Miss R Harkness v Holland & Barrett Retail Ltd: 3202128/2018

EMPLOYMENT TRIBUNALS

Case No 3202128/2018

Between

Miss R HarknessClaimant

Holland & Barrett Retail LtdRespondent

Before

Employment Judge Moor

Members

Mr P Pendle

Mr P Quinn

In person for claimant

Mr C Ludlow (instructed by counsel) for respondent

Date 3 November 2020

JUDGMENT

It is the unanimous judgment of the Tribunal that:

[1]The Respondent failed to comply with its obligation to make reasonable adjustments under the Equality Act 2010 in that:a. it failed to provide the Culver store with the additional staff hours and/or allocating an additional key-holder to avoid the risk of the Claimant lone working;

b. it failed to provide the Claimant with mentoring support.

[2]The complaint of constructive unfair dismissal is well-founded.

REASONS

[1]The Respondent runs a well-known retail business, selling health products in high street stores. It employs approximately 8,000 employees. The Claimant, Miss Harkness, worked at the Respondent from 30 October 2011 until her resignation on 27 June 2018. She worked latterly as a Store Manager.

[2]This case concerns whether the Claimant was entitled to treat herself as unfairly dismissed because of the Respondent’s conduct towards her and/or whether, if it knew she was a disabled person within the meaning of the Equality Act 2010 (‘EQA’), the Respondent failed to comply with any duty upon it to make reasonable adjustments for her.

[3]The Respondent admits that at the relevant time, the Claimant was a disabled person because she had the condition interstitial cystitis. At the end of the evidence, the Respondent also conceded that the Claimant was a disabled person because she experiences the mental health condition, Emotionally Unstable Personality Disorder. The Respondent denies that it knew or reasonably ought to have known that the Claimant was a disabled person at the relevant time. The Hearing Day

[4]At the outset, we explained the hearing day to the Claimant, who attended the Tribunal supported by her mother, Ms Harkness. The Employment Judge explained that we would have a comfort break half-way through the morning and afternoon and asked whether the Claimant needed any further adjustments to assist her. She said she may have to go to the toilet more frequently or urgently and we agreed that, if so, she would tell the Tribunal and leave quickly. This happened on one occasion during the hearing. We took more and longer breaks where necessary to allow the Claimant to compose herself

[5]By the third day of hearing Ms Harkness took over the representation of the Claimant’s case as she had become tired. We thank both of them and Mr Ludlow for the courteous and careful way in which they presented their respective cases.

Issues

[6]The issues were clarified at a Preliminary Hearing before EJ Jones on 28 January 2019, and, in certain respects, at our hearing. They are as follows (we retain the original numbering for ease of reference and identify where the issue is no longer pursued or has been conceded): Constructive unfair dismissal

[9]Was the Claimant dismissed? 9.2 Did the Respondent without reasonable and proper cause conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee? Specifically, did the Respondent breach the implied term of trust and confidence by any of the following, individually or cumulatively: - 9.2.1. Instruct the Claimant to continue trading after the sewage leak? 9.2.2. Remove all her stock, when the sewage leak was eventually cleaned up? 9.2.3. Inform the Claimant that the lift that had been previously designated as staff lift only, was now a goods lift only after the Claimant had got stuck in it? 9.2.4. Failing to replace the stock that had been removed so that she was likely to lose out on stock bonuses? 9.2.5. Take away the Claimant’s staff and hours so that she was going to be trading alone and informing her that she would be a lone trader knowing that the condition of interstitial cystitis requires her to have regular access to the toilet and that in order to do so she would have to close the store which would affect trading? 9.2.6. Informing the Claimant that she could not be transferred to head office according to her request but that she would have to apply for a job and go through the normal recruitment process in order to be able to move from her store? 9.2.7. Refusing to transfer the Claimant to head office to any job even with a pay cut, to enable her to get away from the situation at the store? 9.2.8. Requiring the Claimant to work in a store which where the nearest toilet was two floors up and the only way to access the toilet quickly was in a lift which had initially been designated as staff lift and had been used by members of management or when they attended the store and was lately designated as a goods lift only, after the Claimant got stuck in it? 9.2.9. Informing the Claimant in a meeting with her area manager that she would have to deal with deliveries on her own which could amount to as much as 18 cages on any one day? 9.2.10. Requiring the Claimant to work with cages that were sometimes broken and without being flagged as being so, so that she cut her hand on one of those cages? 9.3. If yes to (13.2) then: 9.3.1. Did the Claimant resign in response to the breach? 9.3.2. Did the Claimant resign promptly in response to the breach or wait too long before resigning and in so doing, waive the fundamental breach and/or affirm her contract of employment? 9.4. [Not pursued] Disability 9.5. [Now conceded] Failure to make reasonable adjustments 9.6. Did the Respondent apply the following PCPs (provision, criterion or practices) that caused her substantial disadvantage because of her disabilities: 9.6.1. Requiring the Claimant to carry out the duties of her role at the Colchester store? 9.6.2. Advising her that she would be losing more assistant hours in store, which would mean that she was likely to be operating/trading in store alone. It is the Claimant’s case that this put her at a substantial disadvantage because with the condition, interstitial cystitis, she needs to go to the toilet regularly and urgently on every occasion. The toilet at the store she was managing at the time was two floors up from the shop floor. If she was in store alone she would need to shut the shop every time she went to the toilet, which would mean a loss in sales and an inability/difficulty in achieving her targets. The Respondent were aware of the Claimant’s disability but had made no adjustment to accommodate it. 9.6.3. Informing the Claimant was informed that her supervisor was going to be demoted and she would have to deal with deliveries on her own which could be as much as 18 cages at any one time. Again, it is her case that this would put her at a substantial disadvantage because of her interstitial cystitis. 9.6.4. The Claimant reported a sewage leak from the floor above into the store and the Respondent wanted her to continue trading before the matter was cleaned-up. The Claimant considered this to be a health and safety risk. When the local authority health and safety office insisted that she close the store, a clean-up team came to clean away the waste. They also took away her stock and failed to replace it. It is the Claimant’s case that this would have made it difficult for her to achieve stock bonus. It would have made it impossible for her to rectify the situation. 9.6.5. The Claimant needed to use the lift to get to the toilet and the lift had been used as an ordinary lift by the Claimant and visiting managers since she moved to that store. Following her being stuck in the lift and calling for assistance on her telephone as there was no phone in the lift, the Respondent then informed her that it should have been designated as a goods only lift. If she had remained in store this would have meant that she could not use the lift to go to the toilet upstairs. 9.6.6. Another PCP applied was whenever the Claimant tried to get support from her manager, Nick Gold with matters that she was dealing with or things that affected her health, he advised her that it was HR’s problem and that it was nothing to do with him. He did not try to help her.

[10]The Claimant asked the Respondent to make an adjustment which was to transfer her to head office to do any job that was available as the store at Colchester no longer suited her for the reasons set out above. The Respondent refused to enable that to happen.

[11]Instead, the Respondent told her that she needed to apply for positions that became available.

[12]The Respondent denies treating the Claimant less favourably because of her disability or breaching any duty to make reasonable adjustments.12.1.1 Did the Respondent apply those provision, criterion or practices to the Claimant?

12.1.2 Did the application of those provisions, criterion or practices put disabled persons at a substantial disadvantage in relation to their employment?

12.1.3 Was the Claimant put to that substantial disadvantage?

12.1.4 Did the Respondent know, or could the Respondent have been reasonably expected to know, that: -

12.1.5 The Claimant was disabled; and

12.1.6 The Claimant was likely to be placed at the disadvantage referred to above.

12.1.7 It is the Respondent’s case that it had asked the Claimant to provide consent for an occupational health report but consent had not been provided as at the time of resignation.

12.1.8 It is the Claimant’s case that the Respondent was aware of her mental health condition in 2016 as she was off sick for some time and when she returned to work, there was a return to work meeting at which she shared her discharge information and medical information with the managers. 12.2 Would the following have been a reasonable step for the Respondent to take to avoid the disadvantage: -

12.2.1 Transferring the Claimant to fill an existing vacancy, at head office, including the possibility that the Claimant should be placed at the same, lower, or higher grade without any competitive interview that is reasonable under the circumstances?

12.2.2 Was there an existing vacancy at the time? The Claimant relies on the vacancy of Management Development Trainer.

12.2.3 Was there also a vacancy for store support, which the Claimant had done, before which she was willing to do on this occasion?

12.2.4 Would it have been reasonable in the circumstances to transfer the Claimant to the office to work without application? It was not clear whether the Claimant was saying that she ought to have been transferred without interview.

12.2.5 Extra support. (We clarified, during the hearing, that this was the adjustment to mirror the PCP at issue 9.5.).

Findings of Fact

[13]Having read and heard the evidence of Miss Hewitt, Miss E Twin, Mrs E Cepparulo, Mr N Gold, Miss M Ellwood, and having read the unchallenged evidence of Mr G Pearce, and having considered the documents referred to us in the evidence, we make the following findings of fact. Policies and Procedures

[14]At the relevant time the Respondent’s sickness absence policy was set out in its ‘Staff Rules’;14.1 Paragraph 7(a) provided: If you are unable to work because of illness… you must notify your … ASM on the first day of absence at least one hour before your normal starting time.

14.2 Paragraph 7(e) provided: The Company reserves the right to insist on a medical examination by its own nominated doctor or to obtain a medical report from the member of staff’s Doctor in order to validate a sickness absence claim, should this be thought necessary.

[15]Contrary to Mrs Cepparulo’s evidence, the policy did allow HR to seek the opinion of an occupational health provider. Miss Ellwood stated that her practice would be to go to the GP first and ask for a bespoke occupational health request after that if it were necessary.

[16]The Respondent’s Equality Policy (322) at the time did not refer to any positive obligation that might arise to make adjustments in respect of disabled employees. And the Respondent’s training of managers on obligations towards disabled employees was limited. Of training on disability Mr Gold said had not received ‘much’.

[17]The Respondent’s personnel files were paper based. There appears to have been two: one held centrally and one in each store. After a sickness absence, a return to work meeting was held and a Return to Work form filled out in triplicate: one copy for the employee, one to be kept on the store file and one sent to Head Office for the central personnel file. Summary of Work History and Management Structure

[18]The Claimant started her employment in October 2011 as a part-time supervisor. She was promoted to become a Store Manager at Witham in July 2013.

[19]In June 2016, the Claimant worked in a troubleshooting role across the region, covering for Store managers’ absences and deputising for her manager on occasions. During this period she was ‘based’ for pay purposes at the small Pelhams store in Colchester. She also worked some shifts there. The Culver Walk store opened in November 2016 and the Claimant became its manager.

[20]An Area Sales Manager (‘ASM’) managed Store Managers within a region. The Claimant’s first ASM was Mr Bristow with whom she got on well. Ms WilsonSaunders took over and the Claimant made a grievance about her in July 2016. This was resolved and thereafter they worked well together, becoming friends. From April 2017-late August Mr Solanki then Ms Beldycka covered the ASM role until Mr Gold was appointed. The ASM was managed by the Regional Sales Manager (‘RSM’), Ms Still.

[21]Ms Cepparulo was initially the regional HR contact before she was promoted in January 2018, when Miss Ellwood took over the HR role in the region. The administrative functions of HR were undertaken by ‘people services’.

[22]As well as being a Store Manager, until August 2017, the Claimant was a Team Leader for a cluster of stores within the region. This was not a paid role but it had some status. The ASM selected Team Leaders. They were a link between a cluster of stores and the region’s ASM. They would pass on information from the ASM to other store managers, and assist the ASM in tasks, if necessary, for example, searching for cover for other stores. Grievances

[23]During her time working with the Respondent, the Claimant raised three grievances about colleagues. We have referred to the one about Ms WilsonSaunders, her ASM, above. Another, against a co-worker, was also resolved. Mr Bristow suggested to the Claimant not to grieve as much if she wanted to progress. This did not stop her from making a third grievance. Her evidence to us was that she would bring a grievance if she felt it was necessary. Disabilities

[24]The Claimant has had the condition interstitial cystitis (‘IC’) since about 2015. From the written and oral evidence of the Claimant, we find that she experienced the following symptoms: 24.1. pain on filling and voiding of the bladder, which reduced after an operation when Mr Bristow was her manager; 24.2. the need to urinate more frequently; 24.3. on occasions, a stress-induced urgent need to urinate.

[25]We do not accept the Respondent’s interpretation of the text the Claimant sent to Mr Gold (210). We find she informed him that her bladder flare-up had not affected her back for a couple of years, not that she had not had a bladder flare up at all in that time.

[26]The Claimant wears incontinence pads every day. She always carries spare underwear with her in case of leaks. The Claimant organised her working day to deal with her IC symptoms where she could. When a delivery had to be taken she made sure to go to the toilet beforehand to reduce the risk of having an accident during delivery.

[27]What did the Respondent know and when about the interstitial cystitis? 27.1. We accept the Claimant’s evidence that, once diagnosed, she informed Mr Bristow of her condition of interstitial cystitis. He had reorganised the rota to enable the Claimant to go to 6 weeks of treatment post-operatively. 27.2. We find it likely that, in her discussions with Mrs Cepparulo set out below, on one occasion she had to go to toilet urgently and told Mrs Cepparulo then about her condition. The Claimant was open about her medical conditions and we find would not have held this back. 27.3. In January 2018, the Claimant told Mr Gold she was experiencing a flareup of a bladder issue (210). In their March 2018 discussion about a reduction in staffing hours, when the prospect of some lone working came up, she told Mr Gold she had to go to the toilet more frequently because of her cystitis. 27.4. During the telephone welfare meeting with Miss Ellwood on 18 May 2018 the Claimant informed her that ‘reasonable adjustments to support cystitis needs’ had stopped. Mental Health

[28]On 26 April 2016 the Claimant experienced a nervous breakdown. She was hospitalised after having suicidal thoughts, panic attacks and low mood (332). She was discharged on 13 May 2016. The discharge sheet (84 and 284) records a diagnosis of ‘EUPD F60.31’. The Claimant knew at the time that this meant ‘Emotional Unstable Personality Disorder’. Her GP letter of 4 October 2019 confirms this as the diagnosis (332). The cause of this breakdown was not workrelated.

[29]The Claimant was prescribed propranolol, climaval, zopiclone, fluoxetine, pregabalin and clonazepam for this condition. Having described low mood, tearfulness, difficulty sleeping and eating, her GP explains in the 4 October 2019 letter that, without this medication, the Claimant would have difficulty with normal day-to-day activities. In her impact statement to the Tribunal the Claimant states that her medication means her conditions are ‘manageable’ (58).

[30]The Claimant’s evidence, that we accept, is that her mental health condition meant that she experienced ‘stress induced anxiety’ (57). If she was stressed she was more vulnerable to panic attacks.

[31]What did the Respondent know and when about this condition? 31.1. It received sick notes for the period immediately after the breakdown stating ‘anxiety and depression’. 31.2. On returning to work, the Claimant met with Ms Still, RSM, on 14 June 2016. They signed a Return to Work form that records the reasons for the absence as ‘anxiety/depression’, that the symptoms were ‘on-going – on anxiety medication’, and that the Claimant was continuing to take this medication. On balance, given the Claimant’s clear evidence and the lack of clear evidence that anyone at the Respondent read her personnel file in full, we find that she provided Ms Still with the discharge sheet. 31.3. Mrs Cepparulo knew at the time the Claimant had experienced a ‘complete breakdown’ and had been hospitalised because her friend sent an email of explanation. Mrs Cepparulo knew initially that the Claimant had a ‘mental health condition’ in a general way. 31.4. After her return to work, the Claimant developed a rapport with Mrs Cepparulo and they discussed the mental health condition in more detail a series of conversations. Mrs Cepparulo, by her own description, became the Claimant’s ‘confidante’. The Claimant told her what medication she was taking. Mrs Cepparulo saw that the Claimant had ‘emotional outbursts’ and was extremely emotional about work matters. She thought at the time that this was associated with her mental health condition. She understood the Claimant was vulnerable to anxiety. Mrs Cepparulo referred, in their conversations, to her sister who was a mental health practitioner. She understood that the Claimant had serious mental health issues. Despite this knowledge Mrs Cepparulo did not seek the Claimant’s consent to obtain advice from her GP or advice from an occupational health provider. In hindsight she thinks she should have obtained GP reports. 31.5. We find it likely that, given their closeness and the Claimant’s openness, the Claimant did tell Mrs Cepparulo of the diagnosis of EUPD. And, if Mrs Cepparulo had read the personnel file carefully enough, she would have seen the abbreviation for the diagnosis in the discharge sheet. 31.6. The hard-copy personnel files do not appear to have been read as a matter of course on handover. There was no effective procedure put in place by which new managers could be informed of the Claimant’s mental health. Mrs Cepparulo explained this by saying she assumed Ms WilsonSaunders would continue to be the ASM. This is unrealistic. As an HR professional she well knew that managers move on; they relocate; they get promoted. 31.7. Mrs Cepparulo knew that the Claimant had had a further period of sickness for anxiety in May/June 2017 because the Claimant told her she was on a phased return from it when they met to discuss deployment in 31.8. In late August 2017, Mr Gold received a brief verbal handover from the acting ASM who herself had only held the post briefly. If he was not at the time, he ought to have been briefed about what the Respondent knew about the Claimant’s illnesses. 31.9. In early October 2017, Mrs Cepparulo conducted a mediation meeting between the Claimant and Mr Gold (see below). It was agreed that the Claimant would use a ‘safe word’ on the occasions that she felt she was upset by Mr Gold’s approach and this would remind Mr Gold to adjust. Mrs Cepparulo saw this as a good mechanism to reduce stress on the Claimant and therefore her anxiety. From this point, Mr Gold understood that the Claimant had a mental health condition including a vulnerability to stress/anxiety. 31.10. Mrs Cepparulo did not brief Miss Ellwood about the Claimant’s mental health when she moved on in January 2018. On 18 May 2018, the Claimant told Miss Ellwood in the welfare call that she experienced anxiety/stress (245). Before Culver

[32]The Claimant had been a successful store manager before going to the Culver Walk store, a matter that Mrs Cepparulo accepted in evidence. Before Mr Bristow left he selected the Claimant as the store manager of Culver Walk on merit. This was a step-up for the Claimant: Culver was to be one of the Respondent’s top 100 stores; it was a ‘concept store’ carrying additional attractions for customers: a pick and mix; a beauty bar; and oils and vinegars. The Culver store’s annual turnover was approximately £1 million. It was by far the biggest store she had managed.

[33]There was a delay in Culver opening and during this time the Claimant did about 2 shifts per week of lone working all day at the Pelhams store. The toilet was on the third floor. She did not raise a complaint or grievance about this. She was not as stressed at Pelhams as she was later at Culver. It was a very small store and easy to close up if she needed to use the toilet. She was waiting for the Culver store to open and did not want to make a fuss. Culver

[34]The Culver store opened in November 2016. Initially it had 9 members of staff, not all full-time. The Claimant’s responsibilities as store manager included recruitment, training, managing stock and staff.

[35]In the first year of its operation, the Respondent set targets for the Culver store (known as KPIs) by reference to other stores of a similar size and location. It is not in dispute that Culver did not perform to those targets in its first year of trading.

[36]The staff toilet at Culver was on the first floor: accessible by 2 flights of stairs or initially a lift. Sick Leave 2017

[37]In May/June 2017 the Claimant had a further period of about 5 weeks’ sickness absence because experiencing anxiety and depression. She returned on a phased return as advised by her GP. First Hours Reduction

[38]In June 2017 Mrs Cepparulo met with the Claimant to discuss how a required reduction in staff hours was to be implemented at the store. Staff deployment was agreed between the two.

[39]The Claimant found Mrs Cepparulo to be supportive in this and their meetings and conversations before Mrs Cepparulo’s promotion. Mrs Cepparulo lived locally to the store and would pop in and see how the Claimant was getting on. She provided the Claimant with a sounding board, an outlet for stress and gave her support and guidance. In effect, Mrs Cepparulo was a mentor to the Claimant. Mr Gold as the New ASM

[40]Mr Gold was appointed ASM in late August 2017. This was his first ASM role. He was, by his own description, ambitious and driven.

[41]From the figures, he saw that Culver was not reaching its targets: it was in what was called the ‘red’ zone for all its KPIs.

[42]On 21 August 2017 Mr Gold sent out a new contact sheet. He had not met any of the managers at this stage. We do not accept the Claimant’s evidence that he only sent the sheet out after they had met in October, because this does not fit with the email date to which the contact sheet was attached. Mr Gold chose 4 Team Leaders on the basis of whose stores were performing well and geography. He did not contact the team leaders who were to lose that status beforehand to consult with them or inform them. The Claimant was no longer the Team Leader for her cluster of stores. This understandably caused her upset because the role carried some status.

[43]On the same day, 21 August 2017, the Claimant injured her finger on a broken plate on a cage used for the storage and delivery of stock (127). The accident report was filled out. Mr Gold contacted technical services to ensure the cage was red-flagged.

[44]Mr Gold’s first visited the store when the Claimant was on holiday. He made suggestions and gave tasks to staff about stock storage. He asked the team to put all the Claimant’s personal belongings in one place. He thought they represented a safety hazard and intended to ask her to move them. The Claimant was upset that Mr Gold did this in her absence. We can understand that and, in hindsight, so does he. They spoke on the telephone. The Claimant was upset. They agreed he would agree any changes with her first. He acknowledged in his evidence that he should have checked whether she was at the store before his first visit. Lift

[45]On 13 September 2017 the Claimant became stuck in the store lift with another colleague. In the long wait to be rescued she calmed the other colleague down. She contacted Mr Gold who was driving to Southend. He did not divert to Colchester but contacted another store manager, Gareth, on his mobile phone to call the fire brigade. They were late attending because Google maps did not have the correct latitude and longitude of the store. Contrary to his statement, Mr Gold did not keep in touch with the Claimant and her colleague while they were in the lift, but Gareth, whom he had contacted, did.

[46]On balance we find the staff had not been told that the lift was for goods only before the incident. They were only told afterwards and the Claimant was instructed to attach stickers to the lift button stating this.

[47]The Claimant complains that using the stairs took longer because she needed to use a touch pad on the door. The lift was called by a button and sometimes waited for depending on where it had been left when used for goods. On balance, as a matter of fact, we are not persuaded that there was more than a minor difference in the speed of accessing the toilet as between the lift and 2 flights of stairs via the keypad. Mediation between Mr Gold and Claimant

[48]Mr Gold made another visit to the store when the Claimant was present. This visit did not go well. She was still upset about his first visit. She perceived him to be critical of the store’s performance. We accept this was her genuine perception, but we also accept his evidence that he was making constructive suggestions for the improvement of the store’s performance rather than being merely critical. The visit culminated in the Claimant telling him to ‘fuck off’ and ‘stick his job up his arse’.

[49]On 28 September 2017 the Claimant emailed a complaint to Mr Gold copied to Mrs Cepparulo stating that she wanted to leave and was unhappy with his moving of her belongings and his criticisms.

[50]In response, Mrs Cepparulo organised a mediation meeting with the Claimant and Mr Gold, which took place on 2 October 2018. They each discussed their perceptions. She saw the Claimant was upset at how she perceived Mr Gold’s management. She saw Mr Gold was performance driven and perhaps not as personable as earlier managers. There was a frank discussion about mental health. The Claimant apologised for her abusive language. Mr Gold apologised for the actions on his first visit. They agreed to start afresh.

[51]Mr Gold understood that Claimant was vulnerable to stress or anxiety and he agreed at this meeting to work on tasks in store together.

[52]At this meeting they agreed that the Claimant would use a ‘safe word’ when she felt that she was becoming agitated or stressed as a result of Mr Gold’s management style. It was ‘help’ or ‘help me’. The idea is that its use would be a trigger for Mr Gold to rethink his approach. The Claimant used it in a What’s app message to him once. Mr Gold does not remember it being used. We agree with him that the choice of phrase was not a good one, as it could have been used in ordinary communication and was not sufficiently distinctive.

[53]The next day the Claimant sent Mr Gold an email and her tone was very much of a fresh start and renewed enthusiasm for the job.

[54]We accept Mr Gold’s evidence that after the mediation their relationship improved. The Claimant did not bring a grievance against him as she would have done if matters had been as bad as she suggested: she had experience of bringing grievances in the past that had resolved matters and was prepared to bring necessary grievances again. The tone of their texts and emails was professional and sometimes friendly.

[55]We also do not accept the Claimant’s evidence that Mr Gold did not respond to her requests for support. He promptly followed up her requests, for example relating to signage, Google, and the printer. The Claimant thanked him for his efforts. Indeed in relation to the problem of the effect upon her bonus from the stock her store had to take when Pelhams closed, Mr Gold fought her case with his managers, see page 162.

[56]After the mediation Mr Gold made about 6/7 full store visits between then and her sickness absence. This would amount to about 1 every month and makes sense for an ASM who was concerned about figures and performance. We therefore do not accept the Claimant’s evidence that these promised meetings did not occur. We accept his evidence that he walked the store with the Claimant, identifying particular aspects of best practice and that they would discuss how to drive sales.

[57]On balance we find that, in these first 6 months, Mr Gold, contrary to his evidence, had not assessed the Claimant’s performance as being poor enough to warrant a formal Performance Improvement Plan (‘PIP’). This is because in his assessment of her against the Respondent’s values in the ‘performance drive’ (C2), dated about November 2018, he found that she was meeting expectations in all ‘values’ except as to ‘agility’. What he did was seek to improve the store’s performance informally by his full store visits and set objectives for the Claimant in the performance drive (C2).

[58]We reject, too, Mr Gold’s suggestion, in his witness statement, that the Claimant had ‘falsified’ shrinkage levels. His explanation in his oral evidence was that after she left he discovered that stock management processes were not completed weekly or accurately and therefore skewed the shrinkage result. This may have been poor conduct by the Claimant, but it does not prove an intention to falsify.

[59]We do not accept Mrs Cepparulo’s evidence that staff said to her that the Claimant was never at the store. This is because there is no evidence that she followed this up as should would have done if she had heard such a serious allegation. We also reject her inference that the 15K increase in turnover since the Claimant left was significant. Once the Tribunal had established that the store’s annual turnover was £1million, then a £15,000 increase, while welcome, was not as significant as she sought to infer, being only 1.5%. Proposed Further Reduction in Staff Hours – Risk of Lone Working

[60]In March 2018, Mr Gold attended the Culver Store to discuss with the Claimant staff availability with a view to a further reduction of staff hours by 10 per week. (Mr Gold had successfully challenged a proposed reduction of 30 hours with his managers.) This reduction in hours raised the prospect of there having to be some lone working for about the first 30 minutes of the morning and for about the last 30 minutes of the day. Mr Gold remembers the Claimant raising the problems caused by her cystitis in that context. Having heard this, he did not explore how lone trading might be avoided at Culver. His solution was that the Claimant could close

[61]Mr Gold states, and we accept, that it was not necessarily the Claimant who would have to open and close the store and lone trade for the first period: it could have been another member of staff. The problem was that the other key holder, Ms Fairclough, was only part-time and therefore this did not remove the risk of the Claimant having to lone trade because there would be some days when Ms Fairclough was not working. It would not have made sense for the key holder to open the store and then not continue to work or to attend just to close the store.

[62]Mr Gold also accepted that there was a blind spot at the Culver store and that therefore closure would involve looking around the store to ensure there were no customers, then locking the door, then using the stairs to go to the toilet.

[63]Another problem raised by the reduction of hours was that deliveries might have to be done by one person. Mr Gold said that was not unusual and it was down to the manager’s discretion. The Claimant’s evidence in cross-examination was that she could take deliveries alone at Pelham without a problem. But her concern was whether she could do this at the Culver store where deliveries were larger.

[64]After the meeting, the Claimant contacted Mr Gold to say staff had not agreed to the changes in hours and it would have to go to consultation.

[65]In March 2018 the Claimant and Mr Gold disagreed over the obtaining of staff cover. They each shouted at one another about this. After which Mr Gold agreed with the Claimant’s suggestion that they should communicate by email. We observe the Claimant was succumbing to increased stress at this time.

[66]The Claimant tried to contact Mrs Cepparulo who was away, and in any event since January 2018 in a more senior HR role. She did not follow up the Claimant’s contact on her return. Sewage Leak

[67]On Wednesday 4 April 2018 it was the Claimant’s day off. The Claimant had, by chance, gone into the store and discovered that staff were dealing with a leak from upstairs. It turned out to be a leak of sewage from the library toilets. She sought Mr Gold’s help. The What’s App transcript records the communication between them. At 11.08 he asked what had happened. At 11.15 he said to the Claimant that if it was just a section of the store and could be cordoned off and they should to try to stay open (our emphases). But by 12.30 he informed her of the RSM’s instruction to close. He did not instruct the Claimant or her staff to clean up – the discussion between them was about when cleaners would arrive. In the meantime the Claimant called environmental health and that triggered Ms Still’s decision to close.

[68]The Claimant was unhappy with the way the cleaners handled matters.

[69]Mr Gold says, and we accept, that the normal procedure was followed for the damaged stock after the leak: the losses were put down as fridge-freezer losses and therefore did not affect the store’s KPIs. We are not satisfied therefore, that on resignation, the Claimant could have been sure that the lost stock would affect her bonus. Sickness Absence

[70]By early April 2018 the Claimant was experiencing increased symptoms of anxiety, including panic attacks. Her evidence is that she told Mr Gold on one or two occasions that this was happening. She recalls his reply was that it was not his problem but HR’s. He recalls her being ‘in a state’ in one call. He says he responded by trying to talk her through the day by focussing on one thing to relieve the overall pressure. On balance, save for his comment, we find that these were their genuine perceptions. We find the Claimant did call on one occasion in an anxious state. That Mr Gold probably did try to talk her through the day to help her focus on one thing but probably also said that she should speak to HR about her health concerns. We do not find that he is likely to have said that it was ‘not his problem’, that would not fit with the rest of his approach in that call.

[71]The Claimant’s mother had tried to send an email to Mr Gold to inform him of the Claimant’s planned absence from work but unfortunately misspelled the address and he did not receive it.

[72]On 9 April 2018 the Claimant sent Mr Gold a voicemail at 7.30am explaining that she was too ill with anxiety to attend work. He informed HR the Claimant was absent, without checking his voicemail. HR sent the Claimant an ‘AWOL’ letter 225, which states incorrectly that Mr Gold had tried to contact her and incorrectly that she had failed to contact him personally. HR asked her to contact him by no later than 10.00 on Wednesday 11 April otherwise her failure would be treated as evidence of her intention to terminate her contract. The Claimant did not immediately see this as it sent to her work email account.

[73]Upon picking up the voicemail later in the day, Mr Gold did not inform HR about it until the next day (233). He accepts he should have told them to withdraw the AWOL letter. In any event by the Wednesday the matter was resolved and the Respondent did not treat her as having terminated her contract.

[74]During this period of her ill health the Claimant moved to Loughborough for the support of her mother and to allow her mother to rent out the caravan she had been living in, in Essex.

[75]On 18 May 208, the Claimant had a welfare telephone call with Miss Ellwood. From the brief notes made of that meeting it is clear that she told Miss Ellwood that: 75.1. the role was becoming too demanding; 75.2. because of her cystitis she found lone trading difficult; 75.3. she would prefer a head office role; 75.4. she rejected Miss Ellwood’s suggestion of thinking about a less stressful role in store.

[76]By letter of 14 May 2018 the Respondent asked the Claimant to sign an enclosed GP consent form. She had not done this by the time of her resignation.

[77]On 18 May 2018 Miss Ellwood informed the Claimant that internal job vacancies were online and sent her the relevant link (249). Application for Role Management Development Trainer

[78]In May 2018 the Claimant applied for the role of Management Development Trainer. The Claimant accepts she was not best candidate. She thought she had potential to do this role because of her management experience and that she had been a teaching assistant in the past.

[79]Mr Pearce, director of training and development at the Respondent, reviewed her application and decided that the Claimant had no management development training experience and no ‘real’ training experience. We accept this evidence: it was unchallenged and understandable given how different a teaching assistant role is to the training and development of managers. We observe that, while the Claimant had management experience, she did not have the relevant level of training experience. Mr Pearce decided, therefore, that the Claimant did not fit the minimum role profile to be invited to interview. She was informed of the outcome on 19 July 2018, after she had resigned. Attempt to Organise Second Welfare Meeting

[80]The bladder operation the Claimant was awaiting, originally set for 29 May 2018, was postponed to the 12 June 2018. She remained off sick.

[81]On 4 June the Respondent invited the Claimant to a meeting on 26 June, at her home. They sent this letter to her address in Loughborough and confirmed within the letter that that was her current address. Miss Ellwood did not know whether the Loughborough correspondence address was the permanent address. The Claimant and Miss Ellwood, in emails on 6 and 7 June discussed the location and timing of this meeting. The Claimant did not want to meet at home, which she said would increase her anxiety and did not want to meet in store. She informed the Respondent that after she was recovered from her operation she would see if she could drive. In a further call between them on 19 June, the Claimant requested that the welfare meeting was cancelled, given her current location and the logistics of travelling. Miss Ellwood’s approach was to await the Claimant’s recovery and her consent to obtain GP information in order to progress a plan for return. Resignation

[82]On 28 June the Claimant resigned by email. Her reasons in it were the same reasons she gave in her evidence to us: that she was stressed by the Respondent’s behaviour towards her and lack of support; the failure to transfer her to a position in head office and requirement that she had to make applications; the suggestion that she seek a lower level position; and the prospect of lone trading and Mrs Cepparulo failure to respond to her email. In her oral evidence she explained the stresses in the store meant she realised she could not be a store manager. She thought Mrs Cepparulo not willing to talk to her. We accept these were the matters in the Claimant’s mind and the reasons for her resignation. Other Vacancies

[83]The Claimant says that when she looked at the link sent by Miss Ellwood, there were no suitable head office vacancies. She suspected there were other vacancies not advertised online, but there was no evidence one way or another to support this. Submissions Respondent’s Submissions

[84]Mr Ludlow submitted that the Respondent knew of the interstitial cystitis through Mr Bristow but that by 2018 she had not been symptomatic for 2 years, as her text evidenced, and that therefore she could not have been put at a comparative substantial disadvantage by her IC.

[85]He argued that lone working at Culver had not happened; therefore, no PCP had been applied. In any event, the rotas were in her hands and Ms Fairclough could have opened and closed. The Claimant herself identified her adjustment whereby before a delivery she would use the toilet and afterwards and this could equally have worked for the limited proposed lone working. In the alternative, being allowed to close the store was a reasonable adjustment.

[86]So far as the EUPD was concerned, the Claimant was apt to raise grievances and would have done so if this condition were hampering her ability to do her job, there was therefore, in relation to mental health, no PCP subjecting the Claimant to a substantial disadvantage. He acknowledged, that the Respondent was aware generally that the Claimant had a mental health condition of anxiety/stress.

[87]He argued the relationship problems with Mr Gold had been resolved by the mediation and there was no incident thereafter that could be described as a last straw. Mrs Cepparulo had offered support. Mr Gold had supported the Claimant in the full store visits; by responding to each of her requests promptly; by encouraging her to take time off when she informed him of the bladder issue; by jointly discussing the deployment in March; and by avoiding a formal PIP. These were all forms of reasonable adjustment, even if not identified as such at the time.

[88]He submitted Miss Ellwood could not have done more: the welfare telephone call went well. She asked for GP consent to find out more. She was seeking to organise a further meeting at which assistance to help the Claimant back to work could have been discussed.

[89]On issue 9.2.1 and 2 re the leak: there was no instruction to continue trading after the sewage leak. The What’s App transcript supported that and stock was replaced after the leak as per normal procedure.

[90]On issue 9.2.3 and 8: the lift issue was an accident and did not amount to a breach of the implied term. In order to ensure it did not happen again staff were not allowed to use the lift.

[91]On issue 9.2.4: lost stock was not going to affect bonus, which was discretionary.

[92]On issue 9.2.5: Mr Gold and Mrs Cepparulo supported the Claimant when reductions in staffing hours were required and the second change had not yet occurred.

[93]On issue 9.2.6 and 7: the Claimant had not requested a transfer and therefore there was no refusal. Miss Ellwood and she had discussed the idea of an alternative role, which the Claimant had refused. The Claimant had accepted there were no suitable vacancies at head office on the website and did not await the outcome of the job application she did make. The welfare process had not got to the stage of considering alternatives. Miss Ellwood, sensibly, wished to gather medical information from the GP first to better understand what the Claimant might be able to do.

[94]On issue 9.2.9 he argued that the Claimant was fully involved in reviewing the rota and Ms Fairclough could do the deliveries.

[95]On issue 9.2.10 there was no requirement to work with broken cages. He submitted the cage incident was an accident, which Mr Gold dealt with appropriately.

[96]Overall, none of these events even taken together, he argued, constituted a breach of the implied term. Claimant’s Submissions

[97]Ms Harkness, on behalf of the Claimant, made helpful submissions by reference to the issues. She argued overall that the Claimant’s position had become untenable due to a failure to support her.

[98]Ms Harkness contended that the Respondent knew about the Claimant’s disabilities or should have known. There was a massive failure of communication between managers and HR. New managers should have been briefed as to the Claimant’s conditions. For such a large company with likely many disabled employees, this was an important systemic failure.

[99]As for what reasonable adjustments could have been made in the Claimant’s case she argued Respondent: 99.1. should have allowed her to use the lift as an exception; 99.2. should have been offered more support; 99.3. should have transferred her to a suitable vacancy; 99.4. should have prevented her from lone trading.

[100]In relation to the leak, she argued the Claimant was only allowed to close the store after calling Environmental Health. There was insufficient managerial support over the sewage leak.

[101]In relation to the lift incident, she argued Mr Gold gave the Claimant no support during it: he could have diverted to the store on his way to Southend. The cages were a preventable accident.

[103]It was a health and safety risk to require her to do deliveries alone.

[104]Ms Harkness submitted it was wrong to require the Claimant to apply for a job. The Respondent was or should have been aware of her conditions for a long time and should therefore have been proactive about considering suitable vacancies.

[105]Overall the Claimant’s job became untenable and she was forced to leave. Law Unfair Dismissal

Law

[106]In some circumstances, when an employee resigns there might still legally be a dismissal (section 95(1)(c) of the Employment Rights Act 1996 (‘the ERA’). This is known as a ‘constructive dismissal’.

[107]An employee constructively dismissed when the employer has committed a really serious breach of contract.

[108]Here the Claimant relies on the implied term existing in all employment contracts ‘the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee’, see Malik v BCCC SA

[1998] AC 20

, 34H-35D (‘the implied term’). A breach of this implied term is always a very serious breach.

[109]The test of whether there is a breach of the implied term is objective, and not dependent on the employee’s subjective view.

[110]The Claimant also relies on the principle that a course of conduct can amount to a breach of the implied term: individual actions may not in themselves be sufficient but taken together may amount to such a breach. The last incident relied on does not need to be serious (a breach in and of itself), but it must contribute, however slightly, to the breach of the implied term, see Lewis v Motorworld

[1986] ICR 157

, and Omilaju v Waltham Forest LBC

[2005] ICR 481

[111]If there is a breach of the implied term the employee must show that she resigned, at least in part, in response to the breach, Nottinghamshire County Council v Meikle

[2004] IRLR 703

CA.

[112]After any very serious breach of contract the employee has a choice: either to affirm the contract and continue to work, or to accept the breach, resign and treat herself as dismissed. Delay in resigning after the breach is not, of itself, affirmation but, in an employment context, it may be evidence of an implied affirmation. This is because, by working and receiving a salary, the employee can be said to be doing acts consistent with further performance of the contract and therefore affirmation of it, see WE Cox Toner Ltd v Crook

1981 ICR 823

EAT. Equality Act 2010

[113]Under section 120 of the EQA the Tribunal has the power to decide a complaint relating to employment under Part 5. The complaint here is that the Respondent discriminated against by failing to comply with a duty to make reasonable adjustments, contrary to section 39(5), section 20-21, as read with Schedule 8. Disability and Mental Ill Health

[114]Although disability in this case is now conceded it is worth noting the following, because it may be relevant to our assessment of the Respondent’s knowledge of disability.

[115]Section 6 of the EQA provides: ‘A person (P) has a disability if—(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and longterm adverse effect on P's ability to carry out normal day-to-day activities… ‘

[116]Under section 6(5) of the EQA we are required to refer to any guidance published under that section where we think it relevant. In May 2011 the Secretary of State issued ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (‘the Guidance’).

[117]The Guidance at A5 states that mental impairment can include a wide variety of matters including ‘mental health conditions with symptoms such as anxiety, low mood, panic attacks, … unshared perceptions; … personality disorders;…’

[118]It is no longer necessary to establish that the mental impairment is a clinically wellrecognised illness. The term ‘mental impairment’ should be given its ‘natural and ordinary meaning’, and the Tribunal should use its ‘good sense’ to make a decision whether the Claimant is suffering from a mental impairment on the facts of each case: see Mummery J in McNicol v Balfour Beatty Rail Maintenance Ltd

[2002] EWCA Civ 1074

[119]Similarly, in J v DLA Piper UK LLP 2010 WL, Underhill P suggested (para 40) that, although it was still good practice for the Tribunal to state a conclusion separately on the question of impairment, there will generally be no need to actually consider the ‘impairment condition’ in detail: In many or most cases it will be easier (and is entirely legitimate) for the tribunal to ask first whether the claimant's ability to carry out normal dayto-day activities has been adversely affected on a long-term basis. If it finds that it has been, it will in many or most cases follow as a matter of common-sense inference that the Claimant is suffering from an impairment which has produced that adverse effect. If that inference can be drawn, it will be unnecessary for the tribunal to try to resolve the difficult medical issues.

[120]Paragraph 5 of Schedule 1 EQA provides ‘An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if:(a) measures are being taken to correct it, and

(b) but for that, it would be likely to have that effect. Measures include medication and aids. 121. ‘Substantial’ means ‘more than minor or trivial’, see section 212(1) EQA. Knowledge of Disability

[122]The duty to make reasonable adjustments does not arise if the employer did not know the Claimant was disabled. An employer cannot turn a blind eye to disability. In some circumstances the facts the employer does know about the employee will mean it would have been reasonable to find out more (sometimes known as ‘constructive knowledge’). If so, the Tribunal must ask itself what information such further enquiries would have revealed.

[123]The knowledge of the disability must be at the relevant time. It may be that at the outset there was no constructive knowledge, but as events occurred, there will come a time at which a Tribunal considers the employer ought reasonably to have known of disability. It is to be remembered that it is not just knowledge of the adverse impact of any condition that fixes the employer but knowledge that it is long term or likely to be. Duty to Make Reasonable Adjustments

[124]If knowledge is established then the duty to make reasonable adjustments arises under section 20 EQA: ‘where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. …’

[125]Tribunals are encouraged to take a structured, step-by-step approach to the consideration of whether there was a duty to make reasonable adjustments. It is not in every case of disability that it arises.

[126]Thus, the Tribunal must first identify whether there was a provision, criteria or practice (‘a PCP’) that applied in general at work.

[127]The Tribunal must not take too narrow a view of whether the PCP has been applied if it is something that is to happen if the Claimant returns to work, see Rider v Leeds City Council EAT 0243/11. The Claimant in that case was instructed to return to work but she was concerned that if she did so her asthma would be exacerbated.

[128]Where a Claimant pleads a practice by being ‘required’ to do something, the Court of Appeal has directed Tribunals to take a broad view of what ‘required’ means. If the Claimant is expected to do something that can amount to a practice, see United First Utilities v Carreras

2018 EWCA Civ 323

[129]Second, it must ask whether the PCP put the Claimant to a comparative substantial disadvantage. There may be some cases in which the PCP disadvantages all employees, but the Tribunal must go on to ask whether the disabled employee was comparatively disadvantaged by a more than minor or trivial degree.

[130]Third, it must ask whether the Respondent knew or reasonably ought to have known of the comparative substantial disadvantage.

[131]The Claimant is not required to suggest to the employer adjustments, but a failure to do so could be relevant to the question of the employer’s knowledge of the disadvantage.

[132]Fourth, it must consider how the proposed adjustment would have addressed the substantial disadvantage in question. This is an objective question, the focus being on the practical result. It does not require a definitive answer. What must be shown is ‘a’ prospect or a ‘real prospect’. A mere opportunity to avoid the disadvantage is insufficient.

[133]Fifth, it must consider whether the proposed adjustment was reasonable. We have had regard to the Equality and Human Rights Commission Code of Practice on Employment 2011 (‘the Code’). According to section 15(4) of the Equality Act 2006, a court or tribunal must take this into account in any case where it appears to be relevant. The Tribunal considers a wide variety of factors in deciding reasonableness: the size and resources of the employer; what proposed adjustments might cost; the availability of finance or other help in making the adjustment; the logistics of making the adjustment; the nature of the role; the effect of the adjustment on the workload of other staff; the other impacts of the adjustment; the extent it is practical to make (see 7.29 of the Code).

[134]Failure to consult about adjustments does not itself constitute a breach of the EQA, although obviously it is good practice to do so. We also note that just because the employer has already made adjustments does not mean in theory that there are others that might have to be made. Application of facts and law to issues

[135]We shall deal with the disability discrimination claim first. Issue 12.1.5 Knowledge of Disability

[136]It is conceded that the Claimant was a disabled person by reason of her interstitial cystitis and her emotional unstable personality disorder. But it is useful to remind ourselves here what our findings have been as to the symptoms experienced.

[137]In relation to IC: the pain was lessened post-operatively and usually managed by medication, but the Claimant needed to use the toilet more frequently than a nondisabled person and she experienced stress-related urgency. She wore pads every day to deal with this matter. While the pads stopped most leakages, they did not relieve the unpleasantness of this condition.

[138]In relation to EUPD, again the medication she took managed her symptoms, but the Claimant was vulnerable to stress. At times of stress and pressure the Claimant was likely to be more emotional in relation to matters that caused her concern. Mrs Cepparulo observed this. At times of stress, she was more likely to experience panic attacks and anxiety. Interstitial Cystitis

[139]The Respondent found out that the Claimant had IC when she told Mr Bristow in about 2015. In our view, the Respondent ought reasonably to have asked then more about the condition so that it could understand in what ways the Claimant might be affected at work. This is because the Claimant had had an operation, and had had some treatment thereafter, which Mr Bristow had known about and changed the rota to accommodate. If it had done so, the Respondent would have found out what we have found now as to the frequency and stress-related urgency. It is also likely that the Respondent would have discovered the condition was likely to last more than 12 months.

[140]If we are wrong about that, once Mrs Cepparulo discovered that the Claimant had a condition called IC (in one of their conversations post June 2016/2017), given she was an experienced HR professional, she reasonably ought to have asked more questions of her then. This would have revealed the Claimant’s IC and that it had lasted 12 months.

[141]In any event, if we are wrong about constructive knowledge at those earlier dates, by March 2018, when discussing the staff deployment and the prospect of lone working, the Claimant informed Mr Gold about cystitis and some of its effects and how it would make lone working more difficult. The Respondent, through the knowledge of the condition from 2015, added to this knowledge by then knew that the Claimant had been experiencing IC for some years. Given that the Claimant was raising a health-related concern that affected how effective the staff deployment in the store might be, Mr Gold ought reasonably to have asked more of the Claimant. Had he done so he would have found out about the stress-related urgency as well as frequency. Thus, in the alternative, by March 2018 at the latest, the Respondent knew or had constructive knowledge of this disability. Mental Health Condition

[142]At the point of the Claimant’s nervous breakdown, the Respondent, through Mrs Cepparulo, knew the Claimant had experienced a significant mental health event and that she was taking on-going medication for anxiety. The only doubt from the Return to Work form was whether it was likely to recur. Mrs Cepparulo, knew enough for it to have been reasonable to ask more questions of the Claimant, which she did in their subsequent conversations. From these she concluded that the Claimant was vulnerable to anxiety, emotional outbursts and had serious mental health issues. She accepts in hindsight she should have obtained information from the Claimant’s GP. We agree that she ought reasonably to have found out more, from the Claimant, from her GP or an occupational health adviser, as the policy allowed. Had she done so she would have found out the formal diagnosis and found out that the condition was likely to last 12 months.

[143]Furthermore, we have found it likely that the Claimant told Mrs Cepparulo of the diagnosis, and this equally ought reasonably to have led her to ask more questions of experts about the condition. In addition, had anyone at the Respondent read the personnel file in full they would have read the abbreviated diagnosis on the discharge sheet and that ought reasonably to have prompted more questions.

[144]In any event, by June 2017, Mrs Cepparulo knew that the Claimant continued to have mental health difficulties, including that she had been absent with anxiety and was on a phased return. This was sufficient knowledge to know the condition had lasted 12 months.

[145]Once Mrs Cepparulo knew, then the Respondent knew. The Respondent failed to have an effective system whereby, with the Claimant’s consent, future managers could be informed of the Claimant’s condition and her needs. In such a large employer this was, as Ms Harkness put it, an important systemic failure.

[146]While it is not relevant to our finding as to when the Respondent knew, we also find that Mr Gold had found out enough after the mediation to know that the Claimant was vulnerable to stress-related anxiety. And Miss Ellwood discovered the same in the welfare call. Adjustments Issue 9.6 and 12.1.1 Did the Respondent apply the following PCPs to the Claimant?

[147]We have separated out, in our analysis, the first question, whether there was a PCP applied, from the second question, whether it put the Claimant to a comparative substantial disadvantage, albeit that these are combined in the statement of the issues.148. 9.6.1: Requiring the Claimant to carry out the duties of a Store Manager at the Colchester store. It is undisputed that this was a condition that applied to the Claimant, as it would apply to any other person who was employed as a store manager there.

149. 9.6.2: Advising the Claimant that she would be losing more assistant hours in store which would mean that she was likely to be trading in store alone. In our judgment this was a PCP. We apply the approach in Rider v Leeds City Council. Had the Claimant returned to work, she faced the risk of having to lone trade. This risk was real because Mr Gold identified that lone trading was likely at the beginning and end of the day. The only other key holder (an employee who could open and close the shop), Ms Fairclough, worked part-time and it was not going to be possible to delegate her to open/close and lone trade early and late every day.

150. 9.6.3. The likelihood of having to deal with deliveries alone. We apply the same reasoning as at issue 9.6.2. This was a PCP because there was a real risk of the store staff having to do deliveries alone in the near future. This is because of the proposed reduction in staff hours.

151. 9.6.4 The Respondent wanted her to continue trading before the matter was cleaned up…. They also took away her stock and failed to replace it. This would have made it difficult for her to achieve stock bonus. In our judgment the Claimant has not established that the contended-for PCP was applied to her. Our findings of fact show that the Claimant was not instructed to continue to trade. The What’s App discussion shows Mr Gold was asking questions and suggesting what would happen ‘if’ the leak could be contained. This was not an instruction to remain open. Nor did he require the Claimant to clean-up sewage. Similarly, we have not accepted as a fact that the Respondent failed to replace stock or put the Claimant’s bonus in jeopardy, because the stock was treated as a fridge/freezer loss, which did not affect the store’s KPIs.

152. 9.6.5 The Claimant needed to use the lift to get to the toilet … Following her being stuck in the lift … the Respondent then informed her that it should have been designated as a goods only lift. If she had remained in store this would have meant that she could not use the lift to go to the toilet upstairs. In our judgment the PCP revealed by this allegation is that the Claimant was required to use the stairs to go to the toilet rather than the lift. This was plainly a PCP applying to all staff at

153. 9.6.6 It seems to us the PCP that was identified by the final allegation is that the Claimant was managed by an ASM, namely Mr Gold. Issue 9.6, 12.1.2 Did the PCP put the Claimant to a substantial disadvantage in comparison with non-disabled persons?

[154]Of those PCPs we have found did they place the Claimant at a comparative substantial disadvantage? 9.6.1 The duties of store manager.

[155]In our judgment, by the time she resigned, it had become too stressful for the Claimant to undertake the duties of store manager. She admitted as much herself in her welfare interview with Miss Ellwood and in her evidence to us and in her wish to work in an alternative role in Head Office. It seems to us that a number of factors had contributed to this stress: the Store’s poor performance, the prospective reduction in staff hours; the leak, lift and cage accidents and her perception that Mr Gold was critical. These are all features of being the store manager at Culver.

[156]One of the symptoms of her disability was stress-related anxiety. The stresses of being the store manager at Culver therefore put her at a substantial disadvantage because she was less able to cope with them because of her disability. She was at a greater disadvantage than a non-disabled store manager. This is because, while non-disabled store managers are likely to have experienced these factors as stressful too, in our judgment they would have been less vulnerable to it and coped with it as part and parcel of the job of store manager in a larger store. 9.6.2 the prospective risk of lone trading

[157]Again, the Claimant experienced a comparative substantial disadvantage in this respect because of the symptoms of her IC. Any employee lone trading might have had to go to the toilet and have to close the store. But the Claimant was more likely to have to do so, give the frequency she experienced and the stressrelated urgency. The practical process she would have had to go through to close the store: looking for customers; asking customers to leave, closing up and then going up a floor to use the toilet was more than a trivial or minor disadvantage in our view. It was a time consuming process that someone who needed to use the toilet urgently or more frequently would have been much discomfited by. 9.6.4 Deliveries Alone

[158]We reach a different conclusion in relation to deliveries. On balance we consider, the Claimant would have been able to delegate this task to other staff. We have not heard any evidence that deliveries were likely to coincide with the short periods of lone working the Claimant was at risk of. Otherwise she had staff to delegate this task to. This means that she was not comparatively disadvantaged by this PCP. As a store manager, it lay within her control not to be. (If we are wrong about this, then the delegation we have described above, would have been a reasonable adjustment the Claimant herself could have taken to avoid any disadvantage.) 9.6.5 Having to use the stairs to access the toilet rather than the lift

[159]The Claimant argues she was put to a comparative disadvantage because the stairs were slower than the lift. However, on balance we are not persuaded that this disadvantage was more than a minor or trivial. The Claimant’s case is based on speed. She does not say there was any impediment to her using the stairs. We are not persuaded that using the stairs to go up one floor was slower than using the lift. The stairs required her to input a code at the door. But the lift required to be called and sometimes waited for. If using the stairs to go up one floor was slower, in our estimation on the evidence we have heard, this would only be to a minor or trivial degree.

[160]In any event, if we are wrong about this, we would not have been persuaded that allowing the Claimant to use the lift was a reasonable adjustment. The Claimant had become stuck in the lift and we cannot second-guess, on the evidence we have heard, the Respondent’s decision to make the lift goods-only. A cautious approach to its use was probably reasonable in the circumstances, especially given the Claimant’s vulnerability to stress-induced urgency and stress-related anxiety. 9.6.6 Management

[161]We should be clear that we do not accept the Claimant’s case that Mr Gold did not respond to her requests for practical help: he plainly did so.

[162]Nevertheless, from September 2017 any ASM would have sought to improve Culver’s performance against its KPIs, which were all in the red after nearly a a year of trading. This would have involved speaking to the Store Manager about how to improve them. Mr Gold did this on his full-store visits. The Claimant was stressed by this approach. This put her to a comparative substantial disadvantage because she was vulnerable to stress. A store manager who did not have stressinduced anxiety would have coped with this management approach. The disadvantage was more than minor or trivial: although the Claimant coped for several months, eventually, it contributed to her becoming stressed and anxious, as illustrated by her panic attacks and the occasion in March 2018 when she shouted at Mr Gold. Issue 12.1.4 Did the Respondent know (or ought it reasonably to have known) of the substantial comparative disadvantage we have found.163. 9.6.1 Store Manager: In our judgment, once the Respondent knew or ought to have known that the Claimant experienced stress-induced anxiety, then it was likely to know or reasonably ought to have known that the duties of managing a larger store were likely to put her to a comparative substantial disadvantage. This is because this was a step-up for the Claimant. The store had a larger staff and a £1million pound turnover. Each responsibility of the store manager was heavier than she had successfully managed in the past: more staff to manage; more stock to manage and process; more training to undertake. Certainly by the point at which it knew or reasonably ought to have known the Claimant had a long-term mental health condition that meant she experienced stress-induced anxiety and it also knew that the Culver store was not reaching its KPIs, then the two together should have led the Respondent to conclude that the Claimant was likely to be placed at a comparative substantial disadvantage in the role of Store Manager of Culver.

164. 9.6.3 Prospect of Lone Trading. The Respondent knew that lone trading presented a problem for the Claimant because of her IC: she had told Mr Gold and Miss Ellwood about his. They knew that she was comparatively substantially disadvantaged or they knew enough for it to make it reasonable for them to ask more questions about the problem and understand this.

165. 9.6.6. Managed by an ASM/Gold By the time of the mediation the Respondent knew that the Claimant had a disability one of the symptoms of which was stressinduced anxiety. There was such a poor start to the relationship, one requiring mediation, that this should also should have rung alarm bells that the Claimant was not coping with being managed and that it placed her at a substantial comparative disadvantage. Issue 12.2 Effectiveness and Reasonableness of Proposed Adjustments Issue 12.2.1 Transferring the Claimant to fill an existing vacancy, at head office, including the possibility that the Claimant should be placed at the same, lower, or higher grade without any competitive interview that is reasonable under the circumstances? Issue 12.2.2. Was there an existing vacancy at the time? The Claimant relies on the vacancy of Management Development Trainer. Issue 12.2.3 Was there also a vacancy for store support which the Claimant had done before which she was willing to do on this occasion? Issue 12.2.4 Would it have been reasonable in the circumstances to transfer the Claimant to the office to work without application?

[166]We are willing to accept that, within the large store network there may well have been vacancies the Claimant could have done, as Miss Ellwood had suggested. But the Claimant rejected the idea of doing a lesser role in stores. It was reasonable, therefore, for the Respondent not to progress this possible adjustment any further.

[167]In our judgment, in addition to sending the list vacancies to her, the Respondent ought to have looked itself at whether there were suitable vacancies that it could transfer the Claimant to in the light of her stated difficulty in staying in her store manager role and the comparative substantial disadvantage that put her to because of her mental health condition. This is because the duty is on the employer to make the adjustment.

[168]The difficulty for the Claimant is that she narrowed down her alternative job search to Head Office. The evidence is that all Head Office vacancies were on its ‘career page’ (the link she had been sent by Miss Ellwood). The Claimant accepts that none were suitable for her save possibly the job she applied for. But we have accepted the unchallenged evidence of Mr Pearce that the Claimant did not have the essential experience for that job. It would not, therefore, have been a reasonable adjustment to transfer her to that position. This is not the kind of case where a Claimant fits an alternative role if she received some training, see the example in the Code para 6.33. It would not have been reasonable to move the Claimant to the post of Management Development Trainer with no essential experience.

[169]Thus, even if the Respondent had acted proactively and searched for a suitable alternative role (as it should have done), it would not have found one that it could have reasonably transferred the Claimant into. There was no failure therefore to make a reasonable adjustment because the search would not have had any prospect of removing the disadvantage the Claimant was experiencing.

[170]The Respondent should be aware that, in the future, it should not require disabled employees to do their own search but should be proactively looking for roles. It should also be aware that, depending on the circumstances, it may well be a reasonable adjustment to transfer an employee into a suitable role as the Code suggests. On the fact here, this is not that case. Lone Trading

[171]Although there is no proposed adjustment set out in the issues, it is not for the Claimant to identify adjustments. We have considered what adjustment if any was appropriate to make for the PCP we have identified.

[172]First the Claimant could not avoid the prospect of lone trading by delegating these shifts to others. This is because of the key-holder problem we identified above. Ms Fairclough was part-time.

[173]Second, it was not enough to allow the Claimant to close the store: that process itself created the comparative disadvantage: it was time consuming and awkward in times of an urgent need to go to the toilet.

[174]Third, we have considered whether the Claimant’s coping mechanism (that she used for deliveries) might have been a sufficient adjustment. She could go to the toilet before opening and again once another member of staff arrived at the end of lone trading. We considered this would work for some of the time but not all because of the difficulty of anticipating the stress-related urgency that she was, by then, more likely to be experiencing.

[175]Fourth, we do not consider Ms Harkness’ suggestion of letting the Claimant use the lift as an exception was a reasonable adjustment. Mostly because there was not much difference if any between using the lift and the stairs. And, in any event, it was reasonable of the employer to be cautious about staff using the lift after the incident.

[176]We have concluded that the appropriate reasonable adjustment was to adjust the staffing hours available to avoid the part of the week when the Claimant was lone working give her the hours. This would have been effective to avoid the disadvantage. It would also have been reasonable in our view, despite the aim to reduce staff hours across the board. First the hours were few: no more than about 3.5 per week. It was likely she could delegate half the week to Ms Fairclough, leaving 3.5 days of 1 hour a day that she was at risk. We have taken into account the size of the Respondent, the turnover of the store and the small amount of extra hours this cost would represent. Even though the Respondent was seeking to reduce hours, this, in our judgment does not outweigh those other factors given the positive obligations to adjust that the Act requires.

[177]In the alternative, the Respondent could have allocated another key-holder in the Culver store and identified, in that way, another member of staff as well as Ms Fairclough who could have done the remaining early shifts.

[178]Mr Gold ought to have indicated that these were the adjustments that could be made at his meeting in March 2018 and/or Miss Ellwood should have taken steps to explore with Mr Gold the options after she heard of the Claimant’s concern at the welfare meeting in May 2018. There was still a reasonable amount of time prior to the Claimant’s resignation to suggest these two alternatives to her.

[179]Thus, the Respondent failed to make a reasonable adjustment to prevent the risk of the Claimant having to lone trade. Issue 12.2.5 Extra Support

[180]By the time of the mediation, we have found that the Respondent ought to have known that being managed put the Claimant to a substantial comparative disadvantage.

[181]The mediation was a first appropriate attempt to make a reasonable adjustment in this regard (even if the Respondent did not identify it as such at the time). In that meeting with the help of Mrs Cepparulo, the Claimant and Mr Gold discussed what had happened, their perceptions of each other, discussed a better way to communicate in the future and talked frankly about mental health. Thereafter their relationship improved; Mr Gold ensured to keep the Claimant included in his decisions; tried to identify good practice for her. In our view, he gave her the support an ASM would be expected to give. He appropriately set her targets through the ‘performance drive’. And his informal management of the stores’ and the Claimant’s performance through his monthly full store visits, was appropriate to the level of his concerns about them. Thus the mediation appears to have worked until the stressors on the Claimant became greater and she lost the support of Mrs Cepparulo.

[182]Until January 2018, the Claimant had the support of Mrs Cepparulo who acted as a mentor: offering the Claimant guidance, support, a sounding board outside the line of management. Again, this was a reasonable adjustment even though she did not identify it as such at the time.

[183]It is no coincidence, in our view, that the Claimant’s resilience deteriorated after Mrs Cepparulo was promoted and was no longer available to the Claimant in this informal mentoring role. We therefore consider the reasonable adjustment that the Respondent failed to make in respect of the PCP of management is that it should have ensured the Claimant continued to receive mentoring support.

[184]Mrs Cepparulo ought to have ensured that the Claimant was provided with mentoring support. The mentor could have acted, as she had done, as a sounding board, helping to put the Claimant’s perceptions into perspective, giving her guidance about the matters that caused her stress and support. Mrs Cepparulo did not keep this support in place when she handed over to Miss Ellwood. Nor did she involve the Claimant in identifying who such a mentor might be. This extra support would have had a prospect of avoiding the disadvantage that the Claimant was under becoming more stressed by the management that she inevitably had to face in order to improve her store’s performance; and by the stressful incidents that had occurred. (How large a prospect is a question for the remedy hearing.)

[185]Issues numbered 10 and 11 have already been dealt with under 12.2.4.

[186]In conclusion the Respondent discriminated against the Claimant by failing to make the following reasonable adjustments: 186.1. Either finding about 3.5 extra hours per week of staffing time at the Culver store or allocating an existing staff member to be a new key-holder to cover those hours to avoid the risk of the Claimant having to lone trade; 186.2. In January 2018 providing the Claimant with mentoring support, upon Mrs Cepparulo’s promotion. Unfair Dismissal Issue 9.1.1 Did the Respondent instruct the Claimant to continue trading after the sewage leak?

[187]We did not find this allegation to be proved as a matter of fact. Issue 9.1.2 Did the Respondent remove all her stock, when the sewage leak was eventually cleaned up?

[188]We did not find this allegation to be proved as a matter of fact. The stock was dealt with as freezer loss and would have had no impact on her bonus. Issue 9.1.3 Did the Respondent inform the Claimant that the lift that had been previously designated as staff lift only, was now a goods lift only after the Claimant had got stuck in it?

[189]As a matter of fact the allegation at 9.1.3 is proved. Issue 9.1.4 Did the Respondent fail to replace the stock that had been removed so that she was likely to lose out on stock bonuses?

[190]This allegation has not been proved, see above. Issue 9.1.5 Did the Respondent take away the Claimant’s staff and hours so that she was going to be trading alone and informing her that she would be a lone trader, knowing that the condition of interstitial cystitis requires her to have regular access to the toilet and that in order to do so she would have to close the store which would affect trading?

[191]We have found this allegation to be proved for part of the week. This is because the Claimant could have delegated some lone trading shifts to her deputy for part of the week. We have estimated this as about half the week. The Claimant therefore understood that if she returned to work she would have to lone trade for about 30 minutes at the beginning and end of the day for about half the week. Issue 9.1.6 Did the Respondent inform the Claimant that she could not be transferred to head office according to her request but that she would have to apply for a job and go through the normal recruitment process in order to be able to move from her store?

[192]It was clear to the Respondent that the Claimant wished to work in Head Office. It informed her that she should consider available vacancies online and apply for any she thought suitable. Issue 9.1.7 Did the Respondent refuse to transfer the Claimant to head office to any job even with a pay cut, to enable her to get away from the situation at the store?

[193]This allegation is not made out because there were no suitable vacancies at head office to which to transfer the Claimant. Issue 9.1.8 Did the Respondent require the Claimant to work in a store which where the nearest toilet was two floors up and the only way to access the toilet quickly was in a lift which had initially been designated as staff lift and had been used by members of management or when they attended the store and was lately designated as a goods lift only, after the Claimant got stuck in it?

[194]After the incident in the lift, the Respondent stopped staff members from using it. The Claimant had to use the stairs to use the toilet: one floor up, two flights of stairs. We have found, however, that it was not significantly slower to use the stairs. Issue 9.1.9 Did the Respondent inform the Claimant in a meeting with her area manager that she would have to deal with deliveries on her own which could amount to as much as 18 cages on any one day?

[195]Mr Gold informed the Claimant in the staff deployment meeting that deliveries may have to be taken alone but the Claimant knew she could delegate this function and therefore did not have to do this task alone. Issue 9.1.10 Did the Respondent require the Clamant to work with cages that were sometimes broken and without being flagged as being so, so that she cut her hand on one of those cages?

[196]We have not found this allegation to be proven. The Claimant was not ‘required’ to work with broken cages. The Claimant hurt her hand on a broken cage, which was an accident. The cage was thereafter red flagged as broken. Issue 9.1 Breach of the implied term

[197]First, of the allegations that we have found as a matter of fact occurred, did any of them happen with reasonable and proper cause?

[198]In relation to the lift, we find that the Respondent had reasonable and proper cause to change its instructions regarding its use. We have taken the view that it was appropriate to be cautious about staff using the lift once two of them had become stuck in it.

[199]In relation to Head Office vacancies, we think it appropriate that the Respondent directed the Claimant to the list of vacancies online and invited her to apply for any of them. It was reasonable, in the context of the contractual term, to expect a member of staff to be assessed against the criteria for the job.

[200]In relation to the prospect of lone trading, we do not consider that there was reasonable and proper cause for this prospect. This is because the Respondent did not explore with the Claimant alternative ways of trading to avoid this prospect once she had informed them that it would present her with difficulties.

[201]In our judgment the prospect that the Claimant would have to lone trade at Culver was a breach of the implied term in the particular circumstances of this case. Mr Gold knew of the Claimant’s cystitis. She told him that lone trading would be difficult because of it. Yet, at their meeting he did not discuss ways around the problem or look for alternatives. Telling the Claimant that she could close the store was insufficient because this was a large store, she would have to look around for customers, close up, go to the toilet and reopen. This was time consuming and stressful. Similarly, Miss Ellwood did not take steps to explore with Mr Gold whether there was a way to avoid lone trading, once the Claimant had identified her concerns to her.

[202]The comfort of employees at work is important, especially when it comes to their toileting needs. When faced with an employee who was explaining that her particular need to urinate frequently and sometimes urgently meant that a change to hours was going to be difficult, the maintenance of trust and confidence demanded that the employer actively sought a solution with the employee and took her concerns seriously. Neither Mr Gold nor Miss Ellwood did so here. In our judgment their approach to the problem was likely to seriously damage trust and confidence and was therefore a breach of the implied term.

[203]We note that the tests as to what is a failure to make a reasonable adjustment and what is a breach of the implied term are different. The law does not require us to reach the same conclusion as to each. But in this case we have applied the contractual test and concluded that presenting the prospect of lone trading without exploring the alternatives with the Claimant was also a breach of the implied term. Issue 9.2.1 If so, did the Claimant resign in response to the breach [at least in part].

[204]It is plain from our findings of fact that one of the reasons for the Claimant’s resignation was the prospect of lone working. It was not the sole reason, but it is enough that she resigned partly in response to the breach. Issue 9.2.2 If so, did she waive the breach and/or affirm the contract?

[205]The prospect of lone working was raised in March 2018. By 9 April the Claimant took a sickness absence. She attempted to discuss her concerns about lone working during the welfare meeting on 18 May 2019 but there was no attempt to resolve them. On 27 June she resigned. We do not consider the ‘delay’, if there was one, was sufficient to amount to an affirmation of the contract. The Claimant raised her concerns in May and had not received an answer to them by the time she resigned. This is classically the territory of WT Cox Toner. The Claimant had not, by her actions, waived the breach.

[206]Therefore the Claimant was unfairly constructively dismissed. Remarks of the ‘Industrial Jury’

[207]We are conscious that in a disability case as factually complex as this we have had the benefit of hindsight. But it is our clear view that the Respondent’s failures in this case could have been avoided if its managers and HR staff had been better informed of the obligations towards disabled employees the Equality Act 2010 demands. It is crucial that HR and managers understand that they might have positive obligations towards disabled employees to adjust the normal state of affairs at work. By 2018 there was no excuse for such a large employer to be in such a state of ignorance about the Equality Act provisions. There was a lack of any effective training in disability or mental health matters.

[208]What was also missing here was any coherent system of informing managers about employees’ health conditions. If managers and HR had been better informed, then they would have asked questions and obtained the relevant information at a much earlier stage. They would have sought the medical information they needed far sooner and, ideally, obtained occupational health advice. They would then have had a much better chance at identifying adjustments needed and maintaining those adjustments when managers and key HR staff moved on. We are not saying those adjustments would necessarily have enabled the Claimant to stay in work – that is an issue for the remedy hearing - but they would have given her a prospect of doing so.

[1]The judgment on liability was sent to the parties on 19 December 2019. In summary, the Tribunal found the Respondent had failed, contrary to the Equality Act 2010, to make two reasonable adjustments. First, failing to continue to provide her with support (after her initial mentor/confidante had been promoted); and second, failing to remove the prospect of lone working. We decided that failing to remove the prospect of lone working also amounted to a breach of the implied term as to trust and confidence and therefore also that the Claimant had been unfairly dismissed.

[2]We did not uphold the Claimant’s other disability discrimination complaint in relation failing to transfer her to Head Office; and we did not uphold the majority of her complaints that were alleged to have either been PCPs or contributed to her breach of contract in relation to: deliveries; how a sewage leak had been managed and its consequences as to stock; the use of the lift; her manager, Mr Gold’s, attitude towards her; broken cages.

[3]The remedy hearing originally listed in March 2020 was postponed because of the restrictions imposed by the Coronavirus. For the same reasons this hearing was conducted remotely via cloud video platform. We thank all concerned for the efforts they made to ensure that the hearing was effective including providing us with a PDF version of the remedy bundle. We had some difficulties on the first day with internet connections, which meant we lost about 90 minutes hearing time in total. We ensured sufficient breaks to compensate for the greater intensity that video hearings demand. On the second day, we checked with the parties that they had not been disadvantaged by the interruptions on the first day, by giving them an opportunity to bring up any matter they felt they had missed on the first day. Neither party needed to take that opportunity. The delays meant that we have also needed the morning of 2 November 2020 in order to conclude our deliberations on remedy.

[4]We thank both representatives for their hard work: Ms Harkness approached what probably felt a daunting task as a lay person with skill and good sense; and Mr Ludlow adopted a scrupulously fair approach, asking questions in a structured and sensitive way, and assisting both us and Ms Harkness in his description of the legal principles. Issues

[5]The List of Issues was set out in the Case Management Summary sent after the liability decision.

[6]Unfair dismissal:1.1 The calculation of the basic award [now agreed];

1.2 For the compensatory award, what loss is attributable to the dismissal:

(a) If the Claimant has not found another job, then whether the Claimant has taken reasonable steps to look for work;

(b) If the Claimant argues that she has not been well enough to look for work, then she must provide adequate medical evidence, including GP records for the relevant period.

(d) How pension loss, if any, should be calculated. [now agreed]

(e) What amount, if any, should be awarded for loss of statutory rights. [now agreed]

1.3 Should any reductions to the awards be made: (a) What is the percentage chance that the Claimant would have resigned in any event because of the reasons for her resignation that have not found to be in breach of contract? And/or on what date, if any, is the Claimant likely to have resigned in any event? (b) What is the percentage chance that the Claimant would have been dismissed in any event (‘the Polkey question’)? And/or on what date, if any, is the Claimant likely to have been dismissed in any event?

[7]Disability discrimination: 1.4 What would have happened if the discrimination had not occurred? The answer to this question is not necessarily ‘all or nothing’: the Tribunal can assess the percentage chances, for example, of the Claimant remaining in work. 1.5 What injury to feelings award should be made? Injury to feelings awards are compensatory and are based on the injury suffered. They are not for the purpose of punishing the Respondent. 1.6 Whether an aggravated damages award should be made and, if so, at what amount. 1.7 Whether interest should be awarded and, if so, for what period/s at what rate in respect of financial loss and injury to feelings.

[8]To these were added the issue whether there should be a percentage decrease in any award if the Claimant had failed unreasonably to follow the ACAS Code on Discipline and Grievance. Findings of Fact

[9]Having heard evidence from the Claimant, Miss M Ellwood and Mr Gold and having read the documents to which we were referred in the Remedy Bundle, we make the following findings of fact. We refer to page numbers in the Remedy Bundle as R# and the Liability Bundle as L#. We refer to the findings of fact made in the liability judgment by J(paragraph number).

[10]While the Claimant’s resignation email was 28 June 2018, she gave 4 weeks’ notice (L269a), therefore the effective date of termination of employment was 25 July 2019.

[11]The parties have agreed figures for weekly net and gross pay and the value per week of lost pension contributions, see Appendix 1. Attempts to Mitigate

[12]The Claimant was encouraged by her former manager Mr Bristow to apply for a job as a store locality manager at Lloyds Pharmacy, on 26 June 2018 (R316). She was unsuccessful. Other than this, she has not applied for work since her resignation. Benefit Income Since Resignation

[13]The Claimant applied for Universal Credit (‘UC’) in July 2018. Her first payment was 30 September 2018. She continues to receive it. After the necessary three-month waiting period, she was assessed as having a Limited Capability for a Work-Related Activity (this DWP phrase incorporates having a limited capability for work): as a result she received an additional element within her UC payment. The figures for receipt of UC, set out in our calculation of remedy at Appendix 1, are taken from the UC statements (R104-137). The parties had not ensured that these statements were up-to-date. We find, having checked with the Claimant at the hearing, that she continued to receive the standard, housing and LCWRA elements, but that these were all increased from the beginning of April 2020. We find she has received UC of £979 per calendar month and will continue to do so until she is well enough to work. Fitness for Work Since Resignation

[14]On 18 July 2018 the Claimant went to her GP who considered her to be in mental health crisis. She was referred to the Crisis team and stayed in a ‘crisis house’, a place where a person can receive therapy and respite for a week or so, until 8 August 2018.

[15]The Claimant was referred to the Francis Dixon Lodge (‘FDL’) in August 2018. This is a specialist unit for personality disorders. Her evidence at the liability hearing was that, since this referral, she had been having good counselling and therapy. This is supported by her medical notes for the period: in May 2019 she told her GP she had had her FDL assessment and that treatment would begin in July 2019 (R324). The FDL documents show they invite her to an assessment in January 2019 (352) and then a follow up appointment in July 2019. The Claimant’s evidence to the remedy hearing of the current position was that she had been seeing a mental health nurse for therapy at FDL at approximately monthly intervals, but that she was still waiting an assessment for an 18-week course at FDL, which would do deeper work in relation to her personality disorder, and, until then, she had been advised not to work. This is supported by the letter from FDL in January 2020 (R409) that says she is under assessment and ‘until completed and undergone treatment’ she is not fit for work. This in-depth course of treatment has been delayed by coronavirus restrictions.

[16]The Claimant’s evidence, which we accept, is that she has more insight into her condition now and has been provided with some coping mechanisms. Her condition is also managed generally well by medication (as we found in our liability judgment) except when she experiences extra stress.

[17]The Claimant had the extra stress of not finding a place to live until January 2019 (see below). After this, according to the GP notes, her mental health appears to have settled: in February she was described as doing fairly well and likewise in July 2019.

[18]After the understandable stress of the liability hearing the Claimant went into a period of mental health crisis and had one further week at the crisis house (R330).

[19]The GP notes also reflect that a relationship issue was a continuing stressor in the Claimant’s life. From time to time this has also exacerbated problems with her mental health.

[20]From about April 2017 the Claimant developed symptoms of physical pain initially in her hands, then elbows, then all over her body (e.g. R347). The Claimant asserted in her evidence that this is generally managed by medication but is made worse by stress. We do not have any medical evidence, but this assertion was not challenged by the Respondent and we accept it to be the case.

[21]In her evidence to the remedy hearing, one reason the Claimant said she had wished to apply for a head office job was to avoid the physical strain of the store manager job.

[22]For the purposes of her benefit claims, the Claimant has been certified as being unfit for work by her GP and those providing her with specialist mental health input since her resignation. The GP’s assessment is based on both her fibromyalgia and personality disorder (R356: December 2018).

[23]The Claimant agreed in her evidence that, in October 2019 that she had discussed with her GP having a long-term goal of retraining in the field of mental health (R319); and, in February 2019, talking about the idea of some limited volunteering to help socialisation (R323). We find it is the Claimant’s future goal to re-train in mental health, but not one she has yet been able to take steps towards. Caravan and Housing

[24]While working at Colchester the Claimant had been living in a static caravan. This had been purchased by her mother on finance. The Claimant paid rent to her mother who used it to pay the finance company.

[25]The Claimant began her last period of sickness with the Respondent on 9 April 2019 (J72). She went to stay with her mother in Loughborough for support and to allow her mother to rent out the caravan (J74). We accept that this is because, after 6 weeks of full pay, the Claimant would only then receive statutory sick pay of around £90 per week (SSP) and could therefore not afford the rent but her mother still needed an income from the caravan to pay the finance. We find that this was initially a temporary move to obtain much-needed support. Only after the resignation, without an income, the Claimant then decided to continue to stay with her mother and the move became permanent. This was a difficult decision for the Claimant: her friendship circle was in Essex, as had been her job: she only decided it was to be a permanent move after her constructive dismissal.

[26]The documents show that her mother had a complaint about the state of the caravan when it was delivered to Colchester. This did not stop it being livedin but did ultimately lead to Ms Harkness obtaining an Ombudsman’s decision recommending that the company she purchased it from accept a return of the caravan and compensation. We find that this dispute did not impact upon the Claimant’s decision to move to Loughborough and was an entirely separate issue.

[27]The Claimant spent about 5 months applying for (‘bidding on’) social housing properties until she was successful and moved into her own flat in January 2019. She was understandably anxious about her housing situation before then. Other Findings of Fact about Employment

[28]The Claimant had been progressing well until she came to Culver. Mr Bristow, the Claimant’s earlier manager, had marked her out as Area Manager material (R277). The Claimant had enjoyed working for the Respondent. It seemed to us she clearly gained confidence from her progress through the ranks. She was delighted to have been given the larger store, Culver, and was keen to continue to develop. Again understandably, she saw her work at the Respondent as a career.

[29]The Culver store was a step-up for the Claimant. She had more staff to manage and a bigger, ‘concept’ store with a wider range of products (J32-33).

[30]In mid-2017, after about 6 months of being the store manage at Culver, and when there was no lone working and the Claimant was receiving the mentoring support of Mrs Cepparulo (i.e. there were no adjustments to be made), she had a period of depression/anxiety combined with a sprained ankle for which she needed about 5 weeks off and a graded return (J37 and R300). The medical notes record her keenness to get back to work at this time (R300).

[31]The Culver store did not meet the sales targets set for the first year of trading but, by December 2018, sales targets were met in every month except one until the Claimant’s last sick leave in April 2018. The store was still not meeting other Key Performance Indicators (like items in a basket). At the remedy hearing, we heard evidence from the Claimant, which we accept, describing difficulties with staffing at Culver. Some of these difficulties stemmed from her having to demote the Assistant Manager, Ms Faircloth, to supervisor and to the staff hours reductions we referred to in our liability judgment. Subsequent Allegations of Gross Misconduct

[32]In his witness statement at the liability hearing (para 42), Mr Gold stated that, before her resignation, he had begun an investigation into allegations of misconduct against the Claimant. We left that evidence to any future remedy hearing as the Claimant was not aware of the allegations at the time and they were not relevant to liability.

[33]On 10 April 2018, the day after the Claimant had signed off sick, Mr Gold went to the store to ensure it was adequately covered. He did a full safe check and found it was £10 down. Ms Faircloth informed him that the Claimant had borrowed £10 from the till to buy cigarettes. As the Claimant had then begun sick leave it had not been paid back. In a later fact-finding interview, the other supervisor, Ms Tiganila, informed him that the Claimant had taken a few reduced lines without purchasing them on the basis that she would return to pay for them later. On 23 May 2018 Mr Gold was informed that the Claimant had returned to the store to pay for those lines. He says he saw the CCTV where the Claimant did a transaction at the till without scanning items. He also says he saw the Claimant picking items from the reduced lines bin. Mr Gold did not retain the CCTV. He accepted in cross-examination that the receipt he relies on for the transaction he referred to is not for ‘reduced lines’ (R420). We find this receipt also shows that the transaction was not for ‘a few’ items, but a significant shop of 14 items totalling about £81. Mr Gold accepted he did not know whether the receipt related to the products or not. He also accepted that there had been staffing difficulties at the branch, including because of the demotion of Ms Faircloth.

[34]Mr Gold checked with Miss Ellwood of HR who remembers advising him to do an investigation, a ‘fact find’, with the two supervisors. In his interview with Ms Faircloth she says that Ms Tiganila had only been told of the issue on the Friday, but Ms Tiganila suggests they both knew on the same day. Ms Tiganila alleged the Claimant had told her to replace the £10 from the till with money from the change float to make sure the tills were balanced.

[35]At the end of each fact-find Mr Gold decided not to take any form of disciplinary action against the supervisors.

[36]Mr Gold decided to await the Claimant’s return before investigating the matter with her: he knew she was on sick leave for stress and did not therefore think it appropriate to raise it with her while she was absent.

[37]The security policy of the Respondent informed staff they must not borrow company money for any purpose (R141), nor must they take goods intending to pay at a later date (R142). In its disciplinary policy ‘taking stock without making payment for it’ is an example of gross misconduct as is ‘any serious breach’ of the security policy.

[38]In his evidence Mr Gold explained that, although the supervisors were also at fault for not reporting the matter, he thought they had a close relationship with the Claimant and that was why he did not take action against them. We find, however, that his decision also suggests he did not consider the matter as serious as he now claims otherwise he is likely to have taken some action in order to lay down the message that each supervisor was responsible for upholding the security policy.

[39]Mr Gold accepted that his investigation was not complete and could have been more detailed, but he maintained his view that, if the Claimant had returned to work she is very likely to have been dismissed because of these allegations.

[40]The Claimant denies borrowing money from the till and suspects her staff of using her as a convenient excuse, given she was absent. She denies taking items without paying for them and refers to the receipt that shows what she later paid for were not ‘reduced items’ or a ‘few’. The Claimant was extremely upset by these allegations. Decision Whether to Bring Grievance

[41]The Claimant had tried to contact Mrs Cepparulo by email in January 2018 for support, but Mrs Cepparulo had not replied. We accept the Claimant’s explanation that she had not complained about this at the time because she hoped that Mrs Cepparulo would reply. The Claimant also bore in mind Mr Bristow’s warning to her that she should not bring grievances if she wanted to progress. Before her resignation, the Claimant did complain about the prospect of lone working to Miss Ellwood in a welfare meeting. Injury to Feelings

[42]The Claimant had viewed her employment with the Respondent as a career: she had been promoted and done well in most of the 6 years she was employed. The job bolstered her self-esteem and gave her confidence and status. We find she suffered significant disappointment, upset and, initially intense anger, as well as a loss in confidence when this career ended. These responses were so severe that the mental health crisis she experienced at the end of July/August 2018 was very much down to the loss of work. We take the Claimant as we find her: a person with a vulnerable mental health because of her personality disorder. We therefore take into account this more magnified response to the loss of her job, even though it may not have been how those of a more resilient disposition would have responded.

[43]The Claimant went as far as describing her hurt feelings in her Schedule of Loss as arising from a ‘campaign’ of discrimination ‘almost as soon as’ she told the Respondent about her mental health. But we have found that the Respondent gave her mental health support through the mentorship of Mrs Cepparulo but failed to continue it. And we have found the Respondent ought to have adjusted for the future prospect of lone working. This, by no stretch of the imagination, could be described as a ‘campaign’ of discrimination or one beginning from as soon as the Respondent became aware of her disability. Thus we find that part of the Claimant’s injured feelings relate to those complaints we have found not to be discrimination: in particular the failure to look for or offer her a head office position about which she was still complaining at the remedy hearing; the relationship with Mr Gold; her feelings of a lack of support over the sewage leak and the cage injury; and her feelings about being unable to use the lift. That is not to say, however, that we do not weigh most heavily in the cause of her injured feelings the loss of her job, which was partly the result of the discrimination we found.

[44]We find that by late 2018 the Claimant’s emotional response had lessened. In February 2019 she told her Doctor she had not felt ‘intense anger for months’ (323). The other GP notes in early 2019 record that she was doing altogether better in mental health terms. But we find that, although the loss of her career did not manifest itself in a significant mental health response any longer, as a real feeling of loss it still persists. We consider that once the litigation is over this feeling is likely to improve as she moves on in her life with the help FDL. Dates for the Calculation of Interest

[45]There was an ongoing failure to provide alternative support to Mrs Cepparulo from January 2018. In relation to the failure to adjust the prospect of lone working, the Claimant raised her concerns about its impact on her interstitial cystitis in a meeting in March 2018. It would have taken a further period for the Respondent to figure out an alternative approach: by Mr Gold discussing the matter with his managers and the Claimant. It would have reasonably taken no more than the end of May 2018 to do this. For interest purposes, we therefore calculate the date of discrimination from then. Submissions

[46]Both parties provided Schedules of Loss. The parties agreed some figures (as set out in Appendix one). Respondent

[47]We refer to Mr Ludlow’s helpful skeleton argument, which he supplemented orally.

[48]In essence he argued that the Tribunal could find that there was no loss of earnings from the resignation onwards (or that loss of earnings should be discounted to allow for the chance of various other outcomes):

[49]The Claimant would have resigned in any event because of the other reasons for her resignation and because of the other stressors at work.

[50]The Claimant would have resigned in any event because she had relocated to Loughborough.

[51]The Respondent is very likely to have dismissed the Claimant for gross misconduct.

[52]The Claimant would have resigned/or been dismissed in any event due to ill health: her mental health has prevented her from working and she had developed fibromyalgia, which has played a large part in her inability to work since.

[53]Mr Ludlow also submitted that the Claimant failed to mitigate her loss: she applied for one job very shortly before dismissal which showed she thought herself capable of work. And there is evidence that she was intending to retrain in a different field, which he argued broke the chain of causation. He argued the GP notes showed that she was considering volunteering and was faring better in 2019, so that some work was possible. The Claimant could not have it both ways: either she was well enough for some work or she was so unwell that this inability to work would eventually have led to her dismissal for incapability.

[54]He argued that Injury to Feelings fell within the bottom of the middle band of Vento. These were short-lived failures to adjust. This was not a continuing campaign of malicious discrimination. The Tribunal must not compensate for the mental health that the Claimant already experienced nor for the other complaints that the Tribunal rejected (the sewage leak; the lift; the management of Mr Gold; the finger injury; and the failure to transfer her to head office). We should compensate her only for the injury to feelings in consequence of the failure to make adjustments. Plainly there was an exacerbation at first, as illustrated by the crisis soon after resignation, but the GP notes show that the Claimant was getting along emotionally far better by early 2019.

[55]He submitted that the Tribunal should also compare any injury to feelings award it makes to the Judicial College Guidelines in personal injury awards: Mr Ludlow suggested the band for ‘moderate’ psychiatric damage was the best reference point (£5,500-£17,900).

[56]Mr Ludlow argued that the threshold for aggravated damages was simply not met in this case. There had been no malicious, insulting, oppressive or highhanded behaviour here, rather a failure to continue support that had been in place and a failure to remove the prospect of something happening in the future (a limited amount of lone working).

[57]He submitted that, although the Claimant had complained to Miss Ellwood about the prospect of lone working, she had not complained about the loss of support; that this failure to complain was unreasonable; and that we should exercise our discretion to decrease any award made by 25%.

[58]Upon my query, he did not submit that we should take a different approach to interest than the usual one set out in the relevant Regulations.

[59]Mr Ludlow agreed that in relation to compensation for loss of earnings, if there was any, that we should calculate this under the discrimination head of damages and that the Universal Credit sums received should be deducted. Claimant

[60]In her impressive submissions for the Claimant, Ms Harkness in essence submitted that the Claimant loved her job at the Respondent. She saw it as a career and before the events complained about was doing well. Her injury to feelings award should be judged against the impact of such a loss. Mrs Harkness acknowledged (contrary to the original Schedule) that the award should be within the middle band of Vento but at the higher end. She referred to the Claimant’s loss of confidence, self-esteem, and her going into crisis very soon after the end of her employment.

[61]She submitted there was a loss of earnings here because:(1) the Claimant would not have resigned in any event had she had the support she needed: this was a career she was giving up and she had wanted to progress;

(2) the move to Loughborough was initially a temporary measure for support and only became permanent after the resignation. The caravan issue had not prevented the caravan from being lived in: it was because the Claimant would only receive SSP that she moved temporarily so that rent could be obtained on the caravan to pay for its finance.

(3) FDL were clear the Claimant should not work until her therapy was over. It was not the Claimant’s fault that there had been delays in obtaining it. It was reasonable for her not to look for work while an 18-week course of therapy was in the pipeline.

(4) Her fibromyalgia was controlled by medication and would not have prevented the Claimant from working for the Respondent.

[62]Ms Harkness argued that there was no likelihood of a gross misconduct dismissal here: the matter had not been investigated properly and, without hearing from the staff themselves, it was impossible to make that finding. She argued that one staff member had heard about the allegation from the other. She argued that the ‘taking items’ allegation could not be sustained bearing in mind that the receipt relied upon did not relate to ‘reduced items’ and the evidence had been lost.

[63]Mrs Harkness acknowledged that aggravated damages were not usual. She argued it was appropriate to take into account that the gross misconduct allegation the Claimant now faced had not been raised with her and this was to rub salt into the wound. She suggested that the Respondent’s treatment had been ‘cruel’.

[64]As to the grievance issue she pointed to our liability findings that Mr Bristow had advised the Claimant not to grieve so much; and it was reasonable for the Claimant to hope that Mrs Cepparulo, her confidante, would eventually get back to her. Legal Principles

[65]We are grateful to Mr Ludlow for setting the key principles out in advance for the assistance of Ms Harkness.

[66]Section 124(2) of the Equality Act 2010 provides that, if there has been contravention of Part 5 (as there has here), the Tribunal may make a declaration as to the rights of the complainant and order the Respondent to pay compensation to the complainant. Our judgment made appropriate declarations. The Claimant now seeks compensation.

[67]The amount of compensation under the EA corresponds to that which could be awarded by the County Court. Section 119 EA provides that it may grant any remedy which could be granted by the High Court in proceedings in tort. This includes compensation for financial loss. Section 119(4) EA provides that an award of damages can include compensation for injury to feelings.

[68]Discrimination is a statutory tort. The compensation awarded should put the Claimant, so far as is possible, in the position she would have been in had the discrimination not occurred.

[69]This is not necessarily an all or nothing assessment. The Tribunal may need to make an assessment of the Claimant’s prospects absent the discrimination, O’Donoghue v Redcar Borough Council

[2001] IRLR 615

. This may involve the identification, on the balance of probabilities, of a percentage chance of, for example, of not resigning. Where loss of earnings is concerned, income received since the dismissal must be deducted.

[70]In summary, our job is to construct the hypothetical world that the Claimant is likely have lived and worked in if there had been no discrimination.

[71]Compensation for unfair dismissal under the Employment Rights Act comprises two main awards: the basic award, which has been agreed by the parties; and the compensatory award - that financial loss ‘attributable’ to the dismissal. We can and should adopt the same approach to that award as we have set out above. (Technically speaking, the Polkey question does the same work as O’Donoghue.) We assess the chances of the Claimant staying or leaving absent the unfair dismissal. Similarly, income received since the dismissal must be deducted, except in relation to some welfare benefits. In the unfair dismissal regime, UC is deducted by the DWP in a recoupment process. The other differences in unfair dismissal compensation are that there is a cap on the compensatory award of 52 weeks’ pay and no interest can be awarded on the loss.

[72]In this case, the financial loss we would calculate in the financial loss award under the discrimination and unfair dismissal claims overlaps because one of the acts of discrimination was dismissal. In order to do justice, we have therefore calculated compensation under the discrimination claim only because there is no cap on this award and interest on it can be awarded. There is therefore no unfair dismissal ‘compensatory’ award here and the DWP recoupment process does not apply.

[73]A Claimant is under a duty to mitigate her losses: in other words, if it is reasonable, to look for work.

[74]The award for injury to feelings must compensate the Claimant and not punish the Respondent. It must relate only to injury to feelings for the unlawful discrimination we have found, not in respect of the other matters complained of. We must beware not to make an award that is too low, which would diminish respect for the policy underlying anti-discrimination legislation; however, excessive awards can have the same effect.

[75]The bandings set out in Vento v Chief Constable of West Yorkshire Police

[2003] IRLR 102

CA are a useful starting point in assessing the level of injured feelings. We remind ourselves that Vento referred to the acts of discrimination in setting the bands and that our concern is to compensate for the impact of those acts/omissions upon the Claimant. We have regard to the severity of the unlawful treatment or omissions and their duration, but only insofar as this helps us to judge their impact upon the Claimant’s feelings. We consider the period of time over which the Claimant has suffered or is likely to continue to suffer injured feelings.

[76]The Vento bands refer to injury to feelings for less serious cases (the lower band), more serious cases (the middle band) and the most serious of cases (the upper band). We have applied the Presidential Guidance (updated 23 March 2018) to uplift the original Vento figures to account both for inflation and the decision in Simmons v Castle

[2012] EWCA Civ 879

. The relevant middle band is £8,800- £25,700.

[77]Where there are multiple acts of discrimination or detriment then it is usual to make a global award of injury to feelings in order to avoid double-counting.

[78]An aggravated damages award is to compensate for injury to feelings where, there has been malicious, insulting, oppressive or high-handed behaviour by the Respondent in committing the act of discrimination, see Alexander v Home Office

[1988] ICR 685

CA. Some cases suggest subsequent conduct can be taken into account, for example, where a Respondent plainly does not take a complaint seriously.

[79]Under section 207 of the Trade Union and Labour Relations (Consolidation) Act we can consider whether to decrease any relevant award by up to 25% where there has been an unreasonable failure to follow the ACAS Code of Practice on Discipline and Grievance. So far as relevant, the Code provides, under the title ‘Let the employer know the nature of the grievance’ at paragraph 32: If it is not possible to resolve a grievance informally employees should raise the matter formally and without unreasonable delay with a manager who is not the subject of the grievance. This should be done in writing and should set out the nature of the grievance.

[80]Under the Employment Tribunal (Interest on Awards in Discrimination Cases) Regulations 1996, SI 1996/2803 as amended, the Tribunal must consider whether to award interest on past loss of earnings and injury to feelings. Under the Regulations: for past financial loss the interest period begins on the mid-point date (from the act of discrimination to the date of calculation) and ends on the day of calculation. For injury to feelings the interest period begins on the date of the act of discrimination and ends on the day the amount of interest is calculated, reg 6(1). The calculation date is 14 October 2020. Application of Legal Principles and Facts to Issues

[81]We set out our calculation of the award we make in Appendix 1.

[82]In order to adopt the approach we set out above we have taken the discrimination issues first. Issue 1.4 What would have happened if the discrimination had not occurred?

[83]We have to consider what were the chances, absent the discrimination, of the Claimant staying in work. In other words, with the support in the form that Mrs Cepparulo originally gave (a mentor/confidante) and, without the prospect of lone working, what are the chances the Claimant would have stayed in employment. Alleged Misconduct

[84]First, we have considered what the chances are, if any, of the Claimant being dismissed for gross misconduct.

[85]We consider that, had the Claimant returned to work, then, as advised by Miss Ellwood, Mr Gold would have undertaken a ‘fact-find’ investigation with her. She would have denied borrowing £10 and denied taking reduced items without paying for them. She would have referred to the staffing difficulties and suggested her absence meant she was a convenient person to point to. She would have relied on the absence of CCTV. She would have used the receipt to show the goods were not reduced and were not ‘a few’.

[86]We also find that the Claimant would have found this fact-find extremely upsetting and stressful.

[87]After we doubt, given that the receipt plainly does not relate to reduced items, that Mr Gold would have pursued the issue of taking items without paying for them. That left the borrowed £10. In relation to that, he may well have concluded that the staffing difficulties cast doubt on who to believe. We take the view that, in order to ease relationships at work, he may well have decided to deal with the matter informally just as he had done with the two supervisors who were at some fault for not following the security policy. For these reasons we consider that there is only a 50% chance of the matter going to a disciplinary hearing.

[88]If a disciplinary hearing had taken place, we are unanimously clear that there was no chance of dismissal here. We rely on the following facts: the evidence for the ‘taking items’ allegation was very very slim: the receipt relied upon just does not support the allegation at all; how Mr Gold dealt with the supervisors, who he accepts were also at fault, sets a low baseline as to the seriousness of the matter; the disciplinary procedure suggests only serious breaches of the security policy amount to gross misconduct; this is not an allegation of stealing; the Claimant had a clean disciplinary record; and, finally, the comparable cases relied upon by Mr Gold in his evidence and set out in the bundle where dismissal has followed all include an element of fraud, which is missing here.

[89]What we are equally clear about however, is that this matter would have been a further stressful event at work, and we weigh that extra stress in the balance in considering the chances of a future resignation and/or ill health. Mitigation

[90]We do not agree that, because the Claimant applied for a job the day before her resignation, she has been fit for work since. A few weeks later the loss of her job sank in and the Claimant went into crisis. Since then, according to her doctors’ fit notes, the January 2020 letter from FDL, all accepted by the DWP, the Claimant is unfit for any kind of work or work-related activity. But there have plainly been ups and downs in the Claimant’s condition: her mental health improved in 2019, but her fibromyalgia declined. We have therefore discussed between ourselves whether, at some point, it would have been possible for her to do a non-stressful job part-time. The Claimant was not cross-examined about this and certainly the medical evidence would not suggest the Claimant could sustain even a limited role. The only evidence we have is that she was, in around February 2019 thinking about volunteering. This is insufficient, in our view, to consider that the Claimant acted unreasonably in not searching for work.

[91]The Claimant’s plan for retraining was very much for the future and she has not taken steps towards this plan because she has not been well enough to do so. This plan certainly does not break the chain of causation until steps are taken towards it. Chances of Continuing in Work

[92]We have then considered the other factors relevant to whether the Claimant could have continued in work.

[93]We found that Claimant’s mental health disability and fibromyalgia was adequately managed unless she was subject to extra stress.

[94]The factors that support the prospect of the Claimant staying in work are:

[95]The Claimant loved her role and saw it as a career. She had had 6 years with the Respondent during which she had had the satisfaction of promotion and progressing to a ‘concept’ store.

[96]She had, prior to Culver, been a successful store manager, and had been earmarked by one manager as Area Manager material. Her job gave her self-esteem and confidence.

[98]Although the role was stressful and physical, to some degree, she had undertaken it for some years without resigning when support was in place.

[99]There were other outside stressors in the Claimant’s life, but she had been able to retain her job and return to it after her initial breakdown, and the 5-week sickness absence in 2017, while manager of Culver.

[100]The housing stress, the loss of her job and this litigation all contributed to the Claimant’s ill health and contributed to her lack of fitness for work after termination. None of these stressors would have existed absent discrimination. We conclude that absent these stressors there was a chance that her mental and physical health would have been manageable as far as work was concerned.

[101]Although Culver was a ‘step-up’ as a larger store and this brought inherent stresses, she had done the job for 18 months, for 12 months of that she had had the support of Mrs Cepparulo. In that time Culver’s sales had improved: it exceeded targets in all months except one since December 2017 before her sickness absence. As regards sales her store was going in the right direction and this would have given her some improved confidence. a. We have found there was a real prospect that with support and no lone working that the Claimant could have remained in work (J184).

[102]The factors that suggest there was a chance the Claimant might have resigned, even with support/no prospect of lone working are:

[103]Culver’s KPIs apart from sales were ‘in the red’ and this would have put her under pressure.

[104]Even with the adjustment to lone working, there were going to be some staff reductions and there were already some staffing problems. These would have been stressful.

[105]The Claimant would have continued to experience stressors outside of work: the caravan dispute and relationship stressors.

[106]The Claimant emphasised again in her evidence to the remedy hearing that she really wanted a head office role. Failure to offer her one was not discrimination but may have created a sense of grievance for her leading her to leave.

[107]Similarly the Claimant’s dislike of Mr Gold could have caused her to leave even though we have found his management of her generally was not discrimination.

[108]The Claimant is likely to have viewed the disciplinary investigation and possible disciplinary hearing as extremely upsetting and stressful; however this would have been reduced once she was not dismissed.

[109]The development of fibromyalgia in 2018/9 was an additional physical problem for the Claimant. The job was physical to some extent. This, too, is one of the conditions that her GP and the DWP have taken into account in deciding that she is not currently fit for work. However, this was a developing complaint. It was not fully blown at the time of the resignation. It worsened in 2019. There is the chance that the Claimant would have been able to manage with sick leave and medication.

[110]The Claimant has been certified as unfit for work since her resignation. We are of the view that this would not necessarily have been the case if she had remained in work and been supported in it. Over time, however, the chances of her staying in work decreased, because her mental health therapy was delayed and her fibromyalgia developed from being initially in her hands to all parts of her body.

[111]Such is the mix of factors that this is not a case, in our judgment, where it is certain that the Claimant would have left or would have stayed. We have weighed each of these factors in the balance. We give considerable weight to the Claimant’s resilience in the job while she had appropriate support and to the fact that she viewed her job as a career. We take into account that she could have continued to take some sick leave where necessary without losing her job. We note that the therapy that she has already received has helped her with insight and coping mechanisms that are likely to have assisted her in staying at work. We note the stresses of the job, but they were not all in one direction with sales targets improving. The support we have suggested would have helped to some extent to soak up these stressors. But we also weigh in the other direction that the Claimant had significant complaints about work that we have not found in her favour and her perception of these problems at work may well have increased with the continued ‘keen’ management of Mr Gold and the inevitable disciplinary investigation. Doing the best that we can, with this hypothetical question, we put the percentage chance of the Claimant leaving work in the first year at 25%.

[112]From the first anniversary of the termination, we put the percentage chance of the Claimant leaving the Respondent at 50%. We do so to recognise that the outside and work stressors time are likely to have accumulated to make it more difficult for the Claimant to stay in work: in particular: her having to improve the store’s KPIs, in addition to sales; the day to day stressors of managing a bigger store with the staffing stressors that this brought on top of the staffing difficulties that already existed; the development of worsening fibromyalgia, which is likely to have necessitate more time off at times of stress; the likelihood that even with support her mental health difficulties would have required more time off, especially in the light of delays in obtaining specialist treatment; those longer periods of sick leave increasing the chance of a fair capability dismissal.

[113]We consider that this 50/50 chance would continue into the future but that at 6 months after our calculation date of 14 October 2020 the chance that that the Claimant would have continued in work will have reduced to nil. Ultimately, all of those stress factors would have damaged her mental health and physical health in combination, so as to militate against the Claimant managing to stay in the role.

[114]We have calculated loss of earnings in accordance with these percentage chances. We have deducted income received in the form of Universal Credit. We refer to Appendix 1 for the calculation. We calculate loss of earnings to be £5,295.53.

[115]We calculate pension loss separately because it is a future loss, albeit here calculated for ease by reference to lost pension contributions. Deductions of income and interest therefore do not apply. Issue 1.5 What injury to feelings award should be made?

[116]We agree with the parties that the starting point for level of injury to feelings should be in the middle Vento band. This is because the Claimant lost her job as a result of the discrimination and this had a significant impact on her: this is a serious case.

[117]We have taken into account the range of psychiatric awards for moderate injury. We have taken into account the Claimant’s need to spend time in a crisis house. The fact that early on, she experienced intense anger and continues to feel the loss of a job she saw as a career. The award compensates not just disappointment but loss of real confidence that came with the role for the Claimant: she was excited to be managing such a large store. She really felt the loss of Mrs Cepparulo’s support. And she was also really worried by the prospect of lone working: a matter that she consistently complained about. All of these factors point towards the higher end of the middle band. While the degree of the Claimant’s response might be enhanced by her personality disorder: we must take the Claimant as we find her.

[118]Before finally settling on a figure, we discounted for the injured feelings that arose because of matters of complaint that were not discrimination (the leak, the lift, the cages, Mr Gold, not being transferred to head office). The Claimant experienced hurt feelings in the form of resentment and upset about all of those matters, too. We have also recognised that the Claimant would have had ongoing mental health difficulties in the absence of discrimination and would have had experiences in her life that would have caused her upset absent the discrimination: we have discounted for this.

[119]Finally we have stood back and considered the award by reference to those other comparable cases referred to by Mr Ludlow; to the value of money generally; and in order to ensure that the respect for awards under the Equality Act is maintained.

[120]Taking all of this into account we award £16,500 to compensate the Claimant’s injury to feelings arising from discrimination. Issue 1.6 Whether an aggravated damages award should be made and, if so, at what amount.

[121]We agree with Mr Ludlow that the conduct of the Respondent has not reached the threshold whereby we could award separately aggravated damages. This is not a case where the acts of discrimination were malicious, high handed, oppressive or insulting. Though that is not to reduce the seriousness of them. Furthermore, our Injury to Feelings award has compensated for all the injured feelings the Claimant has experienced because of the discrimination. We have taken the impact of the seriousness of constructive dismissal into account in assessing this award.

[122]Nor is this a case where the Respondent’s behaviour in defending the claim warrants an aggravated damages award. Justice requires that employers are allowed to put their case. Just because the Tribunal has not agreed with it, does not mean that it was a case put in bad faith. The allegations of gross misconduct were not fabricated by Mr Gold: the contemporaneous documents shows they were made to him and he was bound to investigate them. We understand that feelings run high in these cases but that is not what aggravated damages are about.

[123]It is worth us recording Miss Ellwood’s evidence of the efforts the Respondent has made after our liability decision to improve its approach in particular to employees with mental health difficulties. These include the recruitment of a certified counsellor as a Colleague Welfare Manager; the training of 24 colleagues as mental health first aiders; the intention to roll out mental health training across the Respondent; the provision to senior leadership and HR of copies of A Guide to Mental Health at Work; the training of managers in the Respect For You policy; the plan to show a mental health awareness video for all colleagues; the new contract with an occupational health provider; the plan to minimise lone working; and the giving of mandatory training to line managers in HR practice. These efforts show an employer keen to do better, keen to take a Tribunal decision seriously and act on it.

[124]We would also urge the Respondent to put in place a system that ensures that the ‘ball is not dropped’ between HR and managers so that adjustments for disabled employees are continued when they or their managers move on. Issue 1.7 Interest

[125]We have decided to award interest in accordance with the usual principles, set out in Mr Ludlow’s skeleton argument paragraphs 61-66. We have considered whether a serious injustice would be done to the Respondent by our calculation of interest for the period of delay caused by coronavirus and/or because the Judgment Act rate of 8% no longer reflects financial reality. Upon our asking him directly, Mr Ludlow did not submit we should alter our approach from the normal calculation of interest in this case. We have also concluded that this delay has been one of the uncertainties of litigation and cannot be taken into account. We have also noted that the weekly loss of earnings figure agreed by the parties does not take into account any annual increase in earnings that may have occurred since 2018 and therefore the very generous interest rate, as a matter of justice, is likely to incorporate that. And of course some interest could have been avoided if the Respondent had paid what it admits it owed earlier. For these reasons we award interest at the Judgment Act rate of 8% for the periods set out in the Regulations.

[126]We refer to Appendix 1 for the interest figures. Additional Issue: Grievance

[127]We consider that there was no unreasonable failure to bring grievance here. The Respondent has accepted that the Claimant had complained to Miss Ellwood, about the prospect of lone working, as well as originally to her line manager, Mr Gold. In relation to Ms Cepparulo’s lack of response to her email of January 2018 and subsequent lack of support and failure to hand that support role to another appropriate person, we find it reasonable not to bring a grievance in the light of the discouragement the Claimant had previously received. Issues 1.2 and 1.3 Compensatory Award

[128]We do not make any award for compensatory loss in the unfair dismissal because to do so would be to double-count. Employment Judge Moor 3 November 2020 APPENDIX ONE CALCULATION OF LOSS Agreed Figures: Gross weekly pay £429.03 Net weekly pay £349.27 Weekly pension loss £7.51 Effective date of termination 25 July 2018

a. A. Injury to Feelings 16,500 Interest on Injury to Feelings at 8% per annum from 31 May 2018 – 14.10.2020 (867 days) 867/365 x 8% = 19% x 16500 = 3,135

b. B. Past Loss of Earnings and Pension In order to avoid double-counting under unfair dismissal/discrimination losses we have calculated loss of earnings under discrimination provisions the higher of the two because they do not have a statutory maximum and attract interest. From 26 July 2018 – 25 July 2019 In the first year, 25% chance of resignation in any event i.e. 75% of earnings lost. 349.27x 52 x 75% = 13,621.53 Minus income received: UC paid 30th of month in respect of the period up to 24th of the month. 213+272+601+601+601+881+854+852+860+860 + 860 +871 (8326) 5295.53 From 26 July 2019 to calculation date 14 October 2020 50% chance of leaving work 63 weeks and 5 days duration i.e. 64 working weeks. 349.27x 64 x 50% = 11,176.64 Minus income received UC increased in April to £979 per month. Allocate all of October 2020’s UC to future loss as paid at end Oct 2020 885+885+(856 x 6) +(979 x 6) = (12,780.00) i.e. as soon as chance of loss falls to 50% loss of earnings stops Total Past Loss of Earnings 5295.53

c. C. Interest on Past Loss from midpoint between date of discrimination and date of calculation 867/2=433.5 days/365x 8%= 9.5% x 5295.53 = 503.08 No future loss of earnings because receipt of UC more than outweighs 50% of lost earnings 0

d. D. Pension Loss We use a simple calculation as to pension agreed by the parties by awarding the equivalent of the proportion of lost weekly pension contributions as adjusted by our decision. Pension loss represents a future loss: there is therefore no interest payable on these amounts. The parties have agreed pension loss at £7.51pw. 75% x 52 x 7.51 292.89 50% x [64 + 26] x 7.51 337.95 630.84

e. E. Basic Award 429.02 6 weeks (and agreed) 2,574.12

f. F. Loss of Statutory Rights (agreed) 500.00 Total Award (A+B+C+D+E+F) £29,138.57