Ms A Eke v London Borough of Tower Hamlets: 3202100/2019

EMPLOYMENT TRIBUNALS

Case No 3202100/2019

Between

Ms A EkeClaimant

London Borough of Tower HamletsRespondent

Before

Employment Judge Jones

Ms Leibert (instructed by Solicitor) for claimant

Ms Chan (instructed by Counsel) for respondent

Date 12 September 2022

JUDGMENT

[1]The judgment dated 8 October 2021 is revoked.

[2]The claimant has leave to add a complaint of victimisation in respect of the respondent’s failure to review the tier of her ill health retirement pension.

[3]The claimant has leave to add a complaint of victimisation in respect of the respondent’s failure to consider the claimant’s appeal against the tier of her ill health retirement pension.

REASONS

[1]This was the claimant’s application for reconsideration of the judgment dated 6 October 2021 which was promulgated on 17 November 2021. The history of this matter is as follows:

[2]The claimant submitted a complaint of discrimination to the employment tribunal on 10 September 2019. It is agreed between the parties that this is a protected act.

[3]On 11 December 2019, the claimant submitted an appeal against the tier of her ill-health retirement. That appeal was submitted to the respondent. The appeal has been received and acknowledged.

[4]The respondent informed the claimant by letter dated 21 June 2019 that she had been dismissed, that her ill-health retirement had been granted at tier 3 and that a statutory review would be undertaken 18 months later to determine whether it remained appropriate for the benefit to continue to be paid. They also stated that they would be in touch with her about that in 2021. The claimant’s reasonable expectation was that she would not hear about the review until sometime in 2021.

[5]On 30 January 2020, the claimant chased her appeal in an email to Ms Harcus of the respondent. She also made a stage II written complaint about the progress of her appeal to Neville Murton on 19 March 2020. On 26 April 2020, the claimant emailed the respondent corporate director about her appeal but had no response. On 18 October 2020, the claimant received an email from the respondent which stated that as the review was due in December 2020 and the appeal could take up to 6 months, they had decided that there was no benefit in hearing the appeal until after the review. The appeal was effectively put on hold.

[6]The claimant chased the appeal on 7 December 2020 and the review on 14 January and 17 January 2021. She spoke to Tim Dean who assured that it was being dealt with and that her contact details would be passed to Harjit Jandu. He also explained the process to her and gave her Ms Jandu’s contact details. The claimant was reassured. But by February, when she had heard nothing further, she asked her solicitor to act. On 16 February, Ms Liebert wrote to the respondent and requested an update on both the appeal and review. It was at that point that the claimant informed Ms Liebert that she felt that neither the appeal nor the review was being dealt with and that she believed that she was being subjected to detriment as victimisation making a protected act.

[7]By letter dated 8 April 2021, the claimant applied to the tribunal for leave to add complaints of victimisation in relation to the respondent’s failure to conduct both the review and her appeal against the decision to award her ill-health retirement at tier 3. The tribunal gave the claimant the opportunity to put in writing further grounds in support of the application and to explain the timing of it, and the respondent to set out why it objected to the application.

[8]In its opposition to the application, in a letter dated 2 August 2021, the respondent focused on the strength of the complaints of victimisation and whether it was likely to succeed rather than the time point. In respect of the review, Ms Bowes confirmed that the respondent accepted that any complaint with respect of the failure to carry out the review of the pension tier would be in time, as this had yet to be resolved. However, the respondent submitted that there could not be a detriment in respect of the review as a claimant was receiving a pension. The respondent opposed the addition of the failure to consider the appeal against the ill-health retirement tier on the grounds that it was out of time because time should start to run in October 2020. The respondent submitted that time should not be extended. Law

[9]Rule 72 of the Employment Tribunals Rules of Procedure 2013 gives the tribunal power to reconsider its judgements. The tribunal can confirm, revoke or vary the original decision.

[10]In considering the written and oral submissions from both parties, the Tribunal was aware of the principles set out in Selkent Bus Company Ltd v Moore

1996 ICR 836

, which confirmed that in considering whether or not to grant amendments, a tribunal must consider the nature of the proposed amendment, the applicable to time limits, and the timing and manner of the application. In the particular point about time limits is captured in this quotation from Mummery J ’If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provision’.

[11]Section 123 of the Equality Act 2010 stipulates that proceedings on a complaint such as this must not be brought after the end of the period of 3 months starting with the date of the act to which the complaint relates, or such other period as the employment Tribunal thinks just and equitable. Subsection (3) states that failure to do something is to be treated as occurring when the person in question decided on it.

[12]In deciding whether it is just and equitable to extend time where a complaint is brought outside of the applicable statutory time limits, the tribunal must consider the principles set out in the case of British Coal Corporation v Keeble

[1997] IRLR 336

and section 33 of the Limitation Act 1980; including the length and reasons for the delay, the extent to which the cogency of the evidence is likely to be affected by the delay, the promptness with which the claimant acted once she knew of the facts giving rise to the cause of action, the extent to which the party sued cooperated with any requests for information, and the steps taken by the claimant to obtain professional advice once she knew of the possibility of taking legal action.

[13]Both parties referred the Tribunal to the Presidential Guidance on General Case Management (2018), which, at Guidance Note 1 on amendments states that where there is such an application, a hearing may be necessary to decide whether to allow an amendment. The claimant felt that the time limit issue should not have been considered on the papers but at a hearing where the parties could attend and make representations. The claimant has had that opportunity today and made oral representations at this hearing.

[14]The respondent opposed the application today. It considered that the application to add a complaint regarding the appeal and review were both out of time and had little prospects of success and should therefore not be allowed. Reconsideration

[15]The claimant application for reconsideration was considered at today’s hearing. Having heard submissions from both sides, the Tribunal concluded follows:

[16]The application could be divided into two parts. The review and the appeal. The original claim did not contain a complaint of victimisation and made no complaint about the claimant’s ill-health retirement pension. This is therefore an application to amend to add new complaints. The review

[17]Even though she was told that the review could be conducted in December, the claimant had originally been told in the letter of dismissal to expect to be contacted about the review in 2021. Therefore, it would not be until 2021 that she could be expected to start to consider that the respondent had made a decision not to conduct the review.

[18]The claimant could not have brought that complaint in 2020, (at the same time as her existing complaints) because in June 2020 she was advised that the review would not be conducted until at least 18 months had passed and that she would be contacted in 2021 about it.

[19]This tribunal did not have evidence on whether, as submitted, the failure to review the pension tier could not be considered to be a detriment to the claimant. The tribunal heard no evidence on the amount that the claimant is paid at the present tier and how much/what level she feels would be more appropriate for her to be paid. It is the respondent’s case that the tier is set based on medical evidence and that it has no choice but to accept the medical recommendation. It submitted that the claimant could not prove that there was a causal connection between her protected act and the failures about which she complains. I was persuaded of that when I considered this on the papers but on further consideration, it is my judgment that those are matters for the final hearing, after both parties have been given an opportunity to produce evidence and the matter is explored further. I was reminded that even if the respondent takes the medical opinion into account, the claimant was told that Ms Jandu or someone in her position would need to instruct the medical professional and and may also advise or make recommendations. The respondent’s part in the process is not clear.

[20]Taking all those factors into consideration, it is this tribunal’s judgment that the application to add a complaint of victimisation in relation to the respondent’s failure to conduct a review of the claimant’s ill-health retirement pension tier is within time.

[21]The claimant would be prejudiced if she was not allowed to bring it. The tier had still not yet been reviewed at the time of this hearing. It was clear that she was had never abandoned this matter and that she acted as soon as it was clear that it was not going to be addressed.

[22]It is therefore this Tribunal’s judgment that the judgment of 6 October should be revoked to allow the claimant to bring a complaint of victimisation in relation to the respondent’s failure to review its decision on the level of the claimant ill-health retirement. The appeal

[23]The claimant submitted her appeal against the ill-health retirement tier in December 2019. That appeal was in time and has been acknowledged by the respondent.

[24]There was no set date by which the appeal should have been conducted although it is likely that it should have been done within a reasonable time after submission. In its objection to the claimant’s application to amend the respondent submitted that time should start to run from October 2020. In the hearing Counsel submitted that time should start to run from December 2020.

[25]It is this Tribunal’s judgment that up until February 2021, the claimant had every reasonable expectation that the appeal was going to be dealt with. In response to her emails in January 2021, the emails in January failed to produce a substantive response or the appeal. Previously she had been told that it was likely to take 6 months and that the respondent would not do it before the review. It was reasonable for her to conclude that the respondent had moved the date and that until she had the review, she should not expect the appeal. It was in February, after her chasing emails failed that she spoke to her solicitor about it. The respondent’s response to Ms Liebert’s email led the claimant to consider that the respondent may have made the decision not to conduct the review or consider her appeal. Up until then she was given the names of the officers who were dealing with it and had correspondence with officers who reassured her that it was being dealt with.

[26]The chasing correspondence does not move the date but is helpful in determining when the claimant could reasonably have concluded that the respondent had made a decision not to address her appeal.

[27]In this Tribunal’s judgment, there was no set date for the appeal. It was not set for either October or December. In its letter of 18 October 2020, the respondent did not say that it would definitely address the appeal in December. It told her that it would not do so until after the review, which was due in December 2020, as the appeal was a longer process, taking around 6 months. It is this Tribunal’s judgment that the application was not out of time and the claimant can amend her claim to add a complaint that the decision not to address her appeal was an act of victimisation.

[28]If it is out of time, it is also this Tribunal’s judgment that it is just and equitable to extend time for the following reasons:

[29]The claimant suffers from severe mental health issues, having been diagnosed with unspecified, nonorganic psychosis and has been a litigant in person for most of this litigation. As both aspects of this application were omissions rather than acts, it would have been difficult for the claimant to work out when time started to run in order to issue her complaints in time. On the day of the hearing the respondent informed the Tribunal that a decision on the claimant’s appeal and possibly the review of her ill-health retirement level was imminent, but it still had not been done. That was a considerable period of time after the claimant’s correspondence in early 2021 and the respondent’s timeline of 2021, when she was told to expect to be contacted about it. if that included the appeal then that was also a considerable period of time after the original target date of December 2020.

[30]The claimant did not delay after her correspondence with the respondent in January/February 2021. She acted promptly by speaking to her solicitor about it who wrote to the Tribunal soon after to seek the amendment.

[31]The balance of hardship would be against the claimant if she were not allowed to bring this complaint. She still, in February 2022 has not had any substantive response to her application for an appeal or the statutory review of the level of her ill-health retirement. It is likely that the level of her retirement pension has an impact on her finances, which is why she is pursuing it.

[32]Taking all those factors into consideration, it is this Tribunal’s judgment that if the application to amend is outside of the three month time limit, then it is just and equitable to extend time so that the complaint was presented within time when the claimant made her application on 8 April 2021.

[33]It is this Tribunal’s primary judgment that the complaint that the respondent’s failure to consider the claimant’s appeal against the decision to award her Tier 3 ill-health retirement is an act of victimisation, is within time.

[34]The Tribunal grants the claimant leave to add both the complaint about the failure to conduct the review and the failure to address her appeal as acts of victimisation; to her case.

[35]This matter is in Tribunal today and so the Tribunal conducting the hearing can make the necessary case management orders to enable this matter to be added to the hearing.

FINDINGS OF FACT

[36]The claimant responded on 8 July 19 stating she would have no objection in principle to the tier offered for ill health retirement and, following discussion with Mr Kridos, she was unlikely to appeal this. However, she maintained that she wished to address her grievance as part of a severance agreement. Ms Erysthee’s response the following day thanked the claimant for her confirmation that she would not be appealing against the Tier 3 award and stated that she was unclear what the claimant meant about severance agreement: because the claimant’s employment would be terminated on ill health retirement, her payments on termination would comprise, pay in lieu of notice, outstanding annual leave and commencement of pension payments.

[37]The 10-day deadline for appeal against termination of employment due to incapacity, such as following a recommendation of ill health retirement, is prescribed by the Respondent’s sickness management procedure. Whilst Ms Erysthee seems to have believed that this was also the deadline to appeal against the tier, this was not the case. The applicable period was 6 months from the date of notification of benefits, as made clear by Mr Dean to the claimant on 16 November 19. On 27 August 19, the Tier 3 benefits were explained to the Claimant by Mr Jandu, Pensions Officer.

[38]On 31 October 19, the claimant wrote to Mr Dean signalling her intention to appeal against the award of tier 3, stating she believed she should have been awarded tier 2 and asking for further information on the basis for the award and procedure for challenging it. This information was provided later the same day by Mr Dean. In cross-examination the claimant accepted Mr Dean had been helpful to her.

[39]The claimant appealed in accordance with the procedure on 11 December 19.

[40]By this time, the person to whom she had addressed the complaint, who in addition to being Divisional Director of HR & OD was also a Trustee of the Pension Fund, was undergoing treatment for bladder cancer and was absent until March 20, although she did some work intermittently. Therefore, the individual did not immediately respond to the appeal although she did, when the claimant emailed on 30 January 20 chasing it, acknowledge the appeal in an email of 4 February 2020 and state it was being dealt with.

[41]The claimant chased again on 5 March 20, having received no further update. She stated that if there was no response within 14 days, she would escalate her complaint to Stage 2 of the Dispute Resolution Procedure. No response was forthcoming and the claimant submitted her Stage 2 appeal on 19 March 20 to Neville Murton, Corporate Director of Resources. The claimant sent this by post the same day. She received no response and so emailed Mr Murton on 7 April 20 to which she received an automatic reply stating that Mr Murton was working remotely and heavily involved in the Covid response. He stated he was reviewing emails but prioritising key requests. We accept it is unlikely he would have seen the Stage 2 letter because it was posted to the office. Consequently, the claimant sent her Stage 2 complaint again on 26 April 20 in largely identical terms, save for reference to a failure to reply to her first letter.

[42]At this point HR was very much involved with matters connected to the pandemic including ensuring essential service provision and dealing with considerable staffing issues arising out of the pandemic. The Respondent accepts the claimant’s appeal should have been given attention but regrettably it was overlooked.

[43]By June 20 however, the Pensions Team had contacted the Respondent’s OH Provider, HML, with a view to progressing the appeal.

[44]HML then wrote to the Pension Officer, Harjit Jandu, on 23 June 20 to advise that they did not see any benefit of progressing the appeal of the Tier at that point as it could take longer than 6 months to do so and would clash with the Tier 3 review. HML were incorrect in their email of 23 June 20 when they advised Mr Jandu that the review of the tier would be December 20. In fact, the review ought to have taken place in February 21, which is 18 months after the claimant’s pension had been in payment. However, no one at the Respondent appears to have noticed this error or disagreed at the time.

[45]The claimant emailed Mr Jandu 17 January 21, noting that she had still not received an outcome from her appeal and asking for an update on the statutory review which she also believed was to take place in December 20. The claimant chased a response to this email on 17 January 2 but received none.

[46]On 23 February 21, HR contacted the Pensions Team to clarify how to progress the review which was by that time due. There appears no response at that point. and it was only on 16 July 21 that Mr Jandu emailed HML to chase both the appeal and the review of the Tier. On 19 July 21 HML confirmed that they had forwarded the matter to their clinical team and would be back in touch when they have received a response.

[47]On 6 October 21, the Claimant’s solicitor chased the outcome of her review and appeal by email to HR. There was a response the same day from HR saying that they were awaiting advice.

[48]There appears to have been a change of portal system at HML and the claimant’s documents were resubmitted on the new portal in Oct 21 by the Pension Officer. It was confirmed that at that time, HML had not commenced the review.

[49]In November 21, HML contacted the Claimant to sign a fresh consent form to allow them to obtain a report from her GP. She did not initially do so as she had already signed a consent form in May 19; however, she eventually provided a fresh consent form on 16 February 22 and HML asked for a GP report on the same day. On 2 March HML chased the GP surgery who said they had not received the consent form and it was resent the same or next day.

[50]On 21 March 22, the GP requested payment for the report by cheque. HML’s process specified payment by bank transfer and so HML contacted the GP asking for bank details. Bank details were provided and payment was made on 4 April 22; however, the GP surgery notified the following day that payment had not been received. The surgery then confirmed on 7 April 22 that they had provided incorrect bank details to HML. Before HML would make a second payment they required a refund of the first payment. That was done on 12 May 22 and a further payment was made to the correct account on 16 May 22. HML was still awaiting the report as at the final date of this hearing. THE LAW Unfair Dismissal

THE LAW

[51]Pursuant to s94 of the Employment Rights Act 1996 (ERA), an employee is entitled not to be unfairly dismissed by his employer.

[52]Section 98 ERA provides:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— (a) relates to the capability of the employee, … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. …

[53]It is for the employer to prove its reason for dismissing the claimant and that it is a potentially fair reason. Thereafter, the Tribunal will determine the question of fairness pursuant to s98(4) ERA with no burden of proof on either party. 54 ‘A reason for the dismissal of an employee is a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee.’ (Abernethy v Mott, Hay and Anderson

[1974] IRLR 213

[55]The question in each respect, and in respect of the sanction of dismissal, is whether the employer acted within the range of reasonable responses (Sainsbury’s Supermarkets Ltd v Hitt

[2003] IRLR 23

); the Tribunal must not substitute its own view of what the employer should have done (Iceland Frozen Foods Ltd v Jones

[1983] ICR 17

). The dismissal process must be considered in its entirety. To that end, a defective appeal might in all the circumstances render unfair a dismissal which to that point had fallen within the range of reasonable responses (West Midlands Co-operative Society v Tipton

[1986] AC 536

); alternatively, the appeal might cure a dismissal which to that point had been unfair (Taylor v OCS Group Ltd

[2006] ICR 1602

[56]Pursuant to s118 ERA, where a tribunal makes an award for unfair dismissal it shall comprise a basic award and a compensatory award.

[57]The Tribunal may nevertheless reduce both basic and compensatory awards to reflect the employee’s culpable and blameworthy conduct. In respect of the compensatory award, the conduct must have caused or contributed to the dismissal (s123(6) ERA), and in respect of the basic award the conduct must have occurred prior to dismissal or notice of dismissal (if given) and it must be just and equitable to make a consequential reduction (s122(2) ERA). In Nelson v BBC (No.2) [1979] I.R.L.R. 346, the Court of Appeal clarified that blameworthy conduct could also include conduct that was ‘perverse or foolish’, ‘bloodyminded’ or merely ‘unreasonable in all the circumstances’.

[58]If an employee is unfairly dismissed by reason of a procedural defect, the Tribunal may make a reduction in compensatory award to reflect the chance that he would have been dismissed in any event, pursuant to s123(1) ERA and Polkey v AE Dayton Services Ltd. Unlawful Discrimination/Victimisation

[59]Pursuant to s13(1) EA, 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. Disability is such a protected characteristic.

[60]Section 6 of the Equality Act 2010 (EA) defines disability as a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. An effect of an impairment is long-term if it has lasted for or is likely to last for at least 12 months or is likely to last the rest of the affected person’s life. 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 treated as continuing to have an effect if the effect is likely to recur. The effect of medication is to be disregarded when assessing the effects of an impairment.

[61]Section 15(1) EA provides that a person(a) (A) discriminates against a disabled person

(b) (B) if (a) A treats B unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

[62]Pursuant to s20 EA, where, in particular, a provision, criterion or practice of the employer and/or a physical feature of the workplace, places a disabled person at a substantial disadvantage in comparison with persons who are not disabled then the employer is under a duty to take such steps as it is reasonable to have to take to avoid the disadvantage. However, an employer does not contravene the duty to make reasonable adjustments if he did not know and could not reasonably have known that the employee was disabled and about the substantial disadvantage.

[63]Consideration of whether the duty arises will require asking the following (applying Environment Agency v Rowan

[2008] IRLR 20

(modified to apply to the EA):63.1 whether there is a provision, criterion or practice applied by or on behalf of an employer; or

63.2 whether there was a physical feature of premises occupied by the employer; or

63.3 whether there was a need for an auxiliary aid;

63.4 the identity of the non-disabled comparators (where appropriate); and

63.5 the nature and extent of the substantial disadvantage in relation to a relevant matter suffered by the employee.

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

[65]Bringing proceedings under the Act and making an allegation (whether or not express) that a person has contravened the Act are both protected acts (s27(2) EA).

[66]Pursuant to section 136 EA, if there are facts from which the Tribunal could decide in the absence of any other explanation that a person contravened the provision of the Act, the Tribunal must hold that the contravention occurred unless the employer can show to the contrary.

[67]The leading case on the approach to be taken by Tribunals in discrimination cases remains Igen Ltd v Wong

[2005] IRLR 258

. In particular, it is important to bear in mind that employers would rarely be prepared to admit such discrimination, even to themselves, and that in deciding whether a claimant has proved a prima facie case, the Tribunal’s analysis would usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

[68]It is now settled law that the claimant must prove facts from which a tribunal could conclude in the absence of an innocent explanation that discrimination and/or victimisation (as the case may be) had happened before the burden shifts to the respondent to provide an innocent expiration for the acts in question (Adoyele v City Link

[2018] IRLR 114

[69]Considerable guidance has been given by the appellate courts to Employment Tribunal's on the circumstances in which it would and would not be appropriate to draw inferences in discrimination cases.

[70]It is insufficient for the claimant to show merely a difference in characteristic and a difference in treatment; there must be ‘something more’ for the burden to shift (Madarassy v Nomura International plc

[2007] IRLR 246

). Similarly, unfair or unreasonable treatment of itself is insufficient to shift the burden of proof onto the respondent Bahl v Law Society

[2003] IRLR 640

per Elias J at para 100, approved by the Court of Appeal at

[2004] IRLR 799

). CONCLUSIONS Unfair Dismissal

CONCLUSIONS

[71]We find that the Claimant was dismissed because she was unfit to continue in her employment and had accepted ill health retirement. That is a potentially fair reason for dismissal.

[72]The Claimant accepted that she was unable to return to work having been absent for over a year and also indicated that she did not intend to appeal against the offer of ill health retirement.

[73]The Claimant says the Respondent acted unreasonable for the following reasons: it did not inform and consult with her about the options available to her; she did not have a reasonable opportunity to appeal against the decision to terminate her employment; and, the Respondent provided insufficient information about the assessment of her ill health pension award.

[74]In respect of each of these we find as follows.

[75]The Respondent did make clear that the only viable option beyond accepting ill health retirement was dismissal on the grounds of capability. The Claimant accepted in evidence that to be the case.

[76]The Respondent on two occasions told the Claimant that she could register her intention to appeal within the 10 day deadline and provide full details later. The Claimant did not do so. It is correct to say that the Respondent did not provide the details required by the Claimant prior to the 10 day deadline for appeal against dismissal but had done so within the timeframe for appealing the Tier 3 assessment itself.

[77]However, the information she required related to the tier of ill-health retirement she was to receive. Therefore, this is an argument about the reasonableness of the terms of the dismissal rather than the dismissal itself which the Claimant accepted was inevitable.

[78]All in all, we are entirely satisfied that the decision to dismiss fell well within the range of reasonable responses. The Respondent was offering the Claimant what it reasonably believed to be the best possible outcome in the circumstances. For these reasons the unfair dismissal claim fails.

[79]Even if we had found that the Claimant’s dismissal was unfair, she would have inevitably have been dismissed by reason of ill health capability. To the extent that the process would have taken any longer, she had by then exhausted her entitlement to contractually sick pay and so did not suffer any financial loss. Disability

[80]The Respondent accepts that the Claimant was disabled at the material time because of a mental impairment (Psychosis). Direct Discrimination

[81]At no point was it suggested to any of the Respondent’s witnesses that they treated the Claimant the way they did because of the disability itself as opposed to as a consequence for something arising out of her Psychosis. In any event, we find the Respondent would have treated the same anybody who had been absent for the length of time the Claimant had with no prospect of return and for whom it had been agreed with their representative that progressing the grievance would have been detrimental to their health. Consequently, the direct discrimination claim fails.

[82]Discrimination Arising from Disability.

[83]The Claimant alleges that ill health retirement was imposed on her without consent. We find on the contrary that the Claimant agreed to ill health retirement having signed a consent form and subsequently having agreed not to appeal it. We do not accept this was unfavourable treatment in any way and it was considerably more favourable than the only other alternative which was capability dismissal.

[84]Even if the Respondent’s termination of the Claimant’s employment could be objectively considered to be unfavourable, we are entirely satisfied that she had been assessed by a medical professional as permanently unfit to return to her role and unfit for the time being of any gainful employment. In such circumstances we would have been satisfied that the treatment was objectively justified. Failure to Make Reasonable Adjustments

[85]Whilst we do not accept that the Respondent operated the PCP specifically referenced at paragraph 7.1 of Judge Allen QC’s annex of issues, we do find that the Respondent did have a practice of not keeping a grievance open indefinitely in circumstances where a complainant was unable to engage in the process. However, we find that the Respondent genuinely offered the Claimant to reopen her grievance when she was fit to do so and therefore find that she was not at any consequential substantial disadvantage.

[86]In any event, the proposed adjustment was to conduct an investigation into the grievance even though the Claimant was too unwell to attend work and take part in the process. It is entirely fanciful to suggest that to do so would have resulted in any meaningful conclusion to the grievance or indeed one satisfactory to the Claimant. Therefore, we do not consider that the proposed adjustment was reasonable.

[87]For completeness, we do not think it reasonable to keep the grievance live and in abeyance for an unspecified period of time. Others named in the grievance were entitled not to live in uncertainty. Victimisation

[88]It is accepted that the Respondent did not progress the Claimant’s appeal against her Tier 3 assessment and has not yet undertaken the 18 month review of her Tier. The Respondent also accepts that these are significant failings. Whilst we are unable to make any findings on what the outcome of either would be, we are satisfied that the Respondent’s failure to carry out its own procedures is in and of itself a detriment to the Claimant.

[89]The question is whether there was any significant causal relationship between those failures and the Claimant’s claim to this Tribunal. We can find no basis to say that there was. In other words, there is no ‘something more’. The Claimant did accept that the person to whom she sent her first stage appeal had been ill and that the pandemic had likely caused some disruption to the Respondent’s operations, and we find that it did. It is also relevant that the second stage appeal had been sent by post to an individual who had by then had started to work remotely. Thereafter, there are obvious administrative failures but nothing from which we can draw connection to the Claimant’s ET1. We also note that the latter 6- month delay was nothing whatever to do with the Respondent and for those reasons the victimisation claim fails.