Mrs K Morjaria v Barclays Execution Centre Ltd: 3203893/2021

EMPLOYMENT TRIBUNALS

Case No 3203893/2021

Between

Mrs K MorjariaClaimant

Barclays Execution Centre LtdRespondent

Before

Employment Judge Park

Members

Mrs M Legg

Mr M Rowe

In person for claimant

Ms A Beale (instructed by Counsel) for respondent

Date 1 August 2024

JUDGMENT

[1]The claimant’s claims for discrimination arising from disability under section 15 Equality Act 2010 are not well founded and are dismissed.

[2]The claimant’s claims for failure to make reasonable adjustments under section 20 Equality Act 2010 are not well founded and are dismissed.

[3]The claimant’s claims for harassment related to disability under section 26 Equality Act 2010 are not well founded and are dismissed.

[4]The claimant’s claims for victimisation under section 27 Equality Act 2010 are not well founded and are dismissed.

[5]The claimant’s claims that she was subjected to detriments on the ground of having made protected disclosures under section 47B Employment Rights Act 1996 are not well founded and are dismissed.

[6]The claimant was not constructively dismissed and her claims for unfair dismissal (ordinary unfair dismissal under section 94 Employment Rights Act 1996 and automatic unfair dismissal under sections 103A and 104(1) Employment Rights Act 1996) are not well founded and are dismissed.

REASONS

[1]The claimant’s claims were for:2.1 discrimination arising from a disability (section 15 Equality Act 2010);

2.2 failure to make reasonable adjustments (section 20-21 Equality Act 2010);

2.3 harassment on the grounds of disability (section 27 Equality Act 2010);

2.4 victimisation (section 27 Equality Act 2010);

2.5 detriment on the grounds of having made a protected disclosure (section 47B Employment Rights Act 1996);

2.6 unfair dismissal – ordinary unfair dismissal (section 98 Employment Rights Act 1996);

2.7 automatically unfair dismissal due to having made a protected disclosure (section Employment Rights Act 1996); and

2.8 automatically unfair dismissal due to having asserted a statutory right (section Employment Rights Act 1996).

[2]The claimant’s employment terminated because she resigned. Claims 2.6- 2.8 are based on the claimant saying she was constructively dismissed and that dismissal was either ordinarily unfair or automatically unfair.

[3]The parties had previously agreed a list of issues. Each head of claim was broken down to include a list of specific factual allegations. Several factual allegations were included under multiple heads of claim. The similar factual allegations under each of claim were not worded in precisely the same way but the broad gist of the factual allegation was the same.

[4]The full list of issues as agreed between the parties is not repeated in full in this judgment. The Tribunal’s summary of the claims and issues, based on the agreed list of issues is set out below. This includes everything identified within the list of issues but in a different format for the purposes of this judgment.

[5]The claimant had previously been directed to provide evidence in respect of disability. The claimant stated she was disabled due to irritable bowel syndrome (“IBS”), depression and anxiety. During this hearing the claimant accepted that the depression and anxiety were interlinked so she did not rely on anxiety as being a separate free-standing disability.

[6]The respondent accepted that the claimant was a disabled person because of her depression but only from October 2019, when it also accepted it had the requisite knowledge. The respondent did not accept that the claimant was disabled by reason of her IBS.

[7]The Tribunal will need to determine:7.1 the date when due to her depression the claimant was disabled for the purposes of the Equality Act 2010;

7.2 if that was earlier then October 2019 whether the respondent knew or ought reasonably to have known of this; and

7.3 whether the claimant was disabled due to her IBS and, if so, when the respondent knew or ought to have known about this. Protected acts under the Equality Act 2010 and qualifying disclosures under the Public Interest Disclosure Act 1998 and Employment Rights Act 1996

[8]The claimant identified different occasions when she said she either did protected acts under the Equality Act 2010 or made a qualifying disclosures under the Employment Rights Act 1996. These are as follows:8.1 an email to Mark Gibbins dated 5 March 2019 – said to be both a protected act and a qualifying disclosure;

8.2 her formal grievance dated 6 March 2019 – said to be both a protected act and a qualifying disclosure;

8.3 the content of discussions during the grievance hearing with Linda Hall on 19 March 2019 – said to be both a protected act and a qualifying disclosure;

8.4 her grievance appeal dated 14 May 2019 – said to be both a protected act and a qualifying disclosure;

8.5 the content of discussions during the grievance appeal hearing on 20 June 2019 – said to be both a protected act and a qualifying disclosure;

8.6 her second formal grievance dated 11 December 2019 – said to be both a protected act and a qualifying disclosure;

8.7 the content of the hearings and appeals in respect of the second grievance – said to be qualifying disclosures only;

8.8 disclosures made to Mr J Crook on 13 March 2020 – said to be a qualifying disclosure only; and

8.9 the claimant’s third formal grievance – said to be a protected act only. Factual allegations and associated claims – discrimination and whistleblowing claims

[9]The following table sets out in chronological order the claimant’s claims. We have included the dates, factual allegations, and the heads of claim the claimant pursues in respect of each allegation of fact. For completeness we have cross referenced with the numbering from the parties’ agreed list of issues. Date Factual allegations Type of claim Reference in original list of issues A 19 March 2019 Failing to postpone the Reasonable 6 (a)-(c) grievance hearing adjustments B March 2019 Unnecessary delays to Victimisation 16 (i) onwards the grievance process Detriment 24(h) C 2 Oct – 16 Dec Placing on the claimant Discrimination 3 (a) 2019 an inappropriate arising from a workload during her disability phased return, also described as a heavy or Reasonable 7 (a)(i) too heavy workload. adjustments Harassment 12 (b) (described as a failure to consider impact of targets and goals) Victimisation 16(a) Detriment 24(b) D 2 Oct – 16 Dec Setting the claimant Discrimination 3 (b) 2019 inappropriate targets arising from a Reasonable 7 (a)(ii) Harassment 12 (b) E 14 Oct 2019 Salary reduction Victimisation 16 (d)(a) Detriment 24 (a)(i) F Oct 2019 Constantly reminding Harassment 12 (a) onwards the claimant that from January 2020 she was Victimisation 16 (b) expected to work alongside Mr Nikolov Detriment 24 (c) G 29 Oct 2019 Failure to consult the Victimisation 16 (c) claimant about the return to work process Whistleblowing 24(d) and reasonable H 14 Nov 2019 Reducing the claimant’s Discrimination 3 (c) pay to a pro-rata level arising from a I 6 Dec 2019 Expecting the claimant Discrimination 3(d) to return to full arising from a substantive duties disability without adjustments. Reasonable 8 (c) Harassment 12 (c) Victimisation 16 (f) Detriment 24(e) J 6 Dec 2019 Salary reduction Detriment 24 (a)(ii) K 11 Dec 2019 Informing the claimant Discrimination 3 (e) that pay during absence arising from a was discretionary and disability would not increase. Victimisation 16 (g) Detriment 24(f) L 19 Dec 2019 Sanctioning an Discrimination 3(f) Occupational Health arising from a report and overruling disability the claimant’s return to work. Victimisation 16 (e) and (h) Requesting a an Detriment 24(g) Occupational Health (whistleblowing) report that determined the claimant was not fit to work without the consent or participation of the claimant. M 19 Dec 2019 – Medical suspension Victimisation 16 (j) 7 Jan 2021 without the benefit of full pay from 19 Dec 2019 – Detriment 24(i) 7 Jan 2021 (whistleblowing) N 3 Jan 2020 Declaring the claimant Discrimination 3(g) unfit for work and arising from a effectively suspending disability her Reasonable 9 O 5 Feb 2020 Notifying the claimant Reasonable 10 (a)(i) that her pay would adjustments reduce to zero Harassment 12 (d) Victimisation 16 (d)(b) Detriment 24 (a)(iii) P 13 Feb 2020 Notifying the claimant Discrimination 3 (h) that her bonus was arising from a reduced due to her disability absence without 24 (a)(iv) consideration of Detriment mitigating factors (whistleblowing) Q 27 Feb 2020 Notifying the claimant Discrimination 3 (i) she would not receive arising from a an increase to base disability salary Reasonable 10 (a)(ii) Victimisation 16 (d)(c) Detriment 24 (a)(v) R 10 March 2020 Declining the claimant’s Discrimination 3 (j) application for salary arising from a support from BIPS disability Reasonable 10 (a)(iii) Victimisation 16 (d)(d) Detriment 24 (a)(vi) S Dec 2019 – Unnecessarily delaying Victimisation 16 (i) May 2020 the second grievance Detriment 24 (h) T 29 June – 9 Declining to uphold the Discrimination 3 (k) Sept 2020 claimant’s appeal arising from a against outcome of disability BIPS Reasonable 10 (a) (iv) Victimisation 16 (d)(e) Detriment 24 (a)(vii) U 13 February Salary reduction Victimisation 16 (c)(d)(e) 2020 and (f) Detriment 27 February (whistleblowing) 24 (a)(iv)-(viii) 10 March 2020 29 June 2020 – 9 September 29 June 2020 – 4 February Unfair dismissal

issues

[10]In the agreed list of issues the claimant listed a number of terms of her contract that she says were breached by the respondent. Some of these are described as express terms and others as implied terms. These are:10.1 trust and confidence (implied);

10.2 to deal promptly with grievances and grievance appeals (implied);

10.3 to make reasonable adjustments (implied);

10.4 duty of care for health and safety (implied);

10.5 to follow appropriate procedures for grievances (implied and express);

10.6 not to abuse the sickness absence policy (implied);

10.7 not to unlawfully deduct the claimant’s wages (express);

10.8 to follow appropriate procedures for suspension (express); and

10.9 to increase the claimant’s base salary despite her absence (express).

[11]In the list of issues the claimant did not identify any particular factual allegations relating to the respondent’s conduct which she states breach any of those terms. In the absence of the claimant expressly setting out what alleged conduct is said to breach each of the above terms we proceeded on the basis that the claimant is relying on the factual allegations listed in her other claims.

[12]The Tribunal will need to make findings of fact in respect of all the claims listed above.

[13]The parties had agreed the list of issues in April 2022 and there had been no further hearing for case management after that date. At the outset of the hearing the Tribunal asked the claimant to consider whether she was still pursuing each claim as identified in the list of issues. During the course of the hearing and in closing submissions the claimant confirmed she was no longer pursuing the following claims:13.1 Her claim about the failure to postpone the grievance hearing in March 2019 (point A in the above summary)

13.2 Her claim for harassment and failure to make reasonable adjustments in respect of returning to full substantive duties in December 2019 (under point I in the above summary)

13.3 Her claims based on the allegation that on 11 December 2019 she was told that pay during absence was discretionary and would not increase (point K in the above summary).

13.4 Her claim for harassment in respect of being notified her pay would reduce to zero in February 2020 (under point O in the summary above). Procedure, documents and evidence heard

[14]The claimant was initially represented by counsel. At the start of the second week of the hearing the claimant informed the Tribunal that due to unforeseen circumstances her counsel was no longer able to represent her at the hearing. The claimant advised that she wanted to continue and represent herself. The respondent was represented throughout the hearing.

[15]A paginated bundle of documents had been prepared. During the hearing a limited number of additional documents were disclosed and provided to the Tribunal. There was no objection by either party to any of these documents being considered.

[16]The claimant had prepared a witness statement and was cross examined. The respondent called six witnesses who were cross examined. They were Linda Hall (at the relevant time Head of BX Management Office and Execution Risk Management), James Alexander (Managing Director – Head of Business Management Delivery and Control), Karin Forbes (at the relevant time HR Business Partner to Barclays Execution Services), Gillian Arthur (at the time Head of Internal Outsourcing and Appointed Representative), Shane Hawkins (at the time Managing Director in the Run the Bank Technology Team) and Mike Morrison (at the time Director of Barclays Financial Assistance Unsecured Products).

[17]Shortly before the hearing the claimant had made an application for two witness orders. One additional witness was Mark Gibbons, who was Managing Director, Head of BX Management Office, in early 2019 and had line management responsibility for the claimant. The other was Alastair Blackwell, Chief Operating Officer, BX Risk, Finance and Treasury. We heard representations on the first day of the hearing from both parties on whether or not witness orders should be made in respect of Mr Blackwell and Mr Gibbons. We also heard that Mr Blackwell was currently based in New York. We decided not to grant the claimant’s request for witness orders. The first day of the hearing was set aside for the panel to read statements and documents. We made the decision on whether to grant the witness orders after we had spent time reading and familiarised ourselves with the case. Having done so we could not see the relevance of the evidence of either potential witness. Mr Blackwell had no direct dealings with the claimant after early 2019 and his involvement pre-dates any of the matters which form the basis of the claim. Mr Gibbons was involved for slightly longer, but this ceased in June 2019. The main points on which the claimant seemed to want him to give evidence related to her first grievance, which had been raised in March 2019. The substance of this grievance did not form part of the claims being considered by this Tribunal and it merely formed part of the background context. We did not consider it was necessary for us to hear from Mr Gibbons and adding another witness would be disproportionate, given the number of witnesses who were already giving evidence. We also noted that the hearing was due to last 9 days which were spread over 3 weeks. If during the hearing it became apparent that Mr Gibbons’ evidence may be of relevance we could revisit this decision.

[18]During the hearing there was a heatwave in London. The air conditioning at the hearing centre was not functioning properly and the Tribunal room often became excessively hot by the afternoon. The Tribunal offered the parties the option of converting the hearing to CVP to allow the parties and Tribunal to attend the hearing remotely in cooler conditions. The claimant said that she would prefer to remain in person and specified this as a reasonable adjustment. On that basis the Tribunal agreed to continue with the hearing in person. Adjustments were made to deal with the heat, including having additional breaks and starting and finishing earlier where practical.

Findings of Fact

[19]The findings of fact we have made which are set out below are based on the issues identified above. We have limited our findings to those factual allegations that underlie the claimant’s various claims and other matters that are direct background and context. We also heard evidence on other background matters. Some of these remained contentious, and there were disputes of fact between the party. We have not reached any findings of fact on those background matters as they go beyond what we need to determine. We have just noted the background where relevant, trying to present this in a neutral manner.

[20]We carefully considered all the evidence provided, both documentary and witness evidence. A lack of reference to any particular document or something that was said by a witness does not mean it was not considered.

[21]This was a case where the majority of events were well documented. Records were taken of formal meetings and often followed up in correspondence. There was substantial email correspondence between the claimant and various individuals employed by the respondent along with other internal correspondence or notes. We were provided with copies of lengthy email discussions between the claimant and others. In these discussions the claimant often provided detailed comments on the matter under discussion and further information. The result of this extensive documentary evidence is we often found there was little dispute about what had occurred. The disputes generally related to interpretation of those events. General background

[22]The claimant started to work for the respondent in January 2014.

[23]The claimant’ s contract of employment set out her entitlement to basic pay. This was reviewed annually but there was no contractual right to any increase or pay rise.

[24]The claimant’s contract also included a bonus provision, referred to as a ‘discretionary incentive award’. This was discretionary and subject to any arrangements that were put in place by the respondent. It was broadly based on performance. There was guidance in place to assist with deciding on incentive awards for employees who had been on long term sick leave.

[25]The respondent had an enhanced sick pay policy. This was discretionary and not a contractual entitlement. The claimant’s contract expressly stated that the payment of any salary and allowances during sickness was at the respondent’s discretion. During the relevant time the sick pay policy provided for up to 26 weeks’ sick pay based on normal pay. There was no entitlement under the respondent’s sick pay policy to anything other than statutory sick pay after this point. For employees who were on long term sick leave, the respondent provided access to the Barclays Income Protection Scheme (“BIPS”). This was administered by UNUM. An employee on long term sick leave could make an application to UNUM who would make the decision on whether they were covered and should receive payment. If an application was successful the individual would receive 65% of their basic pay for a specified period. The Claimant’s first grievance and absence from work

[26]In July 2018 the claimant was appointed to the role of Vice President in the BX Management Team. She was managed by Nik Nikolov.

[27]The claimant has Irritable Bowel Syndrome (“IBS”). She was diagnosed with this in 2015. On starting her new role the claimant informed Mr Nikolov of her condition in an email. She also let him know specific practical needs she had to help her manage her condition.

[28]The claimant hoped in due course to be promoted to the role of Director. She understood that this was likely. We were provided with emails from Mr Nikolov that made it clear he was supportive of the claimant’s potential promotion. The claimant did well in her new role and in 2018 was given a performance review of ‘Outstanding-Outstanding’, which was the highest possible score.

[29]Things changed in February 2019. The claimant raised a grievance on 6 March 2019. We are not going to make detailed findings of fact about the events that led up to the grievance as they do not form part of the claimant’s claim. These events remain contested by the parties. By way of background we note the following:29.1 The claimant believed she had been recommended for promotion in late 2018. In February 2019 she had discussions with Alasdair Blackwell, Chief Operations Officer in BX Risk. She found out Mr Blackwell did not know about her hope to be promoted. The claimant believed that Mr Nikolov had lied to her about this in 2018.

29.2 The claimant discussed this and some other concerns about Mr Nikolov with Mark Gibbins, Mr Nikolov’s line manager. Mr Gibbins informed the claimant that Mr Nikolov would be provided with executive coaching.

29.3 The claimant told Mr Gibbins she no longer wanted to be managed by Mr Nikolov. Mr Gibbins informed the claimant that she would need to raise a grievance to facilitate a change in line manager.

[30]The claimant emailed Mr Gibbins a couple of times on 5 March 2019. She said she was going to raise a grievance, but she did not give any indication of what the grievance would be about. The emails contain no actual factual allegations or any indication that she may be complaining about discrimination in any form. She did inform Mr Gibbins her mental and physical health were suffering.

[31]The following day, 6 March 2019, the claimant raised her first formal grievance. This was 13 pages long. In this she set out a detailed chronology of events during February and March 2019, including her discussions with Mr Blackwell, Mr Gibbins and Mr Nikolov. She also set out what she wanted as an outcome. The key point, which she reiterates at various points throughout the grievance, was that she wanted a change in her line management. The claimant included the following in her grievance:31.1 “This formal grievance is being raised in respect of some specific comments made by my line manager, Mr N Nikolov, and certain behaviours demonstrated by him in discussions and interactions with me, which have resulted in the complete breakdown of my trust and confidence in his ability to continue being my line manager.”

31.2 “My grievance is solely focused on his behaviours and comments in his interactions with me, as my line manager, and his responsibilities as my line manager.”

31.3 She is making the grievance because Mr Gibbins had told her “the only way to change my reporting line, even on an interim basis, was if a formal grievance had been raised”.

31.4 As one of the outcomes, she sought an apology from Mr Nikolov “for the detrimental impact his behaviours and comments have had on my development and more importantly my personal well-being”.

[32]The claimant has relied on this grievance as being a protected act for the purposes of the Equality Act 2010 and being a qualifying disclosure. In respect of those arguments, we make the following findings about the contents of the letter:32.1 There is no express complaint of discrimination and neither does the claimant make a reference to any disability or other protected characteristics.

32.2 The factual allegations purely relate to the claimant’s own interactions with Mr Nikolov and subsequent discussions with Mr Blackwell and Mr Gibbons. She does complain about a break down in trust and confidence in Mr Nikolov as a manager.

32.3 The claimant makes references to some of her colleagues in the letter. She suggests that two other colleagues have also experienced difficulties with Mr Nikolov. She does not provide any other details in respect of this, just general comments that they have raised concerns about his competency.

32.4 In respect of others, she states that she hopes “by raising my concerns formally through the Barclays grievance process, I can encourage others in my team to have faith in the process and also formally report the challenges that they have faced with Nik”.

[33]As a matter of fact, we have concluded that the claimant’s purpose in raising the grievance was to address her own complaints about Mr Nikolov and to facilitate a change in line manager. We find any reference she made to others having concerns was incidental and limited to just those individuals within her own team who were managed by Mr Nikolov.

[34]On 11 March 2019 the claimant was signed off work for a month. The note from her GP states the reason was stress at work and IBS.

[35]On 12 March 2019 the claimant emailed Mr Gibbins and informed him she was available for meetings about her grievance. She indicated that her illhealth was due to the ongoing grievance.

[36]The respondent had appointed Linda Hall to investigate the claimant’s grievance. The claimant attended a meeting with Ms Hall on 19 March 2019. The majority of the meeting related to the details of the claimant’s specific allegations about Mr Nikolov. In respect of this meeting we make the following findings:36.1 The claimant did not make any express complaint about discrimination or that anything she was complaining about was due to any disability or other protected characteristic.

36.2 She referred to others in the team having concerns with Mr Nikolov and suggests that there is a ‘systemic issue’. The focus was still on colleagues within her team. We concluded that the claimant referred to others because she wanted them to be interviewed as part of her grievance, i.e. she hoped they would corroborate what she said. This related to her own individual complaints.

36.3 During this meeting Ms Hall agreed that the claimant’s relationship with Mr Nikolov was irreparable.

[37]On 8 April 2019 the claimant was reviewed by Occupational Health. She remained signed off work with stress. Occupational Health reported on several symptoms the claimant was suffering from. Occupational Health noted that the claimant’s IBS was long term but her psychological symptoms were not. They also advised that they anticipated the claimant being able to return once the current work issues were resolved.

[38]Ms Hall interviewed a number of employees as part of her investigation. We are not making detailed findings of fact about the substance of the investigation, such as who was interviewed, as that is not of direct relevance to the matters we need to determine. The claimant’s complaints that we need to determine relate to the timescale and procedures. Our findings of fact in that respect are as follows:38.1 The respondent has a grievance procedure. This states that the “the grievance manager will invite the employee to a meeting as soon as reasonably possible and usually within 20 working days”. An update will be provided within 10 working days and at least every 10 days from then.

38.2 The procedure provides that “in normal circumstances the investigation should be completed within 20 days following the grievance meeting”. The grievance manager will then provide a response in writing.

38.3 The claimant raised her grievance on 6 March 2019. The claimant was interviewed by Ms Hall on 19 March 2019 which was within 20 working days.

38.4 Ms Hall provided the claimant with an update on 8 April 2019 and then advised her that her investigation was complete on 24 April 2019. This was 24 working days after the meeting, due to the Easter Bank Holiday.

38.5 Ms Hall sent the claimant the outcome by letter dated 2 May 2019.

38.6 Ms Hall interviewed 8 witnesses in total, in addition to the claimant. In evidence Ms Hall explained that it took time to produce the notes of the witness interviews and have them checked. We found Ms Hall’s explanation for why the investigation took slightly longer was credible and there was no evidence that any delay was unnecessary.

[39]Ms Hall partially upheld a few points but most of the claimant’s grievance was not upheld. Ms Hall found that Mr Nikolov was “overly hierarchical” and he had shared information about another individual, though not about the claimant. Ms Hall noted that the claimant did not want to return to work with Mr Nikolov as her line manager and she had discussed this with Mr Gibbins. She did not make any express recommendation that this must be accommodated as the outcome of the grievance. On this issue, we find that Ms Hall was merely reflecting the claimant’s preference.

[40]On 8 May 2019 the claimant was reviewed again by Occupational Health. They stated that the claimant was not fit to work but their advice in respect of the longevity of her psychological condition remained the same.

[41]On 14 May 2019 the claimant appealed against the grievance outcome. In this she provided some more detail about the other colleagues she said expressed similar concerns about Mr Nikolov, specifically in relation to him not being honest when discussing promotions and career progression. In her appeal she also stated she could not return to work with Mr Nikolov as her manager.

[42]On 20 May 2019 the claimant met with Mr Gibbins. At that point she was not fit to return to work. The claimant remained signed off work and was seen by Occupational Health again in June 2019. The report dated 12 June 2019 indicates she was still not fit to work but her health was expected to improve in time and with treatment.

[43]In June 2019 the claimant’s line management changed and Linda Hall took over this role. Mr Gibbins informed the claimant of this on 19 June 2019.

[44]In respect of the appeal process, the claimant’s complaints that we must determine again relate to the procedure and timescales. Our findings of fact are limited to those issues. They are as follows:44.1 The grievance procedure states that a meeting should be arranged within 20 working days. An update should be provided within 10 working days. There are no further express timescales provided for conclusion of the appeal.

44.2 James Alexander was appointed as the appeal manager.

44.3 The meeting was held on 20 June 2019. This was within 26 working days, rather than 20 working days.

44.4 Following the meeting Mr Alexander met with Ms Hall and Mr Nikolov.

44.5 On 16 July 2019 Mr Alexander provided an update to the claimant and explained there were delays due to availability. He sent the outcome to the claimant on 18 July 2019.

44.6 In witness evidence Mr Alexander explained there had been some delays due to having pre-booked holiday after he was first appointed. We accepted his evidence and found no evidence that any delay was unnecessary.

[45]As part of her case, the claimant has stated that during this meeting she made statements that were qualifying disclosures or protected acts. Our findings of fact that relate to this issue are as follows:45.1 Most of the discussion again related to the claimant’s own grievances about how Mr Nikolov has treated her. The claimant does mention other colleagues having similar difficulties with Mr Nikolov. These are provided as examples of how she alleges he has behaved.

45.2 When asked what she sought as a resolution the claimant focused on an outcome for herself, such as an apology. However, she does state she is worried about colleagues who have been interviewed as part of the process.

[46]At the end of this meeting Mr Alexander acknowledged that the claimant’s relationship with Mr Nikolov had broken down and offered to discuss what arrangements could be made. The claimant confirmed that she had already spoken with Mr Gibbens and knew Ms Hall would be her interim line manager.

[47]Mr Alexander wrote to the claimant with the outcome of the appeal on 18 July 2019. He upheld Ms Hall’s findings following the original grievance. The claimant’s return to work

[48]In late July the claimant received notification from the respondent that she may be able to apply for benefits under the Barclays Income Protection Scheme (“BIPS”). The claimant decided not to apply for this as the maximum she would receive would be 65% of her pay. At the time she felt she could not afford this due to her financial commitments.

[49]Ms Hall had formally taken over as the claimant’s interim line manager and she met with the claimant on 29 July 2019. At this meeting the claimant’s return to work was discussed. The discussion was recorded in a letter from Ms Hall dated 5 August 2019. In this Ms Hall noted the following:49.1 The claimant intended to return to work on 1 October 2019. This date was selected because the claimant’s entitlement to sick pay would expire on 9 September 2019. She had annual leave accrued which she intended to take and then return to work after that.

49.2 The claimant did not want to work in Ms Hall’s team as she was concerned about seeing Mr Nikolv. Ms Hall said she would put the claimant in touch with Leanne Newton, an HR Business Partner, about finding a different role.

49.3 Ms Hall would keep in touch to discuss the claimant’s return to work and make a plan.

[50]The claimant was reviewed again by Occupational Health on 31 July 2019. They advised the claimant was not fit to work at that time but noted her intention to return on 1 October 2019. Occupational Health set out some recommendations for the claimant’s return to work including a phased return and adjustments to her performance and attendance targets.

[51]Ms Hall put the claimant in contact with Leanne Newton, HR Business Partner. During August 2019 the claimant discussed with Ms Newton her return to work and the possibility of securing an alternative role. This was an informal process and alternative roles were discussed because the claimant did not want to return to work in Ms Hall’s team. Mr Alexander had noted the breakdown in the claimant’s working relationship with Mr Nikolov and the claimant’s preference to work in a different team. However, there had been no express recommendation that an alternative role was found as an outcome of either the grievance or appeal. Neither had Occupational Health made any such recommendation.

[52]In August 2019 Karin Forbes took over from Ms Newton and from that point liaised with the claimant about her return to work and attempts to find an alternative role. We heard from Ms Forbes about the steps that she took to assist the claimant looking for another role and we also saw email correspondence about this between the claimant and Ms Forbes. Ms Forbes discussed a number of roles with the claimant. The contemporaneous email evidence shows that the claimant was actively engaged in this process and that she had clear preferences about the types of role she would consider. The claimant applied for a couple of roles unsuccessfully. She also rejected some possibilities as they did not suit her preferences.

[53]We could see from this evidence that Ms Forbes was supportive to the claimant as she tried to find an alternative position with the respondent. We accepted Ms Forbes’ evidence that this was an informal process and it was not something she would usually do for an employee in the claimant’s position. The claimant was not subject to any formal redeployment process, which would usually occur in a redundancy situation. The claimant had a substantive role which she could return and here was no medical advice that recommended redeployment as a reasonable adjustment. Neither did the medical advice suggest that there was anything about the nature of the role the claimant had been carrying that was difficult or problematic for the claimant. On the contrary, before the events in early 2019 the claimant had been an outstanding performer in her role. The claimant’s difficulties related to personal relationships, specifically with Mr Nikolov, not the role or work.

[54]On 24 September 2019 the claimant had a telephone conversation with Ms Forbes. This is one of the few events where there was a significant dispute about what happened. Ms Forbes said that in this conversation the claimant had asked her about the possibility of leaving the respondent’s employment and she would like a settlement agreement. The claimant disputes that she said this. The exact contents of this conversation do not form part of the claims that we need to determine, but provide some context. We have considered carefully the extent to which we need to make any findings of what occurred and have concluded it is not necessary for us to decide exactly what was said. The conversation took place almost four years ago and it is unlikely that either party has a completely accurate recollection. Having looked at the contemporaneous documents we have concluded it is likely that there was some discussion about the possibility of the claimant’s employment ending if a resolution could not be found. The claimant was clearly worried about the situation and had been considering alternatives. This is reflected in the letter from 5 August 2019 from Linda Hall, where she reports the claimant saying that if there was no suitable other role she would “like to have a conversation around what that would mean re employment at Barclays”. It is understandable for the claimant to be considering what other options there may be and that she would want to discuss this. That is not necessarily the same as saying that she wanted a settlement agreement.

[55]Ms Hall had also been looking at options for the claimant’s return to work. She contacted Gill Arthur, who reported to her directly. On 27 September 2019 Ms Hall asked Ms Arthur if she had any work in her team the claimant could help with on her return while the claimant continued to look for a role elsewhere. In this email Ms Hall specifically states it needs to be something “not time critical and quite process related, repetitive type tasks. She would be on a phased return to work”.

[56]The claimant did not find an alternative role during September 2019. She was due to return to work at the beginning of October 2019. The respondent prepared a case report in preparation for her return. This included the following points:56.1 It was acknowledged that the claimant did not want to work on the same floor as Mr Nikolov.

56.2 3 other roles had been considered, but the claimant had various reasons why she could not do these.

56.3 The possible work with Ms Arthur was noted in the report.

[57]This report was sent to the claimant. On 30 September 2019 the claimant sent emails with her comments to both Ms Hall and Ms Hall’s PA. She provided her own more detailed account about why she did not consider the possible alternative roles suitable. She also explained why she could not work on the same floor as Mr Nikolov.

[58]The claimant returned to work on 2 October 2019. The claimant had not been reviewed by Occupational Health again before she returned to work. In light of what subsequently happened, we had some concerns about whether the claimant was actually fit to return to work at that point. There were frequent references in the documentary evidence that indicated the claimant’s decision to return was largely motivated by financial concerns as she would not receive any further sick pay. We considered the other medical evidence from the time about the claimant’s health. This included a letter from the claimant’s consultant psychiatrist dated 26 September 2029 and her GP notes. These had not been seen by the respondent at the time. These documents show the claimant was still suffering symptoms and receiving treatment. However, there is also nothing in those documents that clearly indicate the claimant was not actually fit to return to work at the time. In addition, we have found that the claimant was actively engaged in looking at alternative roles and discussing her return to work arrangements. This is consistent with the claimant considering herself to be well enough to start the return to work process in October 2019.

[59]Following her return to work the claimant started to work for Ms Arthur. The claimant was on a phased return to work which was due to last until the end of November 2019. She was to gradually increase the hours she worked each week. The position itself was not a new substantive role. In effect the respondent had created a bespoke role on a temporary basis for the claimant to facilitate her return to work. One of the motivating factors in doing this was to accommodate the claimant’s clearly stated preference that she did not work with Mr Nikolov. Had the claimant returned to the role she undertook before her sick leave she would have been in the same team as Mr Nikolov. Therefore, Ms Hall had arranged for the claimant to work in Ms Arthur’s team and Ms Arthur had identified some specific work for the claimant to do during her phased return that she felt was suitable.

[60]The claimant attended a return to work meeting with Ms Hall on 2 October 2019. The note from the time shows that the work the claimant would be doing for Ms Arthur was discussed along with the claimant’s ongoing attempt to find a new role.

[61]The claimant was reviewed by Occupational Health on 9 October 2019. They reported that the claimant was fit to return to work. They noted what adjustments were in place and reiterated what had previously been recommend which included the following:61.1 a phased return over 6 weeks, gradually increasing the number of working hours;

61.2 adjustments to performance and attendance targets over 12/15 weeks;

61.3 regular 1:1s; and

61.4 time off for medical appointments.

[62]With regards to the adjustments that were recommended, Occupational Health indicated that the purpose was to “facilitate a successful and sustained return” and the adjustments were “while the employee settles back into a routine”. The purpose of these adjustments was to assist the claimant’s transition back to work. The claimant’s absence had been work related in that it was related to her grievance against her manager, Mr Nikolov. However, before the incidents that triggered the grievance the claimant did not have any difficulties with the work itself. She had been a high performer in her role, having achieved the highest grading in her 2018 appraisal. There was no evidence from the time to suggest that the claimant’s ability to carry out her substantive role in the long term may be affected once she successfully managed the transition back into the workplace.

[63]Ms Arthur took over the claimant’s line management from then. Ms Hall had updated Ms Arthur on the return to work discussions. The first week the claimant undertook mandatory training. On 11 October 2019 the claimant spoke by telephone with Ms Arthur about the work she would be doing. Ms Arthur followed up by email setting out the projects the claimant would be working on. This was acknowledged by the claimant. She had one comment which related to home working and assistive technology. In the documentary evidence from the time we could see that the claimant did not raise any significant concerns about the work itself, either the amount of work or type of work.

[64]In terms of the workload, Ms Arthur assigned the claimant three discrete pieces of work. We heard from Ms Arthur that the work she allocated the claimant was of a type that any Vice President within the team could have done but the amount of work was a lot lower. She also explained that it was not particularly difficult or urgent. We found no reason to doubt this evidence. We have seen a number of lengthy emails between the claimant and Ms Arthur from October 2019 discussing this work. They were in regular email and telephone contact during this time. In the email correspondence we saw the claimant was fully engaged in discussing the details of the work and what was required, but she did not raise any particular concerns about the nature of the work or the level of workload assigned to her.

[65]We accepted Ms Arthur’s evidence that the workload assigned to the claimant on her return to work was substantially less than would usually be expected of a vice-president within her team. The work was tailored to the claimant’s needs and the fact she was on a phased return so on reduced hours.

[66]On her return to work the claimant worked from home rather than in the office. She started to suffer from panic attacks and on a couple of occasions she called an ambulance. On one occasion she had attended a team meeting where Mr Nikolov was also present. The claimant had attended this remotely. Mr Nikolov’s presence had triggered a panic attack. At the end of October the claimant had a discussion with Ms Arthur and informed her of the panic attacks. She also explained about symptoms she was still experiencing such as tiredness, migraines and difficulty concentrating. Ms Arthur agreed the claimant’s phased return should be extended to 6 weeks, rather than 5 weeks.

[67]The claimant was reviewed again by Occupational Health on 6 November 2019. Occupational Health also advised that the claimant had been struggling with the increase in her hours and had been having panic attacks and experiencing other symptoms. However, Occupational Health also reported at this time the claimant was fit to work. They recommended that the phased return was extended, along with adjustments to the claimant’s performance and attendance targets and that she should continue to be allowed to work from home.

[68]By this time Ms Arthur started to have concerns about the claimant’s fitness to return to work. This was evidenced by internal notes of discussions Ms Arthur had with HR on 1 November 2019. She had further discussions with HR after the receipt of the November 2019 Occupational Health report. The internal correspondence from the time notes that the medical evidence indicated that the claimant was fit to work but Ms Arthur felt this was not consistent with her experience, based on her own discussions with the claimant. In an email to Karin Forbes on 13 November 2019 Ms Arthur suggests that the claimant’s wellbeing was deteriorating.

[69]On 14 November 2019 Ms Arthur informed the claimant that the respondent was happy to extend her phased return, as recommended by Occupational Health. Ms Arthur initially advised the claimant that for this extended phased return she would only be paid for the hours she worked. The claimant queried this and reiterated her concerns about the impact on her if her pay was reduced at all. Ms Arthur raised this issue with Ms Forbes. With Ms Hall’s agreement it was decided that the extended phased return would be on full pay. On 20 November 2019 Ms Arthur wrote to the claimant and confirmed she was on a further 4 weeks’ phased return on full pay. Ms Arthur also confirmed the adjustments that had been implemented, including a “significantly reduced level of workload” and that she was working from home but due to transition back into the office.

[70]The claimant was reviewed again by Occupational Health on 20 November 2019. The report was similar, stating that the claimant was fit to work with the same adjustments recommended. This time Occupational Health also noted there were concerns about the claimant’s “overall fitness for work” and that the claimant felt she had to return to work for financial reasons.

[71]During November 2019 and early December 2019 there continued to be regular email correspondence between the claimant and Ms Arthur and Ms Forbes about her return to work. The claimant was engaged in the process, asking detailed questions about a range of matters including what would happen in January once the phased return ended, attempts to find alternative roles, and general concerns about being in the same wider team as Mr Nikolov. Ms Arthur responded to the claimant’s queries, and the claimant often then replied with further comments of her own.

[72]We are not going to make detailed findings on everything discussed at this time by the claimant and Ms Arthur. The following points were raised which are relevant to the claimant’s specific claims relating to this period of time:72.1 In late November the claimant confirmed she had not fully recovered but reiterated she felt she had no choice but to return to work for financial reasons.

72.2 Ms Arthur advised the claimant that if at the end of the phased return the claimant was not fit to return there would be no further sick pay as that was Barclays’ policy. The claimant queried the Barclays policy of only paying 26 weeks’ sick pay and asked that her sick leave was extended on full pay.

72.3 In late November 2019 Ms Arthur reiterated that the workload was significantly reduced. The claimant acknowledged the work was appropriate while she adjusted to being back at work.

72.4 On a number of occasions Ms Arthur confirmed that while on a phased return to work the claimant’s performance was not being compared with her peers. When the claimant returned to work fulltime she would be measured against other vice-presidents. However, Ms Arthur reiterated more than once that they would continue to take into account recommendations made by Occupational Health.

[73]One issue under discussion was the claimant’s return to the office. The claimant made it clear she wanted to make sure that she would not see Mr Nikolov. The claimant at some point asked that when she returned to the office could she be based in a different building. This was not agreed by the respondent. We accepted the evidence of Ms Arthur that it would not be practical for the claimant to work in a different building completely to the rest of the team. However, arrangements started to be made so that the claimant would have a desk on a different floor to minimize her interactions with Mr Nikolov. In fact, the claimant never did return to work in the office. In November and December 2019 there were just discussions about the arrangements that were being made for when the claimant was ready to return to the office rather than work from home.

[74]On 11 December 2019 the claimant raised a second formal grievance. This was by way of a lengthy letter that ran to 36 pages including appendices. The letter was addressed to the respondent’s Head of HR – BX Chief Operating Office and to the respondent’s Head of Compliance Regulatory Remediation, Investigations and Whistleblowing. The letter was formal and included lengthy references to caselaw relating to constructive dismissal, disability discrimination and the duty to make reasonable adjustments, health and safety, and whistleblowing. The grievance was not sent to Ms Arthur. Ms Arthur’s evidence was that she did not become aware of the grievance until 13 February 2020 when she was interviewed. We accepted this was the case. It was not challenged by the claimant and there was no documentary evidence, such as emails from the time, that indicated the claimant told Ms Arthur about it before then. The notes of the interview indicate that the meeting took place at 11.30am

[75]As the grievance was lengthy and we will not set out in detail all of its contents. Some of the complaints are similar to those which she has now included within this claim, or are relevant to the issues we need to determine. The relevant specific complaints the claimant raised were as follows:75.1 She wanted acknowledgment that she was disabled for the purposes of the Equality Act 2010, which had not been confirmed in any of the Occupational Health reports to date. She was concerned about the respondent relying on these reports and she asked that she was reassessed by an Occupational Health doctor.

75.2 She complained that the only adjustments the respondent had put in place were short term until the end of her phased return. She said that there were long term adjustments that would be needed.

75.3 She wanted to be redeployed. The claimant noted that she had been advised to apply for other roles but she wanted to be redeployed without the need to apply or go through a competitive process or, if a role could not be found, she wanted a role created for her.

75.4 She wanted more done to ensure she did not have to see Mr Nikolov and she complained that her request to relocate to a different building had been refused.

75.5 The claimant also complained that she had been informed that from January 2020 her performance would be assessed by comparison with her peers, being other vice-presidents.

[76]In the grievance the claimant also included a section she described as ‘whistleblowing’. Again, this is quite lengthy. To summarise, the claimant stated:76.1 She knew of two other vice presidents who had raised grievances about bullying, harassment and whistleblowing and that there had been impacts on their ability to work as a result.

76.2 She stated that she believed that the respondent was allowing “a climate of bullying harassment and discrimination to foster at Canary Wharf”.

76.3 She said that the respondent endangered the welfare of employees and was not providing a safe system of work.

[77]The claimant was due to be reviewed again by Occupational Health on 18 December 2019. This was cancelled and initially rescheduled to 14 January 2020, because the nurse who was due to carry out the review was unavailable. The appointment was rearranged for 19 December 2019. The claimant sent a lengthy update about the review to Ms Arthur the same day. In this email the claimant indicates that she spoke at some length about the symptoms she was experiencing at that time.

[78]The claimant has now suggested that this report was sanctioned by the respondent in order to ‘overrule’ her return to work. It is unclear the basis for this suggestion. The review had previously been scheduled for the day before. There is no evidence that the claimant expressed any concerns about the rearranged appointment at the time. On the contrary, she reported back to Ms Arthur immediately following the appointment and was open with her about what had been discussed.

[79]The report was dated 19 December 2019 but it was not received by Ms Arthur until 27 December 2019. The claimant was not working at that time as after her phased return she had immediately started another period of annual leave. She was due to return on 6 January 2020.

[80]This time Occupational Health reported that the claimant was medically unfit for work. The claimant knew this was the outcome because she had seen the report before it had been sent to Barclays. She did not make contact directly with Ms Arthur or anyone else to discuss the report at the time. Occupational Health had also noted that the claimant had agreed to attend a face-to-face independent medical assessment. This is something the claimant had already stated she wanted to happen in her grievance. The claimant’s absence from January 2020

[81]On 3 January 2020 Ms Arthur emailed the claimant about the report. She asked the claimant to remain off work and advised that she would be recorded as being on sick leave and paid accordingly. The claimant responded promptly. She asked for clarification on what her pay would be. She did not challenge the Occupational Health advice about her fitness to work or suggest that she was in fact fit to work. The claimant also emailed Ms Hall and asked for clarification about pay.

[82]Ms Arthur continued to email the claimant regularly during early January. Initially she advised the claimant that she would not be receiving further sick pay, but she advised the claimant that she may be eligible for the income protection support. The claimant asked for information about applying for the income protection. On 16 January 2020 Ms Arthur wrote to the claimant to inform her that she was extending her sick pay on a goodwill basis. The claimant would receive full pay from 6 January 2020 until 14 February 2020. This would allow time for the claimant to apply for income protection under BIPS. If she applied for BIPS her pay would continue to be paid at 65% while she waited for their decision. The claimant confirmed on 19 January 2020 she had applied for BIPS.

[83]The claimant was reviewed by the Occupational Health independent assessor on 13 January 2020. The report was dated 22 January 2020 but not sent to the respondent until mid-February 2020. The assessor confirmed the claimant was temporarily unfit to work. They suggested that it may be possible for her to return to work in 4-6 weeks, depending on treatment.

[84]The claimant remained off work. On 5 February 2020 the claimant received a letter from the respondent’s HR advising that her pay would reduce to nil from 17 February 2020. This did not happen and the claimant continued to receive 65% of pay from 14 February 2020 while she waited for the outcome of her BIPS application. 65% of pay is what the claimant would receive if her BIPS application was successful.

[85]On 13 February 2020 Ms Arthur contacted the claimant about her pay review for the year. She advised her that it was available by email sent at 9.41am. The claimant had completed her end of year self-assessment on 23 October 2019. Ms Arthur had then assessed the claimant as being ‘strong-strong’. We accepted Ms Arthur’s evidence on the rationale for this. This rating was based on the work the claimant had undertaken up until March 2019 before her absence and the work she had undertaken since her return at the beginning of October 2019.

[86]In February 2020 the claimant received an incentive award of £14,900. This was lower than the bonus she received the previous year of £20,000. The guidance on incentive awards for employees on long term sickness indicated that it should be based on performance in 2019 and individual circumstances should be taken into account. In the claimant’s case her award was based on the ‘strong-strong’ assessment. It was then reduced but the reduction did not wholly reflect the period of absence. During 2019 the claimant had been at work for 23 weeks but her bonus was pro-rated as if she had been at work for 40 weeks. We accepted Ms Arthur’s evidence that the bonus reflected the claimant’s slightly lower rating for 2019 and it was still higher than other vice presidents.

[87]The claimant also did not receive a salary increase. On this we reiterate our earlier finding that there was no contractual right to receive a pay rise. We also accepted Ms Arthur’s evidence that the claimant’s salary was already relatively high compared to her peers and that others also did not receive a pay rise that year. She also explained that the claimant’s absence was not a factor in this decision, it was wholly based on looking at the market data which showed her pay was already at the higher end. The claimant did not provide any evidence to the contrary. We accept that as a matter of fact the claimant’s sickness absence did not form any part of the reason why she did not receive an increase in her base salary. Events for the remainder of 2020

[88]The claimant remained signed off work for the rest of 2020. During this time several different processes continued. These were:88.1 the second and third grievance procedures and appeals;

88.2 reviews by Occupational Health of the claimant’s fitness to work; and

88.3 the claimant’s BIPS applications and appeals.

[89]These processes ran concurrently but were separate. Alongside these processes the respondent continued to liaise with the claimant about her absence more generally. For clarity we have separated out our findings about the grievance procedures, the BIPS application and general management of the claimant’s absence. The second grievance procedure

[90]The claimant’s second grievance progressed while she was on sick leave. Anne Jackson, Employee Relations Case Manager, managed the process and contacted the claimant to ask if she wanted it to be progressed or wait until her return. The claimant asked for it to be progressed. However, she also suggested that Mr Crook could progress the investigation without a faceto-face meeting with her.

[91]Mr Crook started his investigation. In early February 2020 he met with individuals who had been involved with the claimant’s return to work including Ms Arthur, Ms Hall and Ms Forbes. Mr Crook also corresponded with the claimant to obtain some additional information, such as consent to see the most recent Occupational Health report. On 5 March 2020 the claimant sent Mr Crook a letter enclosing documentary evidence she wanted him to have related to her grievance.

[92]Mr Crook continued to correspond with the claimant about her grievance. On 6 March 2020 he explained how much time he had been spending on reviewing documents and what else he needed to do. He wrote to the claimant on 12 March 2020 setting out his summary of what he understood her grievances to be. He asked for the claimant to provide feedback.

[93]On 13 March 2020 the claimant sent a letter to Mr Crook. She complained about the time it was taking for her grievance to be investigated, and that it had exceeded the timescale in the respondent’s grievance policy. She also alleged that this was deliberate. Otherwise, the letter mainly reiterated the points she had made previously in her grievance.

[94]On 17 March 2020 Mr Crook explained to the claimant that more complicated cases could take longer than the timescale in the policy. On 3 April 2020 he informed the claimant that the outcome letter was being reviewed before being sent to her. The claimant continued to chase for the outcome during April 2020 and she complained again about the length of time the process was taking.

[95]Mr Crook sent the outcome to the claimant on 15 May 2020. He did not uphold her grievance. The reasons for this were set out in detail. Mr Crook did make some recommendations about what should happen when the claimant returned to work. He also explained why it had taken the time it had to provide the outcome. This included the following:95.1 As the claimant had initially sent her grievance to the Raising Concerns team they had processed it first to decide who was best placed to address it. This took some time and there was then a further delay due to the Christmas break.

95.2 Mr Crook had been appointed on 15 January 2020. He had worked on it as best he could but had to balance other work commitments.

95.3 The 20 days in the grievance policy was guidance. The claimant’s grievance had been more complex as it was very detailed, including 107 points and she had provided over 100 emails to review.

95.4 There had been additional challenges due to the situation with COVID-19.

[96]We did not hear any evidence from Mr Crook. However, we saw nothing that to suggest this explanation was not genuine. As we have noted above, the claimant’s grievance was lengthy. We were provided with interview notes from early February 2020, when Mr Crook interviewed Ms Forbes, Ms Hall and Ms Arthur which show that he was progressing the investigation at that time. As a matter of fact, in the middle of March 2020 the country did enter lockdown.

[97]On 29 May 2020 the claimant appealed against the outcome of the second grievance. The appeal letter was lengthy, running to 29 pages. Again, this was set out in a legalistic manner. She repeatedly asserts that she had been making qualifying disclosures in her grievance and she includes again caselaw she believes is relevant. Otherwise, the grievance is primarily challenging how Mr Crook reached his conclusions.

[98]Shane Hawkins was appointed to hear the appeal in mid-June 2020. Anne Jackson assisted him with setting out the scope of the appeal. She provided Mr Hawkins with documents in the beginning of July 2020. Mr Hawkins explained that it took a while to review these, due to the volume of documents, which we accepted.

[99]Mr Hawkins corresponded with the claimant about her appeal. On 24 July 2020 he wrote to her with a list of questions he had. He advised her that he would then be out of the office until 10 August 2020.

[100]On 20 August 2020 the claimant sent Mr Hawkins a letter with her responses to his questions. On many of the points the claimant just referred back to her original grievance or to her appeal. She did not provide any further clarification or answers to the questions that Mr Hawkins had asked.

[101]On 28 August 2020 the claimant wrote to Mr Hawkins seeking an update. He informed her on 1 September 2020 that he needed to have some discussions with other people who had been on leave. On 9 September 2020 Mr Hawkins provided an update to say he was still drafting the outcome. In this he said that he wanted to “ensure a detailed and considered response, and that of course takes time too”. The claimant acknowledged this on 17 September 2020 and asked for a specific timeframe. On 21 September 2020 Mr Hawkins informed the claimant that he had some further points to clarify with others and he could not provide a specific timeframe.

[102]The claimant chased again on 7 October 2020. In this she noted it had been 132 days since she lodged her appeal. She also explained the impact the delay was having on her. Mr Hawkins responded on 9 October 2020 and informed the claimant he was finalising the outcome letter. He also partially explained some of the delay, referring to his other commitments and those of others he was dealing with to finalise the outcome.

[103]On 12 October 2020 the claimant wrote to Gavin Haynes, the Global Head of HR, to complain about the delay in the outcome of the appeal. She copied Mr Hawkins into this email. She stated she was escalating the matter to get a definite date to receive the outcome. On 16 October 2020 Mr Haynes advised the claimant that the delay was partly due to the complexity of the appeal. He advised her the outcome would be sent to her within 2-3 weeks.

[104]On 27 October 2020 Anne Jackson wrote to the claimant to say that the outcome was almost ready. She asked if the claimant wished to attend an independent medical assessment to see if she was well enough to receive the letter first. The claimant responded to say this was not required and she would prefer to receive the outcome by email during normal working hours.

[105]The appeal outcome letter dated 29 October 2020 was sent to the claimant by email. Mr Hawkins did not uphold any of the claimant’s points of appeal. He set out his reasons in detail in an 11 page letter.

[106]The claimant’s claims that we need to determine are not based on the substance of the appeal or the outcome, just the process and time taken. Therefore, we do not making any further findings on the outcome. We just note that there were delays in the appeal process but we accepted Mr Hawkins explanations for those delays. The appeal was lengthy and complex and Mr Hawkins had to balance progressing the appeal with his other duties. The claimant’s BIPS application and the claimant’s pay

[107]On 6 March 2020 UNUM sent the respondent the outcome of the claimant’s BIPS claim. This was rejected as they would not include the previous absence from March to September 2019. They would only consider her absence starting from 6 January 2020, and would not link this to the earlier period of absence. This meant that the claimant was not eligible for payment under BIPS at the time.

[108]On 29 May 2020 the claimant sent to the respondent an appeal against UNUM’s decision not to grant her claim under BIPS. The respondent forwarded this to UNUM. UNUM responded to the respondent on 29 June 2020. They did not uphold the claimant’s complaints. The respondent informed the claimant of the decision on 15 July 2020.

[109]UNUM confirmed that they were still reviewing the claimant’s absence starting on 6 January 2020. During late July and August 2020 the claimant chased up the second UNUM application with the respondent on several occasions and raised some concerns about the process.

[110]The respondent continued to pay the claimant 65% of her normal pay while this process was ongoing. On 29 July 2020 Ms Arthur confirmed that this would be reviewed on a month by month basis while waiting for UNUM’s decision. On 25 August 2020 Ms Arthur informed the claimant that if the second UNUM claim was declined then the respondent would cease paying her, though there would be a notice period first.

[111]On 9 September 2020 the respondent informed the claimant that UNUM had rejected her claim again. This was because they concluded the claimant’s condition was due to work related stressors rather than a “significant psychological condition”.

[112]Ms Arthur contacted the claimant shortly after this and told her that she would continue to receive 65% of her pay during September and October 2020 as a minimum.

[113]On 28 September 2020 Ms Arthur advised the claimant that she would be paid 65% until the end of December 2020, after which this payment would cease. Management of the claimant’s absence and pay

[114]The claimant was reviewed by Occupational Health again on 4 March 2020. She remained unfit to work. Occupational Health noted that there were “perceived workplace concerns which could present a non-medical barrier to a return to work” and referred to the ongoing grievance process.

[115]The claimant continued to be reviewed on a regular basis by Occupational Health. On 26 May 2020 Occupational Health confirmed that the claimant was unfit to work. By this point they advised that she would remain absent for the foreseeable future.

[116]The claimant remained in contact with Ms Arthur. For example, on 8 June 2020 the claimant informed Ms Arthur about her appeal to UNUM and noted that she was due to be reviewed by Occupational Health in July. She did not suggest to Ms Arthur she was fit to return to work.

[117]On 26 August 2020 Occupational Health advised the claimant remained unfit to work and that was likely to remain the case for the foreseeable future. The position did not change in October 2020. She was reviewed again on 30 December 2020. The claimant remained unfit to return to work, but in this report Occupational Health noted that the claimant said shewas keen to return when her health had improved.

[118]As noted above, during this time the respondent had continued to pay the claimant 65% of her normal pay while UNUM were processing her application under BIPS. On 19 June 2020 the respondent’s HR department wrote to the claimant to advise that her entitlement to Statutory Sick Pay was due to come to an end. However, the respondent continued to pay the claimant at the same rate. The respondent stopped paying the claimant at the end of December 2020. Third grievance

[119]On 17 September 2020 the claimant had written to Jacinta Stewart, the respondent’s Head of HR, about the outcome of her BIPS application. In this the claimant suggested that Gill Arthur had essentially made her stay off work for 2020 and that she viewed this as being medically suspended.

[120]On 29 September 2020 Sara Rowlands, HR Business Partner, responded to this letter. She set out the respondent’s position that Occupational Health advised the claimant was not fit to work and that was why she was asked to remain off work in January 2020. Ms Rowlands confirmed that the advice from Occupational Health had continued to be that she was unfit to work. This reflects our own findings based on the evidence that we have seen that the claimant remained unfit to work and at no point before 17 September 2020 did the claimant suggest otherwise.

[121]On 8 October 2020 the claimant wrote to Ms Rowlands. In this she asked that her complaint about what occurred in December 2019 and January 2020 was treated as a grievance. She said that the referral to Occupational Health in 2019 had been made without her consent and reiterated her allegation she had been medically suspended. She asked that for backdated pay in full.

[122]Ms Rowlands acknowledge the grievance on 16 October 2020. The claimant wrote to Ms Rowlands on 26 October 2020 asking for confirmation that the respondent would continue to pay her at 65% of her pay until the grievance process was completed. On 6 November 2020 Ms Rowlands confirmed that payment would cease in December 2020, but if the outcome of the grievance was that this should not have happened any money due would be backdated and paid.

[123]Mike Morrison, a Director with the respondent, was appointed to hear the claimant’s third grievance. The claimant was informed of this. The claimant informed the respondent she did not want to attend a meeting but wanted her grievance dealt with by way of correspondence.

[124]As with the earlier grievances, scoping documents were prepared by the respondent’s HR to assist Mr Morrison with his investigation. Mr Morrison communicated with the claimant by email and she provided comments in writing. On 22 December 2020 Mr Morrison provided an update to say he had reviewed documents and met with various people but there were still some areas he needed to review.

[125]Mr Morrison sent the claimant the outcome of the grievance in a letter dated 7 January 2021. He did not uphold the grievance. His findings about events of December 2019, leading to the claimant being signed off work again from January 2020, broadly reflect the findings we have already made about those events. Mr Morrison then set out in details the financial arrangements that the respondent had made in respect of the claimant during 2020 by continuing to pay her in full up until 14 February 2020 and then at 65% until December 2020.

[126]Mr Morrison concluded by stating that he had “concluded that you have been treated more favourably than other colleague, and whilst I understand the reason for these collective decision, I do not conclude that it would be fair or reasonably to consider recommending any further extensions”. We accept that this is a reasonable conclusion in the circumstances. The claimant had no contractual entitlement to any pay beyond Statutory Sick Pay from January 2020 onwards but the respondent had exercised its discretion to pay her in any event.

[127]The respondent stopped paying the claimant at the rate of 65% of her pay at the end of December 2020. In November 2020 the claimant had arranged for the annual leave she had accrued to be paid to her in January 2021. This was arranged and paid to the claimant as requested.

[128]On 4 February 2021 the claimant submitted her resignation. This was sent to Ms Arthur and Ms Rowlands. In this she referred to the delays in the grievance procedures and again said she had been put on medical suspension and had been prevented from returning to work.

The Law

[129]The Claims pursued by the Claimant are:129.1 discrimination arising from a disability (section 15 Equality Act 2010);

129.2 failure to make reasonable adjustments (section 20-21 Equality Act 2010);

129.3 harassment on the grounds of disability (section 27 Equality Act 2010);

129.4 victimisation (section 27 Equality Act 2010);

129.5 detriment on the grounds of having made a protected disclosure (section 47B Employment Rights Act 1996);

129.6 unfair dismissal – ordinary unfair dismissal (section 98 Employment Rights Act 1996);

129.7 automatically unfair dismissal due to having made a protected disclosure (section Employment Rights Act 1996); and

129.8 automatically unfair dismissal due to having asserted a statutory right (section Employment Rights Act 1996).

[130]Section 6 Equality Act 2010 provides: (1) A person (P) has a disability if – (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

[131]The “Guidance on matters to be taken into account in determining questions relating to the definition of disability” states this at A3 in relation to the meaning of an impairment: “The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects.”

[132]A “substantial” adverse effect is one that is “more than minor or trivial”. In determining whether an effect on normal day to day activities is substantial, a Tribunal should have regard to the time taken to carry out the activity (Guidance [B2]) and the way in which the activity is carried out (Guidance [B3]).

[133]Paragraph 5(1) of Schedule 1 to the Equality Act 2010 states:(1) 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 treat or correct it, and (b) but for that, it would be likely to have that effect.

(2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.

[134]“Normal day-to-day activities” are things that people do on a regular or daily basis (Guidance [D2]), such as shopping, reading, writing, having a conversation, using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport and taking part in social activities. They do not include activities which are only normal for a particular person or a small group of people (Guidance [D4]). They do not include highly specialised work activities which are not normal day-to-day activities for most people (Guidance [D8]).

[135]Schedule 1 to the Equality Act 2010 sets out further provisions relating to the determination of disability. The effect of an impairment will be “long term” if:(a) it has lasted for at least 12 months;

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

[136]The question of whether an impairment is “likely” (in the sense of “it could well happen”) to last for at least 12 months is decided based only on evidence that was available and on the circumstances at the relevant time. The Tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months; see (McDougall v Richmond Adult Community College

[2008] ICR 431

). Protected disclosures

[137]Section 43A of the ERA states: “In this Act a "protected disclosure" means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”

[138]Section 43B of the ERA states: (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— […] (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, […] (d) that the health or safety of any individual has been, is being or is likely to be endangered, […] (e) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

[139]To succeed with any whistleblowing claim a claimant must first show they have made a qualifying disclosure as defined above. This comprises the following elements:139.1 there must be a disclosure of information;

139.2 the individual genuinely believed the disclosure was in the public interest; and

139.3 in the reasonable belief of the individual that information showed one or more of the matters set out in section 43B.

[140]The Court of Appeal provided further guidance in Kilraine v London Borough of Wandsworth

[2018] ICR 1850

. It said: “30 the concept of ‘information’ as used in section 43B(1) is capable of covering statements which might also be characterized as allegations. [….] Section 43B(1) should not be glossed to introduce into it a rigid dichotomy between “information” on the one hand and “allegations” on the other […] 31. On the other hand, although sometimes a statement which can be characterised as an allegation will also constitute "information" and amount to a qualifying disclosure within section 43B(1), not every statement involving an allegation will do so. […] 35 […] In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1) [...] 36 […] the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters […. ] this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.”

[141]The Court of Appeal considered the ‘public interest’ test in Chesterton Global Ltd v Nurmohamed

[2018] ICR 731

. The Court of Appeal identified the following principles: “27 […] The tribunal thus has to ask(a) whether the worker believed, at the time that he was making it, that the disclosure was in the public interest and

(b) whether, if so, that belief was reasonable 28 […] that exercise requires the tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest […] All that matters is that the tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker [….] 29 […] the necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. […] 30 […] while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it […] 31 […] the essential distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest […].”

[142]In relation to the public interest, the Court of Appeal considered the situation where the breach was of the worker’s own contract. It said: “37. […] In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under section 43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker. […] The question is one to be answered by the tribunal on a consideration of all the circumstances of the particular case, […] the number of employees whose interests the matter disclosed affects may be relevant, but that is subject to the strong note of caution which I have sounded in the previous paragraph.”

[143]Section 43(c) sets out that if a qualifying disclosure is made to an individual’s employer it will be a protected disclosure. Discrimination arising from a disability (section 15 Equality Act 2010)

[144]Section 15 of the Equality Act 2010 provides:(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

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

[145]In Pnaiser v NHS England

[2016] IRLR 170

, the EAT provided guidance as to the correct approach to a claim as follows:(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.

(b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a section 15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.

(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport

[1999] IRLR 572

. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises…

(d) The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B’s disability”. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of section 15 of the Act…the statutory purpose which appears from the wording of section 15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.

(e) For example, in Land Registry v Houghton

UKEAT/0149/14

a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The Tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.

(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.

(g) Miss Jeram argued that “a subjective approach infects the whole of section 15” by virtue of the requirement of knowledge in section 15(2) so that there must be, as she put it, ‘discriminatory motivation’ and the alleged discriminator must know that the ‘something’ that causes the treatment arises in consequence of disability. She relied on paragraphs 26 to 34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her subjection, and indeed paragraph 34 highlights the difference between the two stages – the ‘because of’ stage involving A’s explanation for the treatment (and conscious or unconscious reasons for it) and the ‘something arising in consequence’ stage involving consideration of whether (as a matter of fact rather than belief) the ‘something’ was a consequence of the disability.

(h) Moreover, the statutory language of section 15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of section 15 would be substantially restricted on Miss Jeram’s construction, and there would be little or no difference between a direct disability discrimination claim under section 13 and a discrimination arising from disability claim under section 15.

(i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a Tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant’s disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to ‘something’ that caused the unfavourable treatment. “

[146]The correct approach to a claim was summarised by the Court of Appeal in City of York Council v Grosset

[2018] IRLR 746

. “36. On its proper construction, section 15(1)(a) requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) "something"? and

(ii) did that "something" arise in consequence of B's disability. 37.The first issue involves an examination of A's state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A's attitude to the relevant "something" ... 38.The second issue is an objective matter, whether there is a causal link between B's disability and the relevant "something" ….”

[147]The meaning of ‘unfavourable treatment’ was considered by the Supreme Court in Trustees of Swansea University Pension and Assurance Scheme v Williams

[2019] ICR 230

(at para 27): ‘… in most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in section 15 and analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. While the passages in the Code of Practice to which she draws attention cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section.’ Failure to make reasonable adjustments (section 20-21 Equality Act 2010)

[148]Section 20 of the Equality Act 2010 provides:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty imposes the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage…

[149]Section 21 of the Equality Act 2010 provides that a failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments, and further that A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

[150]The EAT in Environment Agency v Rowan

[2008] ICR 218

held that an employment tribunal considering a breach of the duty to make reasonable adjustments (under the then-current DDA 1995), must identify:(a) the provision, criterion or practice applied by or on behalf of the employer; or

(b) the physical feature of premises occupied by the employer;

(d) the nature and extent of the substantial disadvantage suffered by the claimant. This guidance continues to apply to claims brought under s. 20 – 21 Equality Act 2010.

[151]The Court of Appeal in Ishola v Transport for London

[2020] ICR 1204

has given detailed guidance as to the meaning of the phrase “provision, criterion or practice”: “35. The words "provision, criterion or practice" are not terms of art, but are ordinary English words. I accept that they are broad and overlapping, and in light of the object of the legislation, not to be narrowly construed or unjustifiably limited in their application. I also bear in mind the statement in the Statutory Code of Practice that the phrase PCP should be construed widely. However, it is significant that Parliament chose to define claims based on reasonable adjustment and indirect discrimination by reference to these particular words, and did not use the words "act" or "decision" in addition or instead. As a matter of ordinary language, I find it difficult to see what the word "practice" adds to the words if all one-off decisions and acts necessarily qualify as PCPs…36. The function of the PCP in a reasonable adjustment context is to identify what it is about the employer's management of the employee or its operation that causes substantial disadvantage to the disabled employee. […..]. To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply. [….].

37. In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. […[ If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP.

38. [….] It seems to me that "practice" here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. [….].”

[152]In considering whether the application of a PCP places a disabled person at a substantial disadvantage: “one must simply ask whether the PCP puts the disabled person at a substantial disadvantage compared with a non-disabled person. The fact that they are treated equally and may both be subject to the same disadvantage when absent for the same period of time does not eliminate the disadvantage if the PCP bites harder on the disabled, or a category of them, than it does on the able bodied” Griffiths v Secretary of State for Work and Pensions

[2017] ICR 150

[153]In considering whether an employer has complied with the duty to make reasonable adjustments, the focus must be on the practical steps that can be taken to alleviate the substantial disadvantage suffered, rather than the process by which a decision is reached, or the information obtained in reaching that decision. See on this point Royal Bank of Scotland Plc v Ashton

[2011] ICR 632

, and in particular the quotation from Spence v Intype Libra Ltd at (reference to section 4A is to the predecessor Disability Discrimination Act 1995): “The nature of the reasonable steps envisaged in section 4A is that they will mitigate or prevent the disadvantages which a disabled person would otherwise suffer as a consequence of the application of some provision, criterion or practice … The duty is not an end in itself but is intended to shield the employee from the substantial disadvantage that would otherwise arise. The carrying out of an assessment or the obtaining of a medical report does not of itself mitigate or prevent or shield the employee from anything. It will make the employer better informed as to what steps, if any, will have that effect, but of itself it achieves nothing.”

[154]While it is not a breach of the duty to make reasonable adjustments to fail to undertake a consultation or assessment with the employee (Tarbuck v Sainsburys Supermarkets Ltd), it is best practice so to do. The provision of managerial support or an enhanced level of supervision may, in accordance with the Code of Practice, amount to reasonable adjustments (Watkins v HSBC Bank Plc

[2018] IRLR 1015

)

[155]The adjustment contended for need not remove entirely the disadvantage; the DDA says that the adjustment should 'prevent' the PCP having the effect of placing the disabled person at a substantial disadvantage. Leeds Teaching Hospital NHS Trust v Foster UK EAT /0552/10, [2011] EqLR 1075: when considering whether an adjustment is reasonable it is sufficient for a tribunal to find that there would be 'a prospect' of the adjustment removing the disadvantage— there does not have to be a 'good' or 'real' prospect of that occurring. Cumbria Probation Board v Collingwood

[2008] All ER (D) 04

(Sep) - 'it is not a requirement in a reasonable adjustment case that the claimant prove that the suggestion made will remove the substantial disadvantage'.

[156]The test of 'reasonableness', imports an objective standard and it is not necessarily met by an employer showing that he personally believed that the making of the adjustment would be too disruptive or costly. Lincolnshire Police v Weaver

[2008] All ER (D) 291

(Mar): it is proper to examine the question not only from the perspective of a claimant, but that a tribunal must also take into account 'wider implications' including 'operational objectives' of the employer.

[157]The EHRC Code includes examples of adjustments which may be reasonable:a. making adjustments to premises

b. allocating some of the disabled person's duties to another worker

c. transferring the worker to fill an existing vacancy

d. altering the worker's hours of working or training

e. assigning the worker to a different place of work or training or arranging home working

f. allowing the worker to be absent during working or training hours for rehabilitation, assessment or treatment

g. acquiring or modifying equipment

h. providing supervision or other support.

[158]In O’Hanlon v Revenue and Customs Commissioners

[2007] ICR 1359

, the Court of Appeal endorsed the EAT’s view that it will be a “rare case indeed” where paying higher or more sick pay to a disabled employee than would be payable to a non-disabled person would be a reasonable adjustment. Harassment – Section 26 Equality Act 2010

[159]Under section 26 Equality Act 2010 (1) a person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[160]With a claim for harassment the claimant must prove on the balance of probabilities that the conduct he has complained of occurred.

[161]The test of whether the conduct amounted to harassment is part objective and part subjective. The Tribunal must take into account the claimant’s subjective perception but it is also required to look at that objectively to see if it was reasonable for the claimant to have considered his dignity to be violated or that it created an intimidating, hostile, degrading, humiliating or offensive environment.

[162]In Grant v HM Land Registry

[2011] EWCA Civ 769

the Court of Appeal said that: “Tribunals must not cheapen the significance of the words “intimidating, hostile, degrading, humiliating or offensive environment”. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”

[163]In Richmond Pharmacology v Dhaliwal

[2009] ICR 724

the EAT stated: “Dignity is not necessarily violated by things said or done which are trivial and transitory, particularly if it should have been clear that any offence was unintended. While it is also important that employers ,and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

[164]Whether or not the conduct is related to a protected characteristic is a matter of fact for the Tribunal drawing on all the evidence before it. Victimisation – Section 27 Equality Act 2010

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

(2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information about proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

[166]In a victimisation claim there is no need for a comparator. The Act requires the Tribunal to determine whether the claimant had been subject to a detriment because of doing a protected act. As Lord Nicholls said in Chief Constable of the West Yorkshire Police v Khan

[2001] IRLR 830

:- “The primary objective of the victimisation provisions ... is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their statutory right or are intending to do so.”

[167]The Tribunal has to consider(1) the protected act being relied on;

(2) the detriment suffered;

(3) the reason for the detriment;

(4) any defence; and

(5) the burden of proof.

[168]To benefit from protection under the section the claimant must have done or intended to or be suspected of doing or intending to do one of the four kinds of protected acts set out in the section. The allegation relied on by the claimant must be made in good faith. It is not necessary for the claimant to show that he or she has a particular protected characteristic but the claimant must show that he or she has done a protected act. An act can be protected even if the individual does not expressly make reference to a breach of the Equality Act 2010. However, the facts that are asserted must be capable of being a breach of the Equality Act 2010.

[169]The question then to be asked by the tribunal is whether the claimant has been subjected to a detriment. The protected act must be the reason for the treatment which the claimant complains of, and the detriment must be because of the protected act. There must be a causative link between the protected act and the victimisation and accordingly the claimant must show that the respondent knew or suspected that the protected act had been carried out by the claimant, (South London Healthcare NHS Trust v AlRubeyi EAT0269/09).

[170]What this means is the claimant must first show that he has done something which is a protected act under the Equality Act 2010. Having established a protected act the claimant must show there has been a detriment. The issue for the Tribunal to determine is whether or not there is a causal connection between the act and detriment Detriment on the grounds of having made a protected disclosure (section 47B Employment Rights Act 1996);

[171]Section 47B of the Employment Rights Act 1996 says: “A worker has the right not to be subjected to any detriment by an act, or any deliberate failure to act, by his employer done on the ground that the workers made a protected disclosure.”

[172]Section 47B that if the worker is an employee then dismissal cannot be a detriment. The reason for this is that an employee can bring a claim for automatic unfair dismissal under section 103A Employment Rights Act 1996. A worker who is not an employee cannot bring an unfair dismissal claim so if their employment is terminated it can only be brought as a claim for a detriment.

[173]Detriment is not defined in the Employment Rights Act 1996. The caselaw on discrimination provides guidance on what is a detriment. Something will be a detriment if a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment. An unjustified sense of grievance cannot amount to a detriment. Shamoon v Chief Constable of the RUC

[2003] IRLR 285

[174]Section 48(2) provides that on a complaint to an Employment Tribunal “… it is for the employer to show the ground on which any act, or deliberate failure to act, was done”

[175]Care must be taken to establish the ‘reason why’ the employer acted as it did. The ‘reason why’ is the set of facts operating on the mind of the relevant decision-maker, it is not a ‘but for’ test. The correct test is whether 'the protected disclosure materially influences (in the sense of being more than a trivial influence on) the employer's treatment of the whistleblower’ (Fecitt v NHS Manchester

[2012] IRLR 64

at [45]).

[176]If an employment tribunal can find no evidence to indicate the ground on which a respondent subjected a claimant to a detriment, it does not follow that the claim succeeds by default. In Ibekwe v Sussex Partnership NHS Foundation Trust,

UKEAT/0072/14/MC

the EAT concluded that there were no grounds for interfering with the tribunal’s unequivocal finding that there was no evidence that an unexplained managerial failure to deal with an employee’s grievance was on the ground that the grievance contained a protected disclosure Unfair dismissal – ordinary unfair dismissal (section 98 Employment Rights Act 1996);

[177]The law on unfair dismissal is set out in the Employment Rights Act 1996. The relevant provisions are 94—98. A claim for unfair dismissal can only be pursued when the employee is dismissed. Under section 94c an employee is dismissed when they terminate the contract in circumstances in which they are entitled to do so without notice by reason of the employer’s conduct. This is often known as a constructive dismissal.

[178]The circumstances that entitle the employee to terminate the contract without notice are as follows:178.1 there must be a breach of contract by the employer;

178.2 that breach must be sufficiently important to justify the employee resigning;

178.3 the employee must leave in response to the breach not some unconnected reason; and

178.4 the employee must not delay as such as to affirm the contract.

[179]The breach relied on can be a breach of an express or implied term. Every contract of employment contains an implied term that 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 the employer and employee Malik & Mahmud v Bank of Credit and Commerce International SA -1997- IRLR 462, HL.

[180]Where there are a number of incidents culminating in a “last straw”, the Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust

[2019] ICR 1

held that tribunals should ask themselves the following questions (see [55]):(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

(2) Has he or she affirmed the contract since that act?

(3) If not, was that act (or omission) by itself a repudiatory breach of contract?

(4) If not, was it nevertheless a part (applying the approach explained in Omilaju

[2005] ICR 481

) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) 8 breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation, for the reason given at the end of para 45 above.)

(5) Did the employee resign in response (or partly in response) to that breach

[181]The test to be applied in assessing the gravity of any conduct is an objective one and neither depends upon the subjective reaction of a particular employee nor the opinion of the employer as to whether its conduct is reasonable or not. Automatically unfair dismissal due to having made a protected disclosure (section Employment Rights Act 1996);

[182]Section 103A of the Employment Rights Act 1996 provides that: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure” Automatically unfair dismissal due to having asserted a statutory right (section Employment Rights Act 1996).

[183]Section 104(1) of the Employment Rights Act 1996 provides that: “An employee who is dismissed for the purposes of this Part is unfairly dismissed if the reason (or if more than one, the principal reason) for the dismissal is that the employee –(a) Brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or

(b) Alleged that the employer had infringed a right of his which is a relevant statutory right.”

Discussion and conclusions

[184]The structure of this discussion and conclusions is based on the summary of issues set out at the start of this judgment. We first address preliminary matters that underlie a number of different claims.

Preliminary Matters

[185]The claimant said that she was disabled due to her IBS, depression and anxiety. During evidence the claimant accepted that the depression and anxiety were interlinked and the anxiety was not a freestanding disability.

[186]The respondent accepted that the claimant was disabled due to depression from October 2019 and it had the requisite knowledge from then. The respondent’s position was that the claimant’s IBS was of no material relevance to the case.

[187]All the medical evidence the claimant provided related to the claimant’s depression and anxiety. This included her GP notes, reports from specialists treating her, Occupational Health reports and her own witness evidence. We were not provided with any evidence about her IBS. There was no dispute that the claimant had IBS and had done so for several years. However, we could not make any finding that the claimant was disabled for the purposes of the Equality Act 2010 because of the IBS because the claimant did not provide any evidence about her IBS and how it impacted on her ability to carry out normal day to day activities.

[188]Our conclusion is that the claimant has not shown she was disabled by virtue of her IBS at the relevant time. We also note that the claimant did not advance any arguments based on her IBS being a disability. We accepted the respondent’s point that the fact the claimant has IBS was of no direct relevance to the issues we needed to determine and was just an additional background matter.

[189]With regard to the claimant’s depression and anxiety, we accepted the position put forward by the respondent that these conditions are not freestanding but interlinked. This was accepted by the claimant and it was also evident from the medical evidence that the claimant provided.

[190]The question for the Tribunal to determine is at what point did the claimant become disabled for the purpose of the Equality Act 2010. The claimant’s absence started in March 2019. Initially she was signed off work with stress. She had no prior history of such conditions. She briefly returned to work in late 2019 before being signed off work again until her employment terminated in January 2021. The respondent accepts that by October 2019 the claimant was disabled.

[191]The question for us to determine is when the claimant’s depression became a long term condition, i.e. likely to last for 12 months of more, and whether or not that was earlier than October 2019.

[192]The claimant returned to work in October 2019. The documents from the time show that she was still experiencing symptoms of depression, such as panic attacks, at that time. The documents also show that one of the reasons the claimant returned to work at that time was financial, because her sick pay was ending. We considered whether the claimant may not actually have been fit to return to work at this point and if by then it was already evident that it was long term.

[193]Having looked at the contemporaneous medical documents we have concluded that was not the case. The claimant’s psychiatrist letter and her GP notes from the time indicate that her symptoms were ongoing but she had only been unwell for six months. The claimant’s doctors were supportive of her returning to work, suggesting that they thought her condition was improving. There is nothing within the medical evidence from August and September 2019 that suggest that the claimant’s condition was likely to last 12 months or more. With the benefit of hindsight it may appear inevitable that the claimant’s depression was a long term condition. However, the medical evidence does not show that this was the prognosis at the time.

[194]On this basis we have accepted the respondent’s arguments that the claimant’s condition became long-term in October 2019 and she was not disabled before this point. Protected Acts under the Equality Act 2010 and Qualifying Disclosures under the Employment Rights Act 1996

[195]All the alleged protected acts and qualifying disclosures the claimant says she made were set out or recorded in writing. Some were made in emails or letters written by the claimant. The claimant also says some of the things she said during meetings were protected acts or qualifying disclosures. There are written records of those meetings and we have accepted those records as being accurate. What the claimant said is not disputed. To decide whether or not anything the claimant said is protected has been a matter of interpretation of the contents of those documents and applying the relevant law.

[196]The first three disclosures the claimant says have some form of statutory protection all relate to the first grievance. They are:196.1 the email the claimant sent to Mark Gibbins dated 5 March 2019;

196.2 the formal grievance the claimant made on 6 March 2019; and

196.3 statements made by the claimant during the grievance held on 19 March 2019,

[197]We have dealt with these collectively as they are connected and the subject matter is the same, although the claimant added more detail as the grievance progressed.

[198]The claimant says that all three are protected acts for the purposes of the Equality Act 2010. We have considered carefully what was written by the claimant or recorded as being said by her in the meeting. We have not been able to identify anything said by the claimant, either in writing or orally, that could interpreted as being about discrimination or that she was making any complaint under the Equality Act 2010. She does not mention any protected characteristics, either directly or indirectly. Her complaints are about Mr Nikolov and how he has treated her. She does not suggest he is treating her less favourably or differently to anyone else. Neither does she suggest there is an underlying discriminatory reason for how he has acted. We have concluded that none of these three communications by the claimant are a protected act under the Equality Act 2010.

[199]The claimant has also said these communications are qualifying disclosures under section 43B Employment Rights Act 1996. The claimant’s complaints are about Mr Nikolov’s behaviour towards her. The claimant’s case was that she was complaining there had been a breach of the implied term of trust and confidence and that this placed individuals’ health and safety at risk. The questions for us to determine are:199.1 did she disclose information that shows that this may have been the case;

199.2 did the claimant reasonably believe such obligations were being breached; and

199.3 if she reasonably believed that disclosing this information was in the public interest.

[200]We find that in the initial email the claimant has not disclosed any information that could be interpreted as showing a breach of trust and confidence or a risk to health and safety. The claimant merely said she would be raising a grievance. She gives no indication of what the grievance may be about or what it could include. The contents are minimal and there is nothing to suggest that she is saying there is any risk to health and safety or a breach of trust and confidence. This email is not a qualifying disclosure.

[201]In the claimant’s grievance and in the meeting she provided more information. The information in both was sufficiently similar that we decided it was appropriate to consider both together. The claimant’s complaints were that that Mr Nikolov had been dishonest and she said that there was a breakdown in trust. We accept that the information is of a type that could show a breach of a legal obligation. We note that in the grievance she also expressly states that Mr Nikolov has “failed in his duty of care as my line manager” so we accept that the claimant reasonably believed this was what she was providing information about. The claimant’s complaints identify a possible breach of her own contract of employment, which is a breach of a legal obligation. Therefore, the grievance and statements in the grievance meeting could potentially be qualifying disclosures.

[202]The question is whether the claimant reasonably believed that this disclosure was in the public interest. The claimant says that it was because she also referred to other individuals who she says had experienced similar difficulties to her. This could be read as widening the scope of what the claimant was disclosing, so it was not purely about her own interests. However, this needs to be read in the context of the claimant’s complaints. The claimant made it clear at the time that she was raising the grievance to facilitate a change of line manager. The claimant referred to others having complaints about Mr Nikolov to add weight to her own grievance, but the reference to others at this point was minimal. Any belief she was assisting others also only went as far as a couple of immediate colleagues in her own team.

[203]Our conclusion is that the claimant did not reasonably believe that she was making disclosures in the public interest in March and May 2019. The purpose of raising the grievance was to complain about problems she had personally with Mr Nikolov and to facilitate a change in her own line manager. Any reference to others is incidental. Therefore, neither of these communications are qualifying disclosures.

[204]The claimant then said that her grievance appeal, dated 14 May 2019, was both a protected act and qualifying disclosure. She also said that she made protected acts and qualifying disclosures during the grievance appeal hearing on 20 June 2019.

[205]The content of the appeal and what the claimant said at the appeal hearing is very similar to the original grievance and grievance hearing. The additional information added by the claimant is minimal. She provides more information about others who she says also have similar complaints about Mr Nikolov. However, the focus remains on the claimant’s complaints about how Mr Nikolov has treated her and the impact on her health as a result. Again, the reference to others is to corroborate what she is saying, rather than seeking to raise wider complaints on their behalf. The complaints also still only relate to a handful of immediate colleagues who have had dealings with Mr Nikolov, as opposed to a wider group of individuals. Again, there is also no reference to anything that could be interpreted as a complaint about discrimination. There is no reference to any protected characteristic or any other complaint under the Equality Act 2010.

[206]Our conclusion on these communications is the same, in that the claimant did not say anything in the appeal or appeal hearing that was either a protected act or a qualifying disclosure.

[207]The next communication that the claimant relies on is the second formal grievance dated 11 December 2019. The grievance itself is said to be a protected act under the Equality Act 2010 and a qualifying disclosure. The claimant also says she made qualifying disclosures:207.1 in the hearings and appeals in respect of this grievance;

207.2 in a letter sent to Mr Crook on 13 March 2020; and

207.3 subsequent hearings and appeals relating to that grievance. The claimant says the grievance is a protected act and a qualifying disclosure. She only says that she made qualifying disclosures the letter dated 13 March 2020 and the hearings and appeals.

[208]The grievance is mainly about disability discrimination. The claimant sets out at length why she says that she is disabled under the Equality Act 2010 and they ways in which she says the respondent was failing to comply with its obligations to her under the Equality Act 2010. The grievance is a protected act.

[209]In the first half of the grievance the claimant sets out her complaints of discrimination and she also expressly raises complaints about health and safety. These complaints are entirely about how the claimant says the respondent has treated her or ways in which the respondent has failed in its obligation to her. While these complaints relate to breaches of legal obligations (discrimination) and health and safety they are personal complaints and we do not accept that the claimant can reasonably believed that these parts of her grievance were in the public interest.

[210]In the latter half of the grievance the claimant sets out complaints which she describes as whistleblowing. She says that the respondent is failing to provide a safe system of work for its employees. She refers to two other employees who she says have raised grievances about bullying and discrimination and been signed off work. The additional information disclosed in this section is minimal. However, it needs to be read in context with the first half of the letter. Our interpretation is that this section sets out why the claimant at this point is saying that her complaints about her own situation have a wider impact. In the earlier grievances our conclusion is that the claimant’s references to others was to try and provide corroboration to what she said happened to her. In the second grievance the claimant is more overtly saying that her situation is indicative of a wider problem or discrimination. On this basis we find that the second grievance does amount to a qualifying disclosure.

[211]The letter dated 13 March 2020 was sent by the claimant in response to questions asked by Mr Crook. The claimant has said this was a qualifying disclosure because the letter was concerning “management behaviour and culture towards employees”. Mr Crook’s questions were about the claimant’s own grievance. He did not ask her anything about the whistleblowing section of her grievance. The focus was on what the claimant said happened to her. The claimant’s letter addressed each of these questions in turn. The claimant refers in passing the whistleblowing part of her original grievance. However, the letter is focussed on restating her complaints about what happened to her. She does not state anything in this letter that could be interpreted as relating to the wider public interest. We conclude the complaints reiterated in this letter are personal and the claimant could not reasonably believe this was in the public interest. This letter does not include any qualifying disclosure.

[212]The claimant also says that during the course of the hearings and appeals she made qualifying disclosures. The claimant did not attend any hearings for this grievance. She has not expressly identified anything else she said in the correspondence that may have been a qualifying disclosure. We have considered the appeal letter itself. This letter is lengthy and very legalistic, quoting caselaw and challenging the grievance outcome by reference to the legal tests for discrimination in some detail. There is little in the way of information included. The only information relates to specific allegations by the claimant of discrimination against herself. She concludes by stating she will be starting Early Conciliation. There is nothing within the appeal letter that could be interpreted as being in the public interest. Again it is a wholly personal complaint. Therefore, it is not a qualifying disclosure.

[213]The final correspondence the claimant relies on is the third grievance. The claimant only says this is a protected act for the purposes of a victimisation claim. The focus of this grievance is on the claimant’s complaint surrounding her absence from work during 2020 and how she was paid. She alleged that she had been forced by the respondent to stay off work and this was in effect what she describes as medical suspension.

[214]The respondent’s case is that this is not a protected act because the claimant does not expressly complain of discrimination or that the treatment was because of a protected characteristic. Given how legalistic some of the claimant’s correspondence had been this is notable, because from December 2019 the claimant had very clearly set out allegations of discrimination or when she said she was making protected disclosures. However, when read in full we find that the third grievance is still understandable as a complaint of disability discrimination. The claimant says she is raising a grievance. She complains about what has happened and the things she is complaining about are inextricably linked with the claimant’s anxiety and depression which she has frequently already said amount to disabilities. We accept that the third grievance is a protected act.

The Claims

[215]We refer to the table at the start of this judgment in which the various factual allegations are set out along with the different type of claim the claimant has pursued in respect of that allegation. Allegations A - Failing to postpone the grievance hearing on 19 March 2019

[216]The failure to postpone the grievance was only said to be a failure to make reasonable adjustments. The claimant confirmed during the hearing that this was not being pursued. In any event, we have found that the claimant was not disabled at this point therefore the respondent was not under a duty to make reasonable adjustments. Allegation B - Unnecessary delays to the grievance process from March 2019 Allegation S - Unnecessarily delaying the second grievance

[217]The claimant says that this was victimisation and a detriment due to having made protected disclosures.

[218]For the first grievance process and appeal the claimant relies on the email in March 2019, her first grievance and statements she made in the grievance meeting. We have found that these were neither protected acts nor qualifying disclosures. Therefore, the claims for detriments based on delays in the first grievance cannot succeed.

[219]Irrespective of this, we have also found as a matter of fact that there were no unnecessary delays in respect of the first grievance procedure. The outcome of the grievance and the appeal both took slightly longer than the timescales set out in the policy. However, those timescales were guidance and the additional time was not significant so we do not find this was a detriment.

[220]With respect to the second grievance, we have found that was a protected act and a qualifying disclosure.

[221]As a matter of fact there were delays in the grievance process. The grievance was raised in December 2019 and it took until May 2020 for an outcome to be sent to the claimant. However, we accepted Mr Crooks’ explanation for the delay. This was in part due to his other work commitments and also the complexity of the grievance itself. This was then exacerbated by Covid-19 and the start of the national lockdown. While there was a delay we do not find that any delay was unnecessary as alleged by the claimant.

[222]The delays were also not because the claimant had done any protected act or made any qualifying disclosure. As a matter of fact, the reasons for the delay were those set out by Mr Crooks.

[223]As framed in the issues, the claimant has not specifically complained about delays in the second grievance appeal. Again, as a matter of fact there were delays but again we accepted the explanation of Mr Morrison setting out why the appeal took longer than the guidance. Any delays were not unnecessary. Similarly, the reason for the delays were as explained by Mr Morrison, rather than due to the fact that the claimant had done a protected act or made any qualifying disclosure.

[224]Therefore, these claims for victimisation and detriment due to having made a protected disclosure do not succeed. Allegation C - Inappropriate and heavy workload on the claimant’s phased return Allegation D – Setting the claimant inappropriate targets

[225]We have grouped these claims together as they all relate to the arrangements put in place when the claimant returned to work in October 2019. The claimant says this was discrimination arising from a disability, there was a failure to make reasonable adjustments and it was harassment. In respect of the allegations about the her workload, the claimant also says this was victimisation and a detriment due to having made a protected disclosure.

[226]Our findings of fact about what happened when the claimant returned to work can be summarised as follows:226.1 A phased return was implemented on the claimant’s return. This was then extended beyond the original period.

226.2 We accepted the evidence of Ms Hall and Ms Arthur that the amount of work that was allocated to the claimant was significantly less than someone in her role and at her level would usually be expected to do.

226.3 We also accepted the evidence of Ms Hall and Ms Arthur that there were no fixed deadlines set by which the claimant was expected to complete various tasks.

226.4 At the time the claimant gave no indication that she thought the workload was inappropriate or too high. This is despite being in constant contact with Ms Arthur about her work.

226.5 Although the claimant had been signed off work due to stress and anxiety this was related to her difficulties with Mr Nikolov. There was no indication that she had any difficulties with the nature of the work itself or the workload before her period of absence. On the contrary the claimant had been a high performer.

226.6 The purpose of the adjustments were to ease the claimant back into the work and workplace following a period of absence.

[227]The underlying allegations of fact made by the claimant is that she was given an inappropriate or heavy workload and inappropriate targets. As a matter of fact we find this was not the case. The claimant effectively had a bespoke role created for her to facilitate her return to work. The amount of work allocated to her was relatively low compared to her normal workload and there were no fixed targets for her to meet. The claimant has not shown on the balance of probabilities that that in this respect she was subjected by the respondent to the unfavourable treatment that she has alleged occurred. Her claim for discrimination arising from a disability does not succeed.

[228]The claimant has also said that in relation to the workload and targets the respondent failed to make reasonable adjustments. The first issue for us to determine is whether there was any provision, criterion or practice (“PCP”) applied by the respondent that placed the claimant at a substantial disadvantage compared to others without her disability.

[229]In the list of issues the claimant has identified an inappropriate workload and inappropriate targets as being PCPs. We struggled to understand how these could be PCPs. The workload and targets put in place for the claimant on her return to work were bespoke. A temporary role had effectively been created to facilitate the claimant’s return to work. These particular arrangements did not apply to anyone else so we find they cannot amount to PCPs.

[230]We have considered an alternative approach based on a slightly different PCP, which was not expressly identified by the claimant. This was the workload and targets associated with the claimant’s substantive role. These would be practices or provisions that applied to all vice-presidents in the department. Had the respondent expected the claimant to return to work with her usual workload and targets in place then it is likely she would have been at a disadvantage compared to others who were not disabled.

[231]This is not what happened and the respondent did make adjustments to the claimant’s role, workload and targets. We have considered whether the argument that the claimant was trying putting forward was that the adjustments made by the respondent to were not sufficient, hence she remained at a disadvantage, i.e. further adjustments should have been made.

[232]In the list of issues the claimant identified the adjustments she said the respondent failed to make. The adjustments the claimant identified were:232.1 reducing her workload;

232.2 undertaking a stress risk assessment;

232.3 avoiding any triggers identified in the stress risk assessment;

232.4 setting easier targets; and

232.5 conducting review meetings to check on the claimant’s progress.

[233]As a matter of fact the respondent did make adjustments identified by the claimant. Our findings are as follows:233.1 The claimant’s workload was reduced. We accepted Ms Arthur’s evidence that the claimant was only undertaking about 20-30% of the workload that would usually be expected of a vice-president at the claimant’s level. A reduction beyond this would not be a reasonable adjustment and the claimant had not indicated the workload was too high at the time.

233.2 The claimant had no specific targets set during her phased return.

233.3 The claimant was in constant contact with Ms Arthur and had regular discussions. Her progress was being reviewed continually.

233.4 A stress risk assessment would not in itself be an adjustment. The respondent had taken Occupational Health advice and implemented all their recommendations.

[234]To summarise, the respondent made numerous adjustments on the claimant’s return to work. Any additional adjustments would go beyond what was reasonable at the time. Therefore, the claim that the respondent failed to make reasonable adjustments in October 2019 does not succeed.

[235]The claimant is also pursuing a claim for harassment related to disability based on her allegations of in appropriate workload and targets. We have concluded that the workload the respondent put in place was appropriate and there were no targets during the claimant’s phased return to work. The claimant has not proved on the balance of probabilities that the unwanted conduct occurred. On the contrary, the respondent put in place adjustments and created a bespoke role to facilitate the claimant’s return to work. Looked at objectively, this cannot be viewed as conduct that amounts to harassment.

[236]Finally, the claimant says that these arrangements were detriments, both being victimisation and due to having made protected disclosures. We have already found that none of the communication before October 2019 was a protected act or qualifying disclosure. However, we also find that the way the respondent treated the claimant at this time cannot reasonably be seen as being a detriment. In fact the claimant was treated well by the respondent.

[237]To summarise, all claims related to the claimant’s targets and workload on her return to work fail. The respondent made adjustments for the claimant, creating a bespoke role with a significantly reduced workload and no targets. Allegation E - Salary reduction on 14 Oct 2019

[238]The claimant said this was victimisation and a detriment due to having made a protected disclosure. This claim fails for the following reasons:238.1 as a matter of fact no salary reduction was made on 14 October 2019;

238.2 we did not accept that any of the communications the claimant made before then were either protected acts or qualifying Allegation F - Constantly reminding the claimant that she would need to work with Mr Nikolov

[239]The claimant has said this was victimisation, a detriment due to making a protected disclosure and harassment on the grounds of disability.

[240]The victimisation and whistleblowing claims fail because we did not accept that any of the communications the claimant made before then were either protected acts or protected disclosures.

[241]Our relevant findings of fact that relate to this allegation are as follows:241.1 The claimant remained part of the BX group within the respondent. Mr Nikolov was also part of that group, although the claimant was no longer managed by him or even in the same team.

241.2 The claimant knew she would potentially come across Mr Nikolov when she was in the office and be expected to be in meetings with him sometimes, including video meetings.

241.3 The claimant discussed her concerns with Ms Arthur. Attempts were made to find the claimant a desk on a different floor to reduce the amount of contact she was likely to have with Mr Nikolov when she returned to the office.

[242]We accepted that the claimant was concerned about the prospect of seeing Mr Nikolov. It was something that played on her mind and caused her to be upset. However, as a matter of fact she was not required to work with Mr Nikolov as he was in a different team. She was not told by Ms Arthur or anyone else that she would need to work with him.

[243]While the claimant may have been constantly remembering the fact he was in the same department, this was not conduct by anyone else. It was a result of the broader situation, i.e. that he was still employed in the same wider group within the respondent business. The claimant may have been upset by this but this does not constitute harassment, when looked at objectively taking into account the wider circumstances. It was not conduct by anyone else, the upset was the claimant’s reaction to the circumstances.

[244]This claim for harassment does not succeed. Allegation G - Failure to consult with the claimant about her return to work process and reasonable adjustments

[245]The claimant says this was victimisation and a detriment due to her having made a protected disclosure. These claims fail for the following reasons:245.1 Based on our findings of fact we have concluded that there was consultation with the claimant about her return to work and adjustments that were put in place. The claimant was reviewed by Occupational Health and she had numerous discussions with Ms Hall, Ms Arthur and Ms Forbes before and after she returned to work.

245.2 In any event, we did not accept that any of the communications the claimant made before then were either protected acts or protected Allegation H - Reducing the claimant’s pay to a pro-rata level on 14 November

[246]The claimant says this is discrimination arising from her disability. This claim fails for the following reasons.

[247]As a matter of fact the claimant’s pay was not reduced on 14 November 2019. Her phased return to work was due to end then. The phased return was extended and initially she was told that she would only be paid for the hours she worked, so her pay would reduce. This was in accordance with the underlying policy. This decision was changed so the claimant’s pay was not in fact reduced during her extended phased return. Therefore, there was no unfavourable treatment.

[248]We also note that the claimant had no contractual entitlement to receive fullpay when working reduced hours at that point. The claimant’s entitlement to sick pay had already expired. The respondent exercised its discretion and continued to pay the claimant in full. By doing this the claimant was potentially treated more favourably than others. Allegation I - Expecting the claimant to return to full substantive duties without adjustment on 6 December 2019

[249]This was originally said to be discrimination arising from a disability, a failure to make reasonable adjustments, harassment, victimisation and a detriment due to having made a protected disclosure. The claimant is not pursuing the claim for harassment or failure to make reasonable adjustments.

[250]We did not accept that any of the communications the claimant made before then were either protected acts or protected disclosures so those claims do not succeed.

[251]In terms of the remainder of the claims, our relevant findings of fact were as251.1 The adjustments put in place were to facilitate the claimant’s transition back into the workplace. Occupational Health did not advise that the claimant needed permanent adjustments to her role, such as permanent reductions in her workload or amended duties. Neither did the claimant suggest this was the case when she returned to work.

251.2 The claimant’s phased return was extended in November 2019. It continued into December 2019. She then took a period of annual leave and was due to return in early January 2020.

251.3 The earliest the claimant was expected to return to her full substantive duties was in January 2020, not 6 December 2019. Ms Arthur made it clear that in January they would continue to take into account Occupational Health advice and put in place any adjustments recommended at the time.

251.4 The claimant did not in fact return to work in January 2020. Had she done so, she had already been told adjustments would be made if needed.

[252]To summarise, in December 2019 there was an expectation that at some point in the future the claimant would return to her full substantive duties. There was no medical evidence that the claimant would not be able to do this in due course. However, there was no expectation that she would return to her full duties on 6 December 2019. There was no fixed timescale and it was subject to ongoing advice from Occupational Health.

[253]The claimant has not shown that she was expected to return to substantive duties without adjustments on 6 December 2019. Therefore, she has not shown that the unfavourable treatment she complains of occurred. Her claim that she was subjected to unfavourable treatment arising from her disability does not succeed.

[254]To summarise, all claims based on any expectation that the claimant return to her full duties fail because as a matter of fact there was no such fixed expectation. Allegation J - Salary reduction on 6 December 2019

[255]The claimant says this was a detriment due to having made a protected disclosure. This claim fails because:255.1 We did not accept that any of the communications the claimant made before then were either protected acts or protected

255.2 As a matter of fact her salary was not reduced on 6 December 2019. Allegation K - Informing the claimant that pay during absence was discretionary and no increase 11 Dec 2019.

[256]These claims were not pursued by the claimant so do not succeed. Allegation L – Overruling the claimant’s return to work by sanctioning an Occupational Health report without her authorisation on December 2019 / Requesting an Occupational Health report that determined the claimant was not fit to work without the consent or participation of the claimant Allegation M – Placing the claimant on medical suspension without the benefit of full pay from 19 Dec – 7 Jan 2021 Allegation N – Declaring the claimant unfit for work and effectively suspending her

[257]We will address these claims collectively as they all relate to the same underlying events. In December 2019 Occupational Health advised that the claimant was not fit to work. On 3 January 2020 Ms Arthur told the claimant to stay off work and she would be treated as being on sick leave. The claimant then remained signed off work until her employment terminated.

[258]The way the claimant has worded the allegations varies depending on the specific head of claim. The claims all relate to the decision made by Ms Arthur in January 2020 to tell the claimant to remain off work on sick leave. This decision was taken by Ms Arthur because Occupational Health had advised that the claimant was not fit to work at that point. The claimant’s complaint is about this decision, but she has also alleged:258.1 The respondent had deliberately sought advice from Occupational Health that she was not fit to work.

258.2 This was sought in order to place the claimant on sick leave.

258.3 There was some level of coercion involved, e.g. the decision was without her “consent or participation” or the report was “sanctioned” and was done to overrule her return to work.

258.4 This was also the gist of the third grievance, where she complains that she was medically suspended, which terminology the claimant repeats in her claim.

[259]The claimant says this was discrimination arising from a disability (L and N), a failure to make reasonable adjustments (N), and victimisation and a detriment due to the claimant having made a protected disclosure (L and M).

[260]Our findings of fact on the events underlying these claims are as follows:260.1 After her return to work the claimant had continued to experience symptoms of depression and anxiety. This included having panic attacks on occasions and needing to seek urgent medical care. The claimant was open with Ms Arthur about this. We accepted that Ms Arthur was genuinely concerned about the claimant’s health.

260.2 Although the claimant had returned to work she had remained on reduced hours and duties. She was not fit to return to her substantive role and normal hours.

260.3 The claimant had been reviewed regularly by Occupational Health. She originally had an appointment with Occupational Health scheduled for 18 December 2019 but this was cancelled.

260.4 The appointment was rescheduled to 19 December 2019. Had this not happened the claimant would not have been reviewed again until the middle of January 2020.

260.5 The claimant did not object to the rescheduled appointment. On the contrary the claimant engaged fully and after the appointment she sent a detailed update to Ms Arthur about what had been discussed.

260.6 Occupational Health advised that the claimant was not fit to work at all. The claimant saw this report before it was sent to Ms Arthur. The claimant did not challenge these findings. Neither did she say anything to Ms Arthur to suggest she did not agree with this conclusion.

260.7 After receiving the report Ms Arthur told the claimant she should remain off work and she would be treated as being on sick leave. The claimant did not object to this or say that she was fit to work. Her only concern was how much she would be paid during that time.

260.8 The claimant’s entitlement to company sick pay had expired by this point, due to her absence in 2019. The respondent paid the claimant her full pay until 14 February 2020. After this they paid her 65% of her pay, which is what she would receive if her application to BIPS was successful. The respondent did this voluntarily.

260.9 The claimant remained signed off work until her employment terminated. She was reviewed regularly by Occupational Health during this time who continued to advise that the claimant was not fit to work at all. The claimant did not say anything to the contrary or suggest she was fit to work. Notably, even when she raised her third grievance about this situation she did not state that she was fit to return to work.

[261]The claim for discrimination arising from a disability is framed in the following ways:261.1 the respondent overruled the claimant’s return to work by sanctioning the Occupational Health report without her authorisation; and

261.2 declaring the claimant unfit for work and effectively suspending her from work on 3 January 2020.

[262]First, as a matter of fact the respondent did not sanction an Occupational Health report without the claimant’s authorisation. The claimant was due to be seen on 18 December. This was initially cancelled, but then a new appointment was arranged immediately. The claimant participated in this process. No Occupational Health report was obtained without the claimant’s consent or authorisation. The claimant has not shown this unfavourable treatment occurred.

[263]On the allegation that the “respondent overruled the claimant’s return to work”, this is also contrary to our findings of fact. The claimant returned to work in early October 2019 because both her GP and Occupational Health said she was fit to do so with adjustments in place. By January 2020 the situation had changed. The medical advice from late December 2019 said the claimant was not fit to work, so Ms Arthur informed the claimant to stay off work and it would be treated as sick leave. Ms Arthur initiated that decision, but the claimant acquiesced. She was not forced to remain off work and she did not challenge the decision. It also cannot be described as a suspension, as the claimant was not otherwise fit to work.

[264]The claims for discrimination arising from a disability fail as the claimant has not shown the unfavourable treatment she alleges occurred. The claimant was unfit to work in early January 2020. All Ms Arthur did was confirm the position.

[265]For the reasonable adjustments claim, the claimant says the PCP was declaring the claimant unfit for work and effectively suspending her. Again, this is something that just happened to the claimant, so not a PCP. To the extent that there was a PCP, it could be following Occupational Health advice and informing an employee who was unfit to work to remain at home. This could place a disabled employee who wanted to work at a disadvantage.

[266]It is correct that the respondent did inform the claimant to remain off work because of the Occupational Health advice. As we have noted, at the time the claimant gave no indication that she disagreed with this or that she wanted to continue working. Therefore the claimant has not shown she was at a disadvantage. If she were, the question would be what reasonable adjustments could be made. The adjustments the claimant suggested are:266.1 moving the claimant away from interactions with her line manager;

266.2 changing the claimant’s line manager; and

266.3 undertaking a risk assessment and identifying triggers which may exacerbate the claimant’s impairments.

[267]These are all adjustments that relate to facilitating a return to work, were the claimant fit to return with adjustments in place. The Occupational Health report from December 2019 was clear; the claimant was not fit to work at all. We have already concluded that the respondent had made reasonable adjustments following her return to work in October 2019. The claimant’s health deteriorated to the point she was not fit to work even with adjustments. We cannot see how the adjustments the claimant is suggesting now would make any difference. By January 2020 the claimant was completely unfit to work. There is no evidence that any further adjustments at that time would have enabled the claimant to work in January 2020. Therefore, the respondent did not fail to make reasonable adjustments as these adjustments were not reasonable at that time.

[268]For the victimisation and whistleblowing detriment claims, we have concluded that the grievance dated 11 December 2019 was both a protected act and qualifying disclosure. As a matter of fact we have not found that the claimant was effectively medically suspended. Neither did we accept that her return to work was overruled. However, Ms Arthur did inform the claimant to stay away from work due to her being unfit to do so and it is possible that this could be viewed as a detriment by the claimant.

[269]To succeed with a claim for a detriment due to victimisation or whistleblowing there must be a causal connection between the protected act or disclosure and the detriment. The decision to inform the claimant to remain at home on sick leave was taken by Ms Arthur sometime between 27 December 2019 and 3 January 2020. We accepted that Ms Arthur did not become aware of the second grievance until she was interviewed in February 2020. The fact that the claimant had raised her grievance could not have been a factor in Ms Arthur’s decision. Therefore, these claims both fail. Allegation O – On 5 February 2020 notifying the claimant that her pay would reduce to zero

[270]The claimant originally said this this was harassment on the grounds of disability, victimisation and a detriment due to having made a protected disclosure. She also said that it was a PCP and there was a failure to make reasonable adjustments. The claimant no longer pursues the claim for harassment.

[271]As a matter of fact the claimant received a letter from HR advising her that her entitlement to sick pay had expired and her pay would reduce to nil with effect from 17 February 2020. This letter merely confirmed the position under the respondent’s sick pay policy. However, the claimant’s pay was not reduced to zero because the Ms Arthur had already informed the claimant that the respondent would pay her 65% of her pay while she was applying to BIPS.

[272]For the claim for failure to make reasonable adjustments the claimant says the PCP is the act of notifying her that her pay would reduce to zero. It is unclear exactly what the claimant is referring to. Is it the notification, i.e. the letter she received, or is it the reduction in pay? The claimant did receive a letter but her pay was not reduced to zero because a separate decision had been made to pay the claimant 65% from 14 February 2020. The only PCP that applied to the claimant is the practice of sending out standard letters to individuals whose pay is going to change when they are on sick leave. This PCP was applied to the claimant, in that she received the letter, but the claimant has not explained how this in itself was a disadvantage, given that she had already received confirmation that her pay would not reduce to zero.

[273]With regard to the rate of pay, the claimant has said that it would have been a reasonable adjustment to extend her time on full pay. By February 2020 the respondent had already been paying her in full since her return to work at the beginning of October 2019, even though she remained on a phased return up until her annual leave in the middle of December 2019. The respondent had also paid the claimant in full from the beginning of January 2020 until 14 February 2020. It is well established that continuing to pay an employee in full, in excess of any sick pay policy, will not be a reasonable adjustment except in exceptional circumstances. The respondent exercised its discretion and paid the claimant as if she had already been successful in a BIPS application. This already went beyond any duty to make reasonable adjustments. We don’t accept the claimant’s position that it would have been a reasonable adjustment to continue paying her in full given she was not fit to work. Therefore, the claim that there was a failure to make reasonable adjustment does not succeed.

[274]For the victimisation and whistleblowing claims the claimant has said that the detriment was subjecting her to a salary reduction on 5 February 2020. The claimant had raised her second grievance by then, which we found was both a protected act and qualifying disclosure.

[275]There is no evidence that the fact the claimant had raised her grievance was a factor in the decision making about the claimant’s pay. The decision had already been taken by Ms Arthur, and communicated to the claimant on 16 January 2020. As we have already found, at this point Ms Arthur was not aware of the second grievance. Therefore, the victimisation and whistleblowing claims do not succeed. Allegation P – on 13 February 2020 notifying the claimant that her bonus was reduced due to her absence without consideration of mitigating factors.

[276]The claimant says that this was unfavourable treatment arising from a disability and a detriment due to having made a protected disclosure.

[277]The claimant received a bonus in 2020. It was lower than she had received in 2019. This was in part due to her lower rating and in part because it was slightly reduced to reflect the fact the claimant had been absent. As we have found, the reduction did not fully reflect the amount of time the claimant was absent. It was just a partial reduction.

[278]The unfavourable treatment the claimant has complained about was the reduction in her bonus because of her absence without considering mitigating factors. The bonus was reduced because of her absence. However, the relevant absence is that from March-September 2019. We have found that at that time the claimant was not disabled for the purposes of the Equality Act 2010. This means that the absence was not arising from a disability. We also note that although the bonus was reduced mitigating factors were taken into account, as the bonus was only partially reduced and the reduction did not fully reflect the claimant’s level of absence.

[279]The claimant has also said that the bonus was reduced because she made a protected disclosure. We have already accepted as a matter of fact that the claimant’s bonus was adjusted due to her absence, in line with the respondent’s guidance on calculating bonuses. There is no evidence that the claimant’s grievance may have been a factor when deciding on the level of the claimant’s bonus. It is also likely that the decision was made before Ms Arthur was even aware of the grievance. Ms Arthur informed the claimant of her compensation package on 13 February 2020 and it is likely the decision was made before this. However, she only attended the grievance investigation meeting until later that day. This claim also does not succeed. Allegation Q – Notifying the claimant she would not receive an increase to base salary

[280]The claimant has said this was discrimination arising from a disability, a failure to make reasonable adjustments and a detriment due to victimisation and having made a protected disclosure.

[281]The claimant had no contractual right to a payrise. As a matter of fact we accepted Ms Arthur’s evidence that the decision not to increase the claimant’s salary was based on comparison of her pay with market data, and she was already at the higher end. We have found as a matter of fact that the decision not to increase her pay was wholly unrelated to her sickness absence. On this basis a claim that the decision not to increase her pay was discrimination arising from a disability fails.

[282]The claimant also says it was a failure to make reasonable adjustments. She says the PCP was the notification that her salary would not increase due to her absence from work. As a matter of fact, the claimant was not told her pay would not increase due to her absence. She was told this was a factor when calculating the bonus. The explanation Ms Arthur gave to the claimant about the salary only referred to the market data.

[283]When looking at what PCP may have been applied, it would seem to be the decision to base salaries on comparison with market data. This was applied, but this PCP did not put the claimant at any particular disadvantage. Her absence or ill-health was irrelevant to this decision. Therefore .a claim for failure to make reasonable adjustments does not succeed as the claimant has not shown she was placed at a disadvantage in comparison with someone who was not disabled.

[284]Finally, again this decision took place after the claimant raised her second grievance which is both a protected act and qualifying disclosure. However, we have already found that the decision was made based on a comparison with market data. The claimant has not provided any evidence that her grievance may have been a factor. It is also likely that the decision was made before Ms Arthur was even aware of the grievance, having been made before 13 February 2020. Allegation R – Declining the claimant’s application for BIPS Allegation T – Declining to uphold the claimant’s appeal against the outcome of BIPS

[285]The claimant says that this is discrimination arising from a disability, a failure to make reasonable adjustments, victimisation and a detriment due to whistleblowing.

[286]As a matter of fact, the claimant’s applications to BIPS were refused as was her appeal against the first rejection.

[287]These decisions were not made by the respondent. They were made by UNUM. The consequence of this is as follows:287.1 Denying the claimant’s applications was unfavourable treatment but it was not done by the respondent. The extent of the respondent’s involvement was to have in place a policy with UNUM under which the claimant was eligible to apply for payment under BIPS.

287.2 For the reasonable adjustments claim, the claimant has said the PCP was declining her application. This is an individual decision, not a PCP. The decision was also made by UNUM, not by the respondent.

287.3 The rejection would be a detriment. Again, the decision was by UNUM not the respondent. There is also no evidence that UNUM would have been aware of the grievance, let alone that it was a factor in their decision.

[288]During the course of the hearing the claimant appeared to try and reframe how this complaint was presented. Rather than claim directly about UNUM’s decision she sought to argue that the respondent was responsible because they knew that she would not be successful with her claim because of how workplace stress was treated under the relevant policy and they were responsible for that policy. She also suggested that she had been advised to apply for BIPS even though the respondent knew she would not succeed.

[289]This was not the case advanced by the claimant initially. So far as it is possible for us to engage with this line of argument, we have concluded as289.1 Any claims for victimisation or whistleblowing detriment cannot succeed. The relevant policies and agreements between the respondent and BIPS that determine who is eligible under the scheme pre-date anything the claimant did that could be a protected act or qualifying disclosure.

289.2 The respondent also first suggested to the claimant that she apply under BIPS in July 2019, before her second grievance that we found was a protected act and qualifying disclosure.

289.3 The relevant policies that determined who was eligible under BIPS could be a PCP. The purpose of BIPS, and therefore the relevant PCP, is to provide financial assistance to those with long term medical conditions. The people who benefit are more likely to be disabled. The claimant has not set out how this policy could disadvantage her compared to others who are not disabled.

289.4 Similarly, although the refusal was unfavourable treatment that treatment was not because of ‘something’ arising from her disability. The ‘something’ would be the claimant’s absence. It was the absence that put her in a position that she could apply. This was why the respondent suggested she applied, it was not the reason her application was refused.

[290]Essentially, the case the claimant sought to advance is different to the one she pursued. The decision on her BIPS application was not made by the respondent. They did not treat the claimant unfavourably in this respect, neither did they subject her to a detriment. Her actual complaint has become about the underlying policy and the criteria she failed to meet. This was not how her case was originally set out and was not fully particularised or explained and is not one we can determine.

[291]Therefore, all the claims about the claimant’s unsuccessful BIPS application do not succeed. Allegation U - Salary reduction on various dates

[292]The claimant says these were all detriments and victimisation or due to having made a protected disclosure.

[293]The relevant facts for these claims are as follows:293.1 At all relevant times the claimant was not fit to work and her entitlement to any sick pay under the respondent’s sick pay policy had expired.

293.2 On 14 February 2020 the claimant’s pay was reduced to 65% which was the equivalent to what she would receive if successful with her BIPS application.

293.3 Her pay remained at this rate until the end of December 2020. There were no reductions in her pay in February 2020, March 2020, June 2020 or September 2020.

293.4 At various points she received the outcome of her BIPS application. This was not a reduction in her salary by the respondent.

293.5 Her pay did reduce to nil after the end of December 2020. She received some pay between then and the termination of her employment as she took her accrued annual leave.

[294]As a matter of fact the respondent did not reduce the claimant’s salary as she alleges. The amount she received reduced on 14 February 2020 when she moved from full pay to 65%. Then it reduced again to zero in January 2021.

[295]There is no evidence any reductions in pay that did occur were in any way connected to the fact the claimant had done any protected act or made any protected disclosure. On the contrary, at all times the respondent had been exercising its discretion to pay the claimant more than she was entitled to under her contract. Any reduction was due to this discretion being reviewed, such as after the rejection of her second BIPS application.

[296]Therefore, these claims also do not succeed. Constructive dismissal

[297]The claimant has advanced three different types of unfair dismissal claim based on having been constructively dismissed:297.1 ordinary unfair dismissal;

297.2 automatic unfair dismissal because the claimant had made protected disclosures; and

297.3 automatic unfair dismissal because the claimant had asserted a statutory right. Automatic unfair dismissal - whistleblowing

[298]To succeed with a claim that the claimant was automatically unfairly dismissed for whistleblowing in the context of a constructive dismissal the claimant will need to show the following:298.1 she made protected disclosure;

298.2 the respondent subjected her to a detriment on the ground of that protected disclosure; and

298.3 she was constructively dismissed and the conduct that she says she resigned in response to was that unlawful detriment.

[299]We have already found that the respondent did not subject the claimant to any detriments on the ground that she had made a protected disclosure. As no underlying whistleblowing detriment claim has succeed a claim that she constructively dismissed and that dismissal was automatically unfair on this ground also cannot succeed. Automatic unfair dismissal – asserting a statutory right

[300]The claimant’s claim based on her having asserted a statutory right was unclear. In the list of issues the claimant relied on section 13 Employment Rights Act 1996 (unlawful deduction of wages) and section 64 Employment Rights Act 1996 (suspension on medical grounds). She says she relies on all three grievances and the appeal dated 29 May 2020.

[301]We have not found at any point that the claimant complained that the respondent had made an unauthorised deduction from her wages in any grievance. She has complained about her pay, both how much she received while off sick and the level of her bonus and lack of pay rise. However, she has not said that the respondent made any deduction at any point and did not make a complaint about this in any grievance.

[302]In the final grievance the claimant has asserted that during 2020 she was suspended on medical grounds. The provisions under section 64 Employment Right Act 1996 set out an entitlement to pay when suspended on medical grounds, but that only applies in very specific circumstances that do not apply in the claimant’s case. They primarily relate to occasions when an employee should be suspended due to working with various hazardous substances. The provisions clearly do not apply in the claimant’s case.

[303]Therefore, even if the claimant were to show she was constructively dismissed it cannot be automatically unfair due to having asserted a statutory right as the claimant has not shown she asserted any statutory right. Constructive dismissal – ordinary unfair dismissal

[304]In the list of issues the claimant did not specify what it is she says the respondent did that she says breached any terms of her contract of employment. In the absence of any such detail we can only reach conclusions based on the findings of fact we have reached in respect of the specific allegations of fact the claimant has made in other parts of her claim.

[305]What the claimant has set out is a relatively lengthy list of what she says are express and implied terms of her contract of employment that she says the respondent breached. These are:305.1 Implied terms:305.1.1 trust and confidence;

305.1.2 to deal promptly with grievances and grievance appeals;

305.1.3 to follow appropriate procedures for grievances;

305.1.4 to make reasonable adjustments;

305.1.5 duty of care for health and safety of employees; and

305.1.6 not to abuse the sickness absence policy.

305.2 Express terms:305.2.1 to follow appropriate procedures for grievances;

305.2.2 not to unlawfully deduct the claimant’s wages;

305.2.3 follow appropriate procedures for suspension; and

305.2.4 to increase the claimant’s base salary, despite her absence.

[306]The first issue for us to consider is the extent to which any of the above terms were terms of the claimant’s contract of employment. It is uncontroversial, and accepted by the respondent, that all contracts of employment include the following implied terms:306.1 mutual trust and confidence;

306.2 to deal reasonably and promptly with grievances and appeals; and

306.3 to take all reasonably practicable steps to provide a safe system of work. Below we set out our conclusions on whether there has been any breach of those terms.

[307]On the other alleged terms (express and implied) we have concluded as307.1 There is no implied term to make reasonable adjustments generally. If an employer is under a duty to make reasonable adjustments under the Equality Act 2010 it could be a breach of another implied term (e.g. trust and confidence) to fail to make those adjustments. In this case we have found there was no failure to make reasonable adjustments in any event.

307.2 There is no implied term “not to abuse the sickness absence policy”. If an employer did abuse a non-contractual sickness policy that could in some circumstances be a breach of the implied term of mutual trust and confidence. Based on our findings of fact there is nothing the respondent did that could be viewed as an abuse of their sickness absence policy.

307.3 The respondent’s grievance process was non-contractual therefore there was no express term of the claimant’s contract about compliance with grievance procedures. Only the implied term above is relevant.

307.4 All contracts include terms about payment of wages. In the claimant’s case she was at all times paid in accordance with her contract of employment. There were no unlawful deductions from her wages.

307.5 There was no express term that the respondent should “follow appropriate procedures for suspension”. In any event, the claimant was not at any point suspended.

307.6 There was no express term of the claimant’s contract of employment entitling her to an increase in her base salary.

[308]This leaves the implied terms above of trust and confidence, dealing reasonably and promptly with grievances and providing a safe place of work.

[309]In terms of the various grievance procedures, we concluded:309.1 The timescales in the respondent’s grievance procedures were guidance, rather than fixed.

309.2 With the first grievance, we concluded that any delays were short and not unnecessary. The first grievance and appeal were both concluded within a relatively short period of time.

309.3 The second grievance and appeal were prolonged and there were delays. However, we accepted the respondent’s explanation for why it took longer than under the policy. Any delays were not unnecessary. The grievance itself was complex and the grievance was dealt with reasonably. It was investigated by Mr Crook who provided a detailed outcome. Similarly, Mr Hawkins dealt with the appeal thoroughly providing a detailed outcome.

309.4 The outcome to the third grievance also took slightly longer than the policy specified. Again, it required investigation and the claimant wanted it all conducted by correspondence. Any delay was explicable and reasonable.

309.5 Overall the claimant’s grievances were dealt with reasonably. To the extent there were delays, we accepted there were good reasons for these and any failure to deal with the grievances promptly was not so serious as to amount to a fundamental breach of contract.

[310]With regards to the implied terms of trust and confidence, the claimant has not set out specifically what it is she says the respondent did that was conduct that was likely to destroy mutual trust and confidence. Considering the matters that the claimant has complained about in this case we have not been able to identify anything which the respondent did which was conduct that was likely to destroy mutual trust and confidence. Looking at events from early 2019 until the claimant’s resignation we concluded as310.1 After the claimant was signed off work the respondent reviewed the situation regularly seeking Occupational Health advice. When the claimant raised a grievance it was dealt with reasonably.

310.2 When the claimant said she was ready to return to work the respondent followed Occupational Health advice and put in place numerous adjustments. This included making arrangements for the claimant to work for Ms Arthur to ensure she was no longer working with Mr Nikolov. This was in accordance with her preference and had not been recommended by Occupational Health. Neither was it a specified outcome from the grievance.

310.3 Ms Arthur remained in constant contact with the claimant on her return to work. She arranged for an extended phased return on full pay, even though this was not something that the claimant was entitled to under her contract or any policy of the respondent.

310.4 When the claimant’s health deteriorated and Occupational Health advised the claimant was not fit to work Ms Arthur did tell the claimant to remain off work. This was not forced on the claimant and it was not a suspension. It was a decision made in accordance with the medical advice and done out of concern for the claimant. The respondent continued to pay the claimant in full until 14 February 2020 even though her entitlement to company sick pay had expired.

310.5 The respondent investigated her second grievance and the appeal thoroughly and provided a detailed outcome. There were delays but we have found there were good reasons for these, i.e. any failing in this respect was with reasonable and proper cause.

310.6 The respondent supported the claimant with her application to BIPS. It also continued to pay the claimant 65% of her normal pay, even though by this point she had no contractual entitlement to pay beyond Statutory Sick Pay.

310.7 More generally the respondent continued to provide support to the claimant throughout 2020. We also note in this respect that despite the claimant’s lengthy absence the respondent did not appear to start any formal absence management procedures or put pressure on the claimant.

310.8 The respondent informed the claimant that she would be paid at 65% until the end of December 2020 and then she would receive no more sick pay. The claimant’s entitlement to sick pay had ceased many months before and she was given reasonable notice of the change.

[311]When looked at as a whole we conclude that the respondent’s conduct could not be viewed as conduct likely to destroy mutual trust and confidence. On the contrary, we find the respondent treated the claimant very well from March 2019 up until her resignation. In many respects the respondent went beyond what was required in the way it treated the claimant, such as paying her ta 65% of her normal pay for the entirety of 2020. Overall the respondent was supportive to the the claimant. Any potential failings by the respondent, such as some delays with the grievance processes, were not serious and explicable. There are no specific incidents that occurred that detract from this conclusion.

[312]We conclude that the claimant has not shown that the respondent acted in such a way that was likely to destroy mutual trust and confidence. There was no breach of contract by the respondent in this respect.

[313]Finally, we have considered the claimant’s allegation that the respondent failed to provide a safe place of work. It is not clear what the claimant is specifically saying the respondent did or failed to do that breached this implied term. The claimant was signed off work initially in 2019 and then from January 2020 with anxiety and depression which was attributed to her difficulties at work. However, within the factual background we have considered there is nothing which we can identify that the workplace was unsafe. We repeat our findings set out above that the respondent was supportive towards the claimant and when she returned to work it made all the adjustments that had been recommended by Occupational Health. The claimant has not shown that the respondent failed to provide a safe place of work.

[314]In conclusion, the claimant has not shown that the respondent breached her contract of employment. Therefore her claim that she was constructively dismissed does not succeed. Time Limits

[315]All the claimant’s claims do not succeed based on our findings of fact of what occurred. Therefore we do not also need to consider whether or not any were out of time.