many illnesses for such a young age.”

[245]Ms Brewer denies making these comments to the claimant. She explains that she had been carrying out return to work interviews as a manager for many years, that she was trained to explore if there are any underlying issues, and therefore, she asked the claimant during the meeting whether there were any underlying issues including welfare issues. We found her evidence relating to this matter and the conduct of that meeting to be credible and consistent.

[246]Her evidence is consistent with her notes recorded on the Return-to-Work form at page 293 of the Hearing Bundle which state “I have outlined my concerns regarding the high number of absences, and asked if there are any other underlying issues, including welfare issues, Joanna has stated “no”.

[247]The respondent’s submissions note that the claimant did not complain about this comment in her letter of appeal (following dismissal) sent to the respondent and she did not raise this complaint until much later when the claimant’s counsel made an application to amend to add this allegation at the Preliminary Hearing on 16 September 2019.

[248]During the claimant’s oral evidence, the claimant referred a number of times to the lack of interest or care shown to any reasons for her sickness absence. She felt that the respondent should have taken further steps relating to this. On the other hand, the claimant states that at the meeting on 23 January 2019 Ms Brewer asked her how she felt physically and the claimant further states “I was in pain but I told her I was not; she also asked about the details of my illness. I felt that some of these questions were too intrusive.” In her oral evidence the claimant suggested that the meeting was very brief and she was not asked about the details of her conditions by Ms Brewer.

[249]In the circumstances, we preferred the evidence of Ms Brewer and we found that the comment ascribed to her at allegation 2(b)(ii) was, on the balance of probabilities, not made to the claimant.

[250]We did not find that the comment ascribed to Ms Brewer at allegation 2(b)(ii) was made. In those circumstances, we have not proceeded to address issue 3 in relation to that complaint in the alternative as this was not necessary. Conclusions – issues 2(a) and 2(b)

[251]Accordingly, we decided to dismiss the claimant’s complaints relating to the allegations of direct disability discrimination recorded at issues 2(a) and 2(b) (i) and (ii). Issue 2(c) On or around 1 February 2019 Sara Brewer dismissed the Claimant

[252]We accept that the claimant was dismissed on 1 February 2019. It is not disputed that the claimant was advised that she was being dismissed during the probationary review meeting on 1 February 2019.

[253]We proceeded to consider whether the allegation of less favourable treatment namely the claimant’s dismissal was because of disability.

[254]By a letter dated 07 February 2019 the claimant was advised that having carefully considered the claimant’s performance and misconduct during her probationary period the respondent had taken the decision to dismiss her for the following reasons:(i) Failure to follow procedure/management instruction

(ii) Concern regarding your honesty & integrity

(iii) Incorrect Records Keeping/Administration

[255]On the probationary assessment form dated 01 February 2019 the claimant’s performance was graded as “poor” in terms of quality of work, performance, communication, and attitude. In the general comments section there are four areas of concern identified in relation to the claimant following procedures/management instructions, a concern about honesty and integrity, a concern about incorrect record keeping/administration, and general feedback.

[256]The claimant submits that in order to show that there was direct discrimination, she relies upon her dismissal for seven false reasons. It appears that she was referring to the reasons provided on that form under “general comments”.

[257]We first considered the four incidents relating to following procedures/management instructions. Following procedures/management instructions

[258]Firstly, the claimant had entered incorrectly November 2018 overtime into the respondent’s Snowdrop system and not Quintiq (the new system). This was evidenced in the claimant’s email dated 07 December 2018 in which she accepted that all November 2018 overtime was recorded on Snowdrop (see page 298 of the Hearing Bundle). The claimant said she had not received adequate training. However, we find that the claimant received the same training as other team members. The issue had a significant impact on the respondent with over 165 payroll queries having been raised. The claimant did not escalate this issue to her line manager at the appropriate time.

[259]The claimant says she asked David Harris, and he decided that the claimant had to continue to record overtime on Snowdrop. The evidence did not support the claimant’s contention. Ms Brewer spoke to Mr Harris who denied that Mr Harris told the claimant to use Snowdrop (see page 315 of the Hearing Bundle). In addition, the claimant said Dean Ousby had witnessed the instruction (see page 298 of the Hearing Bundle), but Ms Brewer contacted Dean Ousby and he could not recall the claimant being told to use Snowdrop by Mr Harris.

[260]Secondly, inaccurate information about deployment was sent by the claimant to the respondent’s SECAMB client directly without being reviewed by the respondent’s operations team on 16 January 2019. The client responded by email on 16 January 2019 at 5.42pm stating, “As Im sure you are aware this is wholly unacceptable and if it remains the case, it will significantly breach the contractual KPIs expected.” The claimant claimed that she completed the schedule with the information she had and she did not want to fail to meet the deadline. Ms Brewer’s evidence in relation to this matter, which we accepted, was that she did not tell the claimant to send the schedule in the form that it appears at pages 287 and 288 of the Hearing Bundle. Ms Brewer maintained that the claimant was aware that the schedule needed to be checked by the respondent’s operations team prior to being sent to the client, and her email dated 17 January 2019 (see page 289 of the Hearing Bundle) confirms that she believed at the time that the claimant was aware of the need for the document to be reviewed. In the same email she stated that she had not finished plotting the bank shifts.

[261]Thirdly, on 24 January 2019 at 10.57am Ms Brewer had asked the claimant to update the forecast for the whole of February 2019 for the respondent’s SECAMB client and to ensure that she sent it to Ms Brewer only so that she could review and sign it off with Mark Glover and David Harris. At 5.12pm that day the claimant sent the February 2019 forecast for SECAMB to Ms Brewer and copied to Mr Glover and Mr Harris at the same time. The claimant said at the probation review meeting that she had been advised to send documents to Mr Glover and Mr Harris in the past. We did not consider this to be a reasonable explanation given the clear instructions from Ms Brewer (and the previous incorrect information that had been disseminated by the claimant).

[262]Fourthly, it was alleged that the claimant said verbally to a staff member that she would authorise a 12-day holiday. The allegation related to the email from Julie Hexter dated 01 February 2019 in which it was confirmed that she heard the claimant state as she walked away that she would authorise the 12-day holiday request. The claimant did not in fact authorise this. The claimant denied stating this. We considered that this allegation was made in good faith as per the email dated 01 February 2019. Honesty and Integrity

[263]This related to the claimant’s assertion on 07 December 2019 that Mr Harris gave her an instruction to enter the overtime for November 2019 payroll onto the respondent’s Snowdrop system. Following the investigations carried out by Ms Brewer (which we refer to above), Mr Harris advised that he did not give that instruction to the claimant. There was a genuine basis for Ms Brewer questioning the claimant’s honesty and integrity in the circumstances.

[264]The claimant states in her submissions that Mr Harris did not provide a witness statement or any email evidence. We noted Ms Brewer’s evidence in relation to her investigation of this matter pertaining to Mr Harris and also Mr Ousby’s email at page 309 in which he states he did not recall Mr Harris telling the claimant to continue putting overtime onto Snowdrop. The claimant suggested in her email dated 07 December 2018 that Mr Ousby had been present at the time in question. We considered that there was sufficient evidence to form the basis of the relevant concern held by Ms Brewer at the time (which we found were genuinely held concerns). Incorrect record keeping/administration

[265]On 31 January 2019 the claimant advised Ms Brewer that she added “ghost shifts” to three members of EMS staff on 03 January 2019 as she believed that they had not been paid correctly for their 25 and 26 December 2018 shifts. The claimant said that this was common practice, whereas Ms Brewer maintained that this was not part of the respondent’s processes. We heard and read a substantial amount of evidence in relation to this matter. Ms Brewer said in evidence (which we accept) that such an approach may suggest that there had been a breach in terms of the rules relating to the Working Time Regulations. Carly Bergado’s email dated 30 January 2019 does not support the claimant’s contention in relation to this allegation (that email was sent to clarify the position as Quintiq was a relatively new system). General Feedback

[266]In October 2018 Mr Harris complained that the claimant had been rude and discourteous towards him, whilst they had discussed staffing matters. Ms Brewer also referred to further feedback from Harrow staff in terms that the claimant was unhelpful. The claimant submits that Mr Harris did not provide a witness statement and she includes references to emails (including an email at pages 143-144 of the Hearing Bundle) as examples of her personal belief that she was not rude to Mr Harris and feedback from co-workers. Whilst there was no statement from Mr Harris, Ms Brewer recorded the concern raised by Mr Harris in the probation review (and the concerns relating to feedback from Harrow staff) and the claimant had an opportunity to address these. We find that these were genuinely held concerns that were raised and there were accounts from different sources. Conclusion on issue 3 - If so, was this less favourable treatment on the grounds of the Claimant’s own disability?

[267]We did not consider that the claimant’s dismissal was less favourable treatment because of disability in terms of section 13 of the EqA.

[268]We found that Ms Brewer’s reasons for dismissing the claimant which were set out in the probation assessment form dated 01 February 2019 and in the outcome letter dated 07 February 2019 were genuinely held concerns relating to the claimant’s poor performance and conduct during her probationary period. They were thorough and well evidenced considerations on her part. We noted that there were appropriate references in Ms Brewer’s witness evidence in support of a number of concerns that were raised.

[269]The respondent’s representative points out that although the claimant took issue with some of the concerns raised, Ms Brewer had listened to what the claimant said (see pages 317 to 320 of the Hearing Bundle). It is submitted on behalf of the respondent that the concerns raised by Ms Brewer about performance and conduct are specific and that Ms Brewer itemised and evidenced these concerns on the probationary assessment form (see pages 314 to 315 of the Hearing Bundle). Ms Brewer scored the claimant (see page 314 of the Hearing Bundle), and the respondent’s representative says she recognised her strengths as well as her weaknesses. The claimant was invited to a formal meeting and told she was entitled to bring a colleague or trade union representative (see page 305 of the Hearing Bundle). Ms Brewer had a meeting with the claimant with a member of the respondent’s HR team present before making the decision to dismiss (see pages 317 to 320). It is further submitted on behalf of the respondent that in very general terms this is not consistent with any suggestion that Ms Brewer fabricated the performance concerns as a “front” for a discriminatory dismissal (to the extent this is suggested by the claimant).

[270]The claimant in her submissions repeatedly referred to rumours and gossiping that Ms Brewer wanted to dismiss her, and she was “hunting” on her to do it. The claimant asserts in broad terms at paragraph 23 of her witness statement that throughout her employment with the respondent, there were constant rumours and gossiping regarding her dismissal. No details of any alleged rumours or gossiping were provided. We did not have before us any evidence to show that there were any rumours and gossiping. Moreover, we did not find that there was any evidence to show that Ms Brewer was “hunting” the claimant or that the claimant was being targeted by Ms Brewer.

[271]The respondent’s representative submits that looking at the claim through the perspective of the burden of proof provisions at section 136 of the EqA:(i) There are no facts from which (in the absence of any other explanation) the Tribunal could decide that the respondent dismissed the claimant because of disability (section 136(2)); and

(ii) In any case the respondent has shown (and the Tribunal should find) that the respondent dismissed the claimant because of Ms Brewer’s performance and conduct concerns (and not disability) (section 136(3)).

[272]We do not accept on the evidence before us that the real reason for the claimant’s dismissal was her disability or that this was evidenced at the claimant’s probation meeting. Although, it was suggested in the claimant’s submissions that page 320 of the Hearing Bundle supported her contention in this regard, we noted that this was a reference to the last page of the probationary review meeting (and this did not show that the real reason for the claimant’s dismissal was disability). Accordingly, we did not consider that there were facts from which (in the absence of any other explanation) the Tribunal could decide that the respondent dismissed the claimant because of disability.

[273]In any event, we accepted (and the respondent had shown) that in all the circumstances Ms Brewer’s concerns were genuinely held concerns, and further, that they were the reason for the claimant’s dismissal.

[274]The claimant referred during the probation review meeting to the hours of work making her tired and medical treatment she was receiving in respect of Lyme’s disease, and that she had experienced weakness of the body and back pain. She asked the question “how do you see me in the Company after a few months?” Ms Brewer proceeded to set out a number of performance related concerns. After these concerns were raised, and discussed, the claimant was advised that her employment would be terminated. We are satisfied, on the basis of the evidence we have read and heard, that Ms Brewer’s reasoning relating to the claimant’s performance and conduct concerns and the reason why she terminated the claimant’s employment had no connection whatsoever with the claimant’s disability.

[275]Furthermore, we are satisfied that discrimination played no part whatsoever in terms of the decision to dismiss the claimant having considered all the circumstances. We accept that the respondent has shown that the claimant was dismissed because of genuinely held performance and conduct concerns.

[276]We note that despite having identified at the meeting on 23 January 2019 that the claimant’s sickness was a matter of concern, the respondent did not proceed to dismiss the claimant on the basis of sickness absence, or a reason related to her sickness absence.

[277]Furthermore, Ms Brewer was not aware of the details relating to the claimant’s disability until 23 January 2019 and the claimant’s specific issues she were experiencing with regards to her disability were not communicated by the claimant to Ms Brewer until the probation review meeting on 01 February 20219. The claimant did not attribute her performance and conduct issues on her disability, and in fact, she did not appear to accept that there any valid performance or conduct issues.

[278]The claimant did not allege that she had been subjected to direct disability discrimination by the respondent during her probation review meeting or in her letter of appeal. Time limits (issues 4 and 5) and conclusion on issue 2(c)

[279]We accepted that the claimant’s complaint that she was dismissed because of disability was presented to the Tribunal within the relevant statutory time limit. This was not challenged by the respondent.

[280]However, on hearing the evidence and considering the documents, we decided to dismiss the complaint that the claimant was dismissed because of disability (issues 2(c) and 3).

Conclusion

[281]The claimant’s complaints that she was subjected to direct disability discrimination are not well-founded and they are therefore dismissed. Respondent’s name

[282]At the conclusion of the evidence, the respondent’s representative advised the Tribunal that the respondent’s name should be changed to Community Ambulance Service Limited. We directed that the claimant should indicate in her submissions whether she agrees that the respondent’s name should be changed to Community Ambulance Service Limited, in the absence of which parties would need to make an application in order to change the respondent’s name in terms of the Tribunal’s records. The claimant did not agree and the claimant submitted that the respondent’s name should be changed to Ambulnz Community Partners Ltd. In the absence of any agreement, in the event that the claimant or the respondent wish to make an application to change the respondent’s name, this must be intimated to the Tribunal in writing and copied to the other party (together with any supporting evidence) by not later than 4pm on 22 February 2024, and any reply must be sent by the other party by not later than 4pm on 29 February 2024. Thereafter, any application will be referred to the Employment Judge for directions.