Mrs S Reeve v Barking Havering and Redbridge University Hospitals NHS Trust: 3204918/2021 and 3204751/2022

EMPLOYMENT TRIBUNALS

Case No 3204918/2021, 3204751/2022

Between

Mrs S ReeveClaimant

Barking Havering and Redbridge University Hospitals NHS TrustRespondent

Before

Employment Judge Travers

Ms S Crawshay-Williams (instructed by Counsel) for respondent

Date 6 October 2025

JUDGMENT

[1]The claim of victimisation is dismissed upon withdrawal at the hearing.

[2]The claim under case number 3204918/2021 in respect of arrears of pay is dismissed insofar as it relates to the period up to April 2020. The claim was presented out of time and the statutory ground for extending the time for presentation of the claim is not satisfied.

[1]dismissed upon withdrawal. All of the Claimant’s claims of indirect disability discrimination are

[2]All of the Claimant’s claims of indirect age discrimination are dismissed upon withdrawal.

[3]The claims in boxes 5 and 6 (only) in the “Reasonable Adjustments” section of her Scott Schedule sent to the Tribunal on 10 May 2023 (“the Scott Schedule”) are dismissed upon withdrawal.

[4]The direct age and direct disability discrimination claims in boxes 18 and 19 in the Scott Schedule are struck out on the basis they have no reasonable prospect of success.

[5]The harassment related to age and harassment related to disability claims in box 13 in the Scott Schedule are struck out on the basis they have no reasonable prospect of success.

[6]The direct age discrimination allegations in boxes 17, 20, 21, 22, 23, 24, 25 and 26 of the Scott Schedule have no reasonable prospects of success are struck out. For the avoidance of doubt, the direct disability discrimination claims are not.

[7]The harassment related to age allegations in boxes 5, 10, 11 and 12 of the Scott Schedule have no reasonable prospects of success and are struck out. For the avoidance of doubt, the harassment related to disability claims are not.

[8]The s15 claims set out in boxes 4 and 6 under the heading “Discrimination Arising from Disability” have no reasonable prospects of success and are struck out.

REASONS

[1]This a complex case which has had a long procedural history, as set out more fully in the Case Management Summary accompanying the Case Management Orders I have made following the Preliminary Hearing.

[2]At the Preliminary Hearing, the Indirect Discrimination claims were withdrawn and have been dismissed, as were the claims of a failure to make reasonable adjustments set out in boxes 5 and 6 of the Claimant’s Scott Schedule.

[3]Once the claim had been clarified and applications to amend made, the Respondent pursued its application to strike out and/or for deposit orders. DISCRIMINATION CLAIMS

[4]The Respondent made a written application to strike out and alternatively for a deposit order by email dated 8 May 2023. It averred that any discriminatory act which occurred wholly before 24 March 2021 was out of time and should be struck out because(a) there was no reasonable prospect of it being established that it formed part of a continuing act and

(b) there was no reasonable prospect of the Claimant establishing that it was just and equitable to extend time.

[5]Ms Crawshay-Williams refined and narrowed that ambitious application at the hearing. She did not allege that every single act which predated 24 March 2021 ought to be struck out (or a deposit order made) but rather alleged that those allegations which named Mrs Karemo, Mrs Halford and Ms Blackabee as the person responsible ought to be because the allegations against them were out of time and a contention that those acts formed part of a continuing act with an “in time” acts committed by someone else had no or little reasonable prospect of success.

[6]The Claimant, an Administrative & Clerical Assistance, worked in different departments under different managers throughout her time with the Respondent as follows:6.1 June September 17 – March 2019 in the Employee Relations team;

6.2 March 2019 – April 2020 in the Education and Training Team when Mrs Karemo was responsible for her secondment;

6.3 April – November 2020, when she worked as a PA to Mrs Halford, the Chief Nurse / Deputy CEO;

6.4 November 2020 – 28 July 2021: the Claimant worked in the Patient Experience Team under Mrs Miles Gales.

[7]Ms Crawshay-Williams submitted the allegations of direct age and disability discrimination set out in the agreed updated Scott Schedule that ought to be struck out were:7.1 Allegations 17, 20, 21, 22, 23, 24, 25 and 26 levelled against Mrs Halford. These are allegations of direct age and disability discrimination (except allegation 26 which is only age) spanning the period August 2019 - 23 November 2020;7.1.1 17: accused her of not putting a link in a calendar for a meeting – 17 September 2020;

7.1.2 20: didn’t sign a birthday card for the Claimant – 3 November 2020;

7.1.3 21: created a role for Mrs Blackabee without notice to the Claimant – 20 November 2020

7.1.4 22: moved the Claimant to cover a Band 5 and 6 role but she only got paid for a Band 5 role – 23 November 2020;

7.1.5 23: criticised the Claimant over a missing diary entry – 9 November

7.1.6 24: gave a project to Mrs Blackabee because she said the Claimant was underperforming – 17 November 2020

7.1.7 25: told the Claimant she was overqualified for the PA role, did not help the Claimant – August 19

7.1.8 26: paid the Claimant less than Mrs Blackabee and did not give her any career progression – July 19

7.2 Allegations 18-19 are levelled against Mrs Karemo. These are allegations of direct age and disability discrimination on 6 July 2020, 9 and 14 October 2020:7.2.1 18: failed to engage with the Claimant or reply to her emails – 9 October

7.2.2 19: walked away and refused to engage with the Claimant on several occasions or provide information about annual leave, 6 July 2020 and 14 October 2020.

[8]Ms Crawshay-Williams submitted the allegations of harassment set out in the agreed updated Scott Schedule that ought to be struck out were:8.1 Allegations 5, 10, 11 and 12 levelled against Mrs Halford. These are allegations of harassment related to age and disability spanning the period 29 May 2020 – 29 October 2020;8.1.1 5: sent an email to the Claimant accusing her of not following instructions – 29 May 2020;

8.1.2 10: blamed the Claimant for a meeting not being correctly recorded in her diary – 29 October 2020;

8.1.3 11: shouted at the Claimant accusing her of not putting a meeting link in her calendar;

8.1.4 12: told the Claimant to phone an organisation to find who someone was.

8.2 Allegation 13 is levelled against Mrs Blackabee. This is an allegation of harassment related to age and disability relating to an incident on 17 November 2020 when Mrs Blackabee is said to have given the Claimant information causing her to become distressed as she had to prepare for a meeting at short notice.

[9]Ms Crawshay-Williams accepted that, unlike Mrs Karemo and Mrs Blackabee, Mrs Halford was mentioned in the Scott Schedule in relation to two harassment allegations dated after 24 March 2021 (thus potentially in time):9.1 Allegation 2: “Five senior management staff held a meeting to discuss C” on 23 April 2021. This is said to be harassment related to age and disability. The Claimant refers back to paragraph 35 of the Particulars of Claim. The Respondent made the point that Mrs Halford is not in fact mentioned in paragraph 35. At the time of this meeting, the Claimant was being managed by Mrs Miles-Gale. Mrs Halford is said to have been involved because she was the Chief Nurse. Other than holding a meeting, no specific allegation is made in the Scott Schedule though at paragraph 35 of the Particulars, the allegation is that those in the meeting did not consider the Claimant had mental health problems and needed support at work;

9.2 Allegation 14: “The Claimant made a grievance against management and later on the same day she received a letter stating she was not performing at work”. Ms Crawshay-Williams submitted, and the Claimant accepted, that Mrs Halford was the subject of the grievance and that it was Mrs Miles-Gale who sent her the letter about her performance. As such, this is not in fact an allegation about Mrs Halford’s conduct after 24 March 2021.

[10]Ms Crawshay-Williams then turned her attention to the Section 15 Equality Act 2010 claim and submitted the following allegations had no or little reasonable prospects of success because they were out of time:10.1 Allegation 4: An allegation that Mrs Karemo did not give the Claimant a permanent role on 18 February 2019;

10.2 Allegation 6: An allegation that Mr Wishart told the Claimant she could not cover part of her role and lead on job evaluation which dates from the end of 2018.

[11]Ms Crawshay-Williams accepted that Mrs Halford was mentioned as responsible for an in time act after 24 March 2021 in allegation 5. This is an allegation that Mr Wishart told the Claimant that Mrs Halford would give her six months money to leave the Respondent. This is said to have happened on 13 May 2021. The Respondent submitted:11.1 This is an allegation of s15 discrimination, it is very different to the substance of the claims of direct discrimination and harassment;

11.2 The allegation is of a different factual nature to the other allegations because it relates to offering an inducement to the Claimant to leave the organisation;

11.3 The thrust of this complaint is against Mr Wishart. The same allegation is made in Harassment – Allegation 3 and Direct Discrimination – Allegation 7 and only Mr Wishart is mentioned, not Mrs Halford.

[12]In summary Ms Crawshay-Williams submitted that12.1 the Claimant’s allegations were made against many individuals over a long timeframe and related to a range of different subject matters. The claims levelled against Mrs Blackabee, Mrs Karemo and Mrs Halford were out of time and could not sensibly be said to be part of a continuing act;

12.2 As to whether there was an arguable case for a just and equitable extension, the claims could have been brought much earlier. The Particulars of Claim were lengthy and contained a lot of dates suggesting contemporaneous records were made at the time. The Claimant only started a period of sickness absence in July 21 and was able to work before then and could have lodged a claim. Her email sent the day before the hearing (paragraph 17b) suggested she had spoken to others about discrimination and bullying and could have got advice and proceeded with a claim before she did. She has benefited from union representation and could have made enquiries about bringing a claim. The balance of prejudice favoured the Respondent because even if these allegations were not permitted to proceed, it would not be end of the Claimant’s claims, she had a long list of claims that would continue. Only the historic allegations would be lost. However, the prejudice to the Respondent was significant if the allegations proceed. It will have to call additional witnesses to deal with historic allegations that are out of time and in circumstances where memories are likely to have faded. The hearing length will increase placing an additional burden on both parties.

[13]Ms Pankowski on behalf of the Claimant submitted that:13.1 All acts of discrimination form part of a continuing act. The fact the Claimant had lodged a grievance naming all the managers she worked for supported that contention. She worked under each without a break in between;

13.2 The Claimant’s position is that all of those against whom allegations are fall under the umbrella of Corporate Nursing and that they were essentially one team, evidenced by the fact there was a meeting of senior managers on 23 April 2021 which included Mrs Miles-Gales and Mrs Halford (though not Mrs Blackabee or Mrs Karemo;

13.3 There was an “in time” complaint against Mrs Halford, namely that she gave instructions to Mr Wishart to offer the Claimant 6 months to leave the organisation, as is set out in paragraph 45 of the Particulars of Claim;

13.4 Even though she was managed by Mrs Miles Gales latterly, she believed all those involved talked to each other and made decisions together;

13.5 Mrs Halford was at the meeting on 23 April. The Claimant accepts she ought to have mentioned that in the Particulars of Claim. I have given her permission to amend to do so.

13.6 If out of time, it would be just and equitable to extend time. This was on the basis that there would be (unspecified) prejudice to the Claimant if the claims were not permitted to proceed but no prejudice to the Respondent because it was aware of her claims. All of the circumstances had to be factored in, including that she had evidence to support her claim, though that was not identified at this stage. The Law Time Limits

[14]The time limit provisions are contained in s123 of the Equality Act 2010: ‘123 Time limits (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of – (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something – (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[15]The leading case on the meaning of “act extending over a period” is still Commissioner of Police of the Metropolis v Hendricks

[2003] ICR 530

. The test is not whether the employer operated a policy, practice or regime. The focus should be on the substance of the complaint and the issue is whether there was an ongoing situation or continuing state of affairs amounting to an act extending over a period as distinct from a succession of isolated or specific acts.

[16]The question of whether a continuing act can include acts of discrimination of a different kind was considered in Robinson v Royal Surrey County Hospital NHS Foundation Trust

UKEAT/0311/14/MC

. At paragraph 65 HHJ Eady (as she was) held: ‘When considering whether a Claimant has made out a prima facie case that that of which she complains amounts to conduct extending over a period, however, I can allow that it might be appropriate to consider that conduct as comprised of acts that, taken individually, fall under different headings. Such an assessment will inevitably be fact and case specific, but if the Claimant was, for example, complaining that putting her on particular shifts was a continuing act of direct discrimination and then, as the other side of that particular coin, that failing to put her on different shifts was a failure to make reasonable adjustments, I cannot see why she would not be entitled to say that those matters should be considered together as constituting conduct extending over a period.’

[17]If any claim has been presented after the primary time limit imposed by s123(1)(a) then the tribunal cannot entertain the complaint unless it is just and equitable to do so.

[18]The general rule is that employment tribunal time limits are strictly enforced and the ET should ask whether a sufficient case has been made out to justify exercising what is a discretion in favour of an extension of time. It is not a question of extending time unless there is a good reason for not doing so (see Robertson v Bexley Community Centre

[2003] EWCA Civ. 576

[19]However, there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. There are statutory time limit which will shut out an otherwise valid claim “unless the claimant can displace them”– see Chief Constable of Lincolnshire Police v Caston

[2010] IRLR 327

, paragraph 31.

[20]The factors set out in s33 of the Limitation Act 1980 are relevant to the assessment of what is just and equitable; per Smith J in British Coal Corporation v. Keeble

(1997) IRLR 336

, §8. They are not however a checklist that needs to be specifically itemised in the judgment (see Adedeji v University Hospitals Birmingham NHS Foundation

[2021] EWCA Civ. 23

per Underhill LJ at paragraph 37.

[21]The factors a Tribunal can take into account can be many and varied but will often include the reason for the delay, whether the claimant was aware of her rights, whether she has had advice, whether the claimant was unable to bring proceedings due to ill health, the length of the extension sought and whether a fair trial remains possible.

[22]Whether there is a good reason for the delay or indeed any reason is not determinative but is a material factor Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

, CA.

[23]The Tribunal must consider the relative prejudice to each party Pathan v South London Islamic Centre EAT 0312/13.

[24]In Miller v MoJ and Thompson v MoJ

UKEAT/0003/15/LA

UKEAT/0004/15/LA

, Laing J in the EAT held that if there was forensic prejudice to the respondent, that may be “crucially relevant”. However, the converse is not necessarily true so that if there is no forensic prejudice, that is not decisive and “may not be relevant at all”.

[25]In Kumari v Greater Manchester Mental Health NHS Foundation Trust

[2022] EAT 132

, the EAT held ‘The tribunal is therefore not necessarily always obliged, when considering just and equitable extension of time, to abjure any consideration of the merits at all, and effectively to place the onus on the respondent, if time is extended, thereafter to apply for strike-out or deposit orders if it so wishes. It is permissible, in an appropriate case, to take account of its assessment of the merits at large, provided that it does so with appropriate care, and that it identifies sound particular reasons or features that properly support its assessment, based on the information and material that is before it. It must always keep in mind that it does not have all the evidence, particularly where the claim is of discrimination. The points relied upon by the tribunal should also be reasonably identifiable and apparent from the available material, as it cannot carry out a mini-trial, or become drawn into a complex analysis which it is not equipped to perform.’ Strike Out/Deposit Order

[26]The Tribunal has the power to strike out a claim if it has no reasonable prospect of success (Rule 37(a) of Schedule 1, Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 - “The Rules”). If the Tribunal considers that an allegation or argument has little reasonable prospect of success, it can make a deposit order (Rule 39).

[27]In Tayside Public Transport Company Ltd (t/a Travel Dundee) v Reilly

[2012] IRLR 755

, an unfair dismissal case, the Court of Session held, at paragraph 30: Counsel are agreed that the power conferred by Rule 18(7)(b) may be exercised only in rare circumstances. It has been described as draconian (Balls v Downham Market High School and College

[2011] IRLR 217

, at para 4 (EAT)). In almost every case the decision in an unfair dismissal claim is fact-sensitive. Therefore where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the Tribunal to conduct an impromptu trial of the facts (ED & F Mann Liquid Products Ltd v Patel (2003) CP Rep 51, Potter LJ at para 10).

[28]Particular care is needed in discrimination claims. They are certainly fact sensitive and often oral evidence is required before concluding whether or not it is appropriate to draw inferences of discrimination from primary facts, Anyanwu v South Bank Students' Union

[2001] IRLR 305

, HL.

[29]In Balls v Downham Market High School

[2011] IRLR 217

Lady Smith emphasised that test is not whether the claim is likely to fail but whether there are no reasonable prospects of success. That is not the same thing as there being no prospects of success at all, per North Glamorgan NHS Trust v Ezsias

[2007] IRLR 603

at para 25.

[30]At the strike out stage, the Tribunal should take a Claimant’s pleaded case at its highest where there are matters of factual dispute, unless there is a compelling reason not to do so (see e.g. Roy v Stephenson Harwood Services Ltd EAT 0145/17).

[31]In Hawkins v Atex Group

[2012] IRLR 807

however, Underhill P cautioned against excessive restraint in relation to striking out claims: “…judges should not be shy of making robust decisions in cases where there is realistically only one possible outcome even if the issue is formally one of fact”.

[32]In Ahir v British Airways Plc

[2017] EWCA Civ. 1392

Underhill LJ held at paragraph 16: “…Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context.

[33]A case may have some reasonable prospects when regard is had to the overall picture and all allegations taken together so care has to be taken not to focus on individual factual allegations, see Qureshi v Victoria University of Manchester

[2001] ICR 863

[34]It is not a relevant factor when determining a strike-out application that the relevant facts for the claim would have to be heard in any event (ABN AMRO Management Services Ltd v Hogben

UKEAT/0266/09

per Underhill LJ at [16]).

[35]In E v X, L and Z,

UKEAT/0079/20

the EAT held that where the issue on a strike out application is whether or not the alleged discrimination formed part of an act extending over a period, the test at summary stage is whether the claimant has established “a prima facie case” or “a reasonably arguable basis for the contention that the various acts are so linked as to be continuing acts, or to constitute an ongoing state of affairs”. If not, the relevant allegations can be struck out. If so, the question of time limits and continuing acts is not definitively resolved but is deferred to the final hearing. Ellenbogen J set out 13 points that could be distilled from the authorities at paragraph 50 which I have regard to. The following paragraphs are of particular relevance here: “…2) It is appropriate to consider the way in which a claimant puts his or her case and, in particular, whether there is said to be a link between the acts of which complaint is made. The fact that the alleged acts in question may be framed as different species of discrimination (and harassment) is immaterial: Robinson ; 3) Nonetheless, it is not essential that a positive assertion that the claimant is complaining of a continuing discriminatory state of affairs be explicitly stated, either in the claim form, or in the list of issues. Such a contention may become apparent from evidence or submissions made, once a time point is taken against the claimant: Sridhar;… 5) When faced with a strike-out application arising from a time point, the test which a tribunal must apply is whether the claimant has established a prima facie case, in which connection it may be advisable for oral evidence to be called. It will be a finding of fact for the tribunal as to whether one act leads to another, in any particular case: Lyfar; 6) An alternative framing of the test to be applied on a strike-out application is whether the claimant has established a reasonably arguable basis for the contention that the various acts are so linked as to be continuing acts, or to constitute an on-going state of affairs: Aziz ; Sridhar ; 7) The fact that different individuals may have been involved in the various acts of which complaint is made is a relevant, but not conclusive, factor: Aziz;… 9) A tribunal hearing a strike-out application should view the claimant's case, at its highest, critically, including by considering whether any aspect of that case is innately implausible for any reason: Robinson and paragraph 47 above; 13) …caution should be exercised, having regard to the difficulty of disentangling time points relating to individual complaints from other complaints and issues in the case; the fact that there may make no appreciable saving of preparation or hearing time, in any event, if episodes that could be potentially severed as out of time are, in any case, relied upon as background more recent complaints; the acute fact-sensitivity of discrimination claims and the high strike-out threshold; and the need for evidence to be prepared, and facts found (unless agreed), in order to make a definitive determination of such an issue: Caterham Application to the Facts

[36]The Claimant worked in a number of different roles during her time with the Respondent under different managers.

[37]The only claims where Mrs Karemo is alleged to be responsible for the discrimination are in relation to acts that occurred a long time before the Claim Form was lodged, on 18 February 2019 (the s15 claim) and on 6 July 2020 and 9 and 14 October 2020. The former is a complaint about not giving the Claimant a permanent role but a temporary one only. The latter are complaints of failing to engage with the Claimant or reply to her. There are no in time allegations made against Mrs Karemo. Although different individuals can be responsible for different acts forming part of a continuing act, there is scant basis for such a finding here.

[38]The Claimant avers the fact she worked for the different managers without a break suggests there was a continuing act. That does not follow. In any event, there are gaps between the different acts relied upon. The fact that all of these different departments may fall under the umbrella of Corporate Nursing is also not good evidence of a continuing act. The Claimant said it was her belief that all the managers talked and made decisions together but that is neither pleaded nor has she adduced any evidence of it, nor would it seem remotely likely for the acts of discrimination she has pleaded. For example, it is highly unlikely that Mrs Karemo acted in concert with other more senior managers or other managers generally when she is alleged to have walked away from the Claimant or refused to engage with the Claimant about annual leave. There is certainly no evidence or pleaded case that she did. Such a claim is speculative at best.

[39]The subject matter of the allegations against Mrs Karemo differs from those made in time against others too.

[40]The Claimant has not adduced any evidence or cogent argument in support of a contention that she has a reasonable prospect of establishing the claims against Mrs Karemo are in time or that it is just and equitable to extend time to the extent required. She relies on general unspecified prejudice in circumstances where the prejudice to the Respondent of allowing it to face further historical claims is greater. I conclude that the claims have no reasonable prospect of success and I strike out all direct discrimination claims in boxes 18 and 19 and the s15 claim in box 4.

[41]The same is true for the claims against Mrs Blackabee. The last allegation made against her is dated 17 November 2020. The subject matter of this allegation is different from the other in time allegations against others, namely that she provided her with information that caused her to become distressed. There is no basis think there is any prospect of the Claimant establishing Mrs Blackabee was acting in concert or at the behest of others, as the Claimant appears to believe.

[42]There is no reasonable prospect of the Claimant being able to establish this formed part of a continuing act in the Hendricks sense and no reasonable prospect of establishing that is just and equitable to extend time. I therefore strike out the harassment related to age and disability claims in box 13.

[43]Similar applies to the s15 claim in box 6, the allegation that Mr Wishart told her she could not cover part of her role and lead on job evaluation. This is an allegation that dates from the end of 2018. Mr Wishart is mentioned later on but in the context of relaying information from others (e.g. Harassment claims 3 and 4). This allegation is a long time before any of the later allegations in any event and the subject matter is again different. It also appears inconsistent with her claims later that she had too much work and was unable to cope. This is an allegation she ought to be allowed to lead on job evaluation. I conclude there is no reasonable prospect of this being found to be part of a continuing act and therefore strike out the s15 claim in box 6.

[44]The allegations against Mrs Halford are more difficult. The direct discrimination and harassment allegations against her generally date from the time when the Claimant was her PA are prima facie all out of time. They relate to Mrs Halford’s treatment of her as a line manager and include allegations about her being unfairly critical of her work, not signing a birthday card but also include allegations about treating her differently to others in relation to pay and opportunities for progression.

[45]The strike out application is not premised on the merits of these allegations but on them being out of time. I must take the Claimant’s case at its highest for the purposes of this application.

[46]The difference between Mrs Halford’s position and that of Mrs Karemo and Mrs Blackabee is that there are some in time allegations for which she is said to be responsible, namely:46.1 Attending a meeting on 23 April to discuss the Claimant at which, no doubt, Mrs Halford would have been the most senior employee, and at which the Claimant’s mental health problems were allegedly overlooked, as was her need for support. This is pleaded as harassment related to disability and age. Mrs Halford would have been attending not as the Claimant’s line manager but in her capacity as Chief Nurse. It is connected in the sense it would tend to show, if proven, a continuation of a dismissive and unsympathetic attitude to the Claimant’s disability and an unwillingness to make allowances for it. It does not appear to have anything to do with age though;

46.2 The allegation that she was behind an offer to leave the Respondent with a payment in May 2021. Although it was Mr Wishart who relayed it, the Claimant’s case is that the driver or originator was Mrs Halford. This is pleaded as a different type of discrimination – s15 – though that does not mean it cannot form a continuing act with other alleged acts of discrimination of a different type and of course, s15 is a form of disability discrimination. Factually, it is a different type of allegation, a suggestion that in her capacity as Chief Nurse (rather than line manager) she was taking steps to engineer the Claimant’s departure. The other allegations are, as set out above, are about her line management. Nevertheless, at its highest, it might be said to be sufficiently connected to her earlier actions which are said to be unlawful because of or related to disability. If she sought to exit the claimant because of something arising from disability (as I must assume at this stage) that could be sufficiently connected to harassment or direct discrimination when she was her line manager 6+ months earlier.

[47]The fact the Claimant named Mrs Halford in a grievance does not assist the Claimant because the focus as to be on the acts of the alleged discriminator, not the Claimant’s complaints about the same.

[48]The Claimant’s argument that Mrs Halford had some role to play in the later events involving Mrs Miles-Gales, though these are not alleged to be joint decisions, may have more force by reason of the fact she is alleged to be up the direct management chain from Mrs Miles-Gales and, on the Claimant’s case, attended the meeting on 23 April demonstrating some continuing involvement in the management of the Claimant even at this time.

[49]Mrs Halford’s involvement is more recent than that of Mrs Karemo and Mrs Blackabee, though is still significantly out of time apart from the two acts alleged to be in time. Indeed, there is a gap of 5 months between the alleged acts in November 2020 and 23 April 2021.

[50]Mindful that I have to take the Claimant’s case at its highest, whilst I have real doubts that she will be able to establish a continuing act even if the in time allegations are found to be discriminatory (about which I make no assessment at this stage), I cannot conclude at this stage the direct disability and disability related harassment claims naming Mrs Halford have no or little reasonable prospect of success.

[51]I am persuaded however that the direct age discrimination and harassment related to age claims against Mrs Halford have no reasonable prospect of success on time grounds. Age appears to have nothing whatsoever to do with the in-time acts Mrs Halford is alleged to be responsible for. The meeting in April is criticised for failing to take into account the Claimant’s mental health and the offer of money to leave is said to be related to something arising in consequence of her disability, not her age. There is no apparent link between any earlier alleged acts and the later acts on age grounds. I therefore strike out the direct age discrimination claims in boxes 17, 20, 21, 22, 23, 24, 25 and 26 and the age related harassment claims in boxes 5,10,11 and 12 on the basis they have no reasonable prospect of success. CONSTRUCTIVE DISMISSAL

[52]By way of a second Claim Form in Case Number 3204751/2022, the Claimant brought claims of constructive unfair dismissal and wrongful dismissal (notice pay). The Claimant resigned on 1 July 2022.

[53]At a Preliminary Hearing on 7 December 2022 in front of Employment Judge Ross, as set out in paragraph 47 of the Case Management Order of the same date, the Claimant confirmed that she relied upon the implied term of mutual trust and confidence and that the last straw she relied upon was the grievance outcome letter she received on 26 November 2021. The incidents she relied on before that date leading up to the last straw were the alleged incidents of discrimination set out in the Scott Schedule. As such, the latest date for the breach of contract was 26 November 2021.

[54]The Respondent applies to strike out the claim of constructive unfair dismissal and the claim for notice pay, or seeks a deposit order for the same, on the basis that the resignation did not occur for some seven months after the alleged final straw and as such the Claimant had obviously affirmed the contract and lost any right she may have had, which the Respondent denies, to treat herself as constructively dismissed. The Respondent avers that the Claimant accepted any breach and affirmed the contract by remaining in employment for so long.

[55]The Claimant was on sick leave from July 2021 and did not return to work before her resignation in July 22. The Respondent accepts that being on sick leave can be a pointer against affirmation, for example if the claimant was unable to make a decision, but in this case there was a prolonged delay and she was well able to make a decision. Indeed, she was conducting litigation against the Respondent in that period because her first claim was filed on 30 June 2021 before she went off sick. On 10 September 2021 she provided further and better particulars of claim. A detailed Schedule of Loss was served, seemingly with some assistance, on 14 December 2021. There was a PH on 20 December 2021 at which the Claimant was accompanied by Ms Pankowski and there was no suggestion that sickness prevented her giving instructions.

[56]The Claimant continued to receive sick pay throughout that period of time and the Respondent says evidences affirmation.

[57]In response, the Claimant pointed out that she appealed the grievance outcome in December 2021, which suggests she was not accepting the outcome or affirming the contract. The grievance appeal hearing was not until 4 February 2022 and the outcome was not received by her until 22 March 2022. Thereafter, she said she wanted to stay in work and was trying to resolve matters via her union representative who was in discussions with the Respondent’s management. It was only when the Respondent made it clear that was not going to work, and instead convened formal meeting to dismiss her, that she realised there was no prospect of a negotiated return and resigned.

[58]In other words, she did not accept the earlier breaches and appealed against the grievance finding. After the appeal she did not simply carry on working or receiving sick pay but rather there was an on-going dialogue to resolve the situation. Only when that broke down did she resign. I have not seen any evidence about the dialogue however.

[59]Ms Pankowski said at one stage that 22 November was the beginning of the breach. However, that runs contrary to the case which was put, agreed and finalised before Employment Judge Ross on 7 December 2022 and upon which this application was made and is considered.

The Law

[60]I have set out the law on strike out / deposit above.

[61]In order to succeed in the claim for constructive unfair dismissal, the Claimant must first prove she was dismissed. Thus, she must prove the Respondent committed a fundamental breach of contract, that she resigned in response to that breach and that she did not affirm any breach by delay or otherwise (Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

). Per Lord Denning MR, the employee “must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged”.

[62]Affirmation can be through an act further performing the contract, unless there is a protestation, reservation of rights or provision of a chance to remedy: If the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation: Farnworth Finance Facilities Ltd. v. Attryde [1970] 1 W.L.R. 1053.”

[63]Tribunals should bear in mind that there can be a lot of pressure on employees when there has been a repudiatory breach. Per Jacob LJ in Bournemouth University Higher Education Corpn v Buckland

[2010] ICR 908

: When an employer commits a repudiatory breach there is naturally enormous pressure put on the employee. If he or she just ups and goes they have no job and the uncomfortable prospect of having to claim damages and unfair dismissal. If he or she stays there is a risk that they will be taken to have affirmed. Ideally a wronged employee who stays on for a bit whilst he or she considered their position would say so expressly. But even that would be difficult and it is not realistic to suppose it will happen very often. For that reason the law looks carefully at the facts before deciding whether there has really been an affirmation.

[64]However, there comes a point when the employee was act. In WE Cox Toner (International) Ltd v Crook

[1981] ICR 823

, the claimant was accused of misconduct by his fellow directors and was threatened with dismissal. There then followed 6 months of protracted correspondence about it. The allegations were not withdrawn. A month thereafter, the claimant resigned. A tribunal upheld the complaint finding no affirmation because he did not accept the position but protested about it until it became clear the respondent would not alter its position. The EAT disagreed. The delay had persisted for 7 months during which the claimant continued working and was paid. Even if it was arguable he was working under protest for 6 months, he delayed a further month after the position had been made clear and that was fatal. Application to the Facts

[65]There is a period of more than 7 months following the last straw relied upon by the Claimant through to her resignation. Although she appealed the grievance outcome, the appeal had concluded by 22 March 2022. It was 3 more months before the Claimant resigned.

[66]Although she was off sick during this period, she was clearly able to litigate and did so. She does not rely on sickness as a reason for failing to resign.

[67]Rather, she says there were discussions going on between her union and management to try to resolve the issue. No detailed in her pleadings or evidence has been adduced in relation to those discussions. She has not provided any detail about the content was nor their timing. Although I have to take her case at its highest, it is far from clear what the detail of her case actually is on why it was she did not resign between 22 March and 1 July, other than the fact she hoped to resolve matters by negotiations and when it became clear that was not possible and she was threatened with dismissal, she resigned.

[68]Taking her case again at its highest, I cannot say it has no reasonable prospect of success. It may possibly that a delay 7 months post breach given what was going on did not constitute affirmation. However, in my judgment, her claim does have little reasonable prospect of success and so the threshold criterion for making a deposit order is satisfied. The period is a lengthy one. She continued to receive sick pay and remained long after the grievance appeal was dismissed. There may be have negotiations thereafter but there appears little prospect of that being found to be a good reason to delay so long.

[69]I must still consider whether it is appropriate to make such an order, there being a two stage test, emphasised by Eady P in Rojha v Zinc Media Group plc

[2023] EAT 39

. I have considered whether to make such an order and considered the Claimant’s means and have set out the conclusions in the private Case Management Summary and Order.

Introduction

[70]The Claimant applied for and was appointed to the role of Project Support Officer/PA. She agreed to take this role as a 12 month secondment. The Claimant was permitted to carry forward the terms agreed in her previous flexible working request.

[71]On 12 December 2019 it is common ground that there was a meeting between the Claimant and Kenye Karemo. In assessing what was discussed at this meeting and more generally we were assisted by looking at the Claimant’s 2019/2020 appraisal. The appraisal document had been initially populated following a meeting on 29 May 2019. Like many such documents it was initially populated by the Claimant’s comments. Material to the matters we must decide is the fact that when asked ‘With regards to your health and wellbeing, is there any support you may need? Has anything changed in the last 12 months?’ the Claimant has responded saying ‘n/a’. In an assessment of the Claimant’s work over the first few months of the secondment Kenye Karemo has assessed the Claimant overall as ‘meeting expectations’. Kenye Karemo identified that the Claimant needed to develop project management skills and process mapping skills. She set out a list of the support and training that she proposed to assist the Claimant acquire those skills including completing a Prince2 Foundation course. The Claimant accepts that she was enrolled in that course. From that document we find that Kenye Karemo was willing to invest in training the Claimant in project management work.

[72]There was a further meeting to discuss the Claimant’s appraisal on 10 December 2019. This was a ‘mid-year review’. The appraisal form anticipated that the employee would be given an ‘indicative rating’. Kenye Karemo gave an overall indicative rating of ‘partially meeting expectations’. She indicated that she needed to meet with the Claimant to discuss her career aspirations for the remaining months of her secondment ‘and beyond’.

[73]During the meeting of 12 December 2019 there was a discussion about the Claimant’s work. Kenye Karemo told us, and we accept, that she had begun to think about her staffing requirements going forward including whether the Claimant’s joint role as a PA/Project manager would continue. She said she had decided that she did not need PA support but that she would recruit a Band 5 Project Officer on a permanent contract. The Claimant’s account of this meeting is found within annotations she has made to contemporaneous documents. She accepts that there was a discussion about what she would do going forwards. That is broadly consistent with what Kenye Karemo says and we accept that the discussion reflected the fact that the fixed term secondment was expected to end.

[74]There were two aspects of the Claimant’s account of the meeting of 12 December which were contentious. Firstly she says that she showed Kenye Karemo an email sent by Val Davis on 18 February 2019 where she says ‘I am aware that Sharon has been informed that the band 5 post that she has been successful in has funding on a permanent basis. Due to this Sharon will be offered a permanent position..’. Kenye Karemo says that she was not shown that e-mail on 12 December 2019. Furthermore she says that she had never suggested that the Claimant’s position was permanent.

[75]A text message exchange between the Claimant and an individual called Michael took place on 21 January 2019. In this exchange the Claimant asks Michael if he would speak to Kenye Karemo about the possibility of the role she was offered being made permanent. It is quite clear that when the Claimant accepted the role in Kenye Karemo’s team she did so in the basis of a 12 month secondment. A text message exchange between the Claimant and Kenye Karemo on 28 January 2019 confirms that. Furthermore an e-mail exchange between the Claimant and Nicola Ceesay (in HR) confirms that is the basis on which the job was being offered.

[76]We find that the job that was advertised and accepted by the Claimant was always fixed term role. Val Davis’s e-mail appears to be based on what she had been told by others. We find that whist the Claimant had hoped that she might be offered a permanent role she was under no illusions that she had not been. In those circumstances we consider it highly unlikely that she would have brought up the e-mail of 18 February 2019 at the meeting on 12 December 2019. We accept Kenye Karemo’s explanation that she did not. We accept Kanye Karemo’s evidence that it would have been wholly improper to have advertised and recruited for a fixed term role and then informally agreed that the role was permanent without readvertising it.

[77]The Claimant says, and we accept, that during this meeting there was a discussion about a disagreement that the Claimant had with individuals she had been working with on what was called the preceptorship internet page(s).It was clear that there had been some disagreement that had resulted in a meeting between the Claimant and one individual ‘Wale’ which appears to have been arranged to clear up the disagreement. Kenye Karemo says that the cause of this was the Claimant resenting the input of other individuals. It is clear from the Claimant’s annotation of the documents that she perceived the conduct of these other team members as bullying. We do not need to make any findings about who was to blame. What we do find is that the Claimant continued to resent what had happened and for this reason we find it likely that she would have mentioned this to Kenye Karemo a few weeks later.

[78]The Claimant has suggested that this meeting was part of moves by Kenye Karemo to force the Claimant out of her role. She suggests in her annotations that she had been told that she was ‘not capable of doing her job because she was unable to do more than one project at a time because of the menopause and being slightly slower at processing information’. We accept Kenye Karemo’s evidence that she never told the Claimant that she was ‘not capable of doing her job’.

[79]We find that the purposes of the meeting on 12 December 2019 was to discuss the Claimant’s career moving forward. Principally Kenye Karemo wished to explore whether the Claimant wished to specialise in project management. That is what she recorded on the appraisal form. It is consistent with Kenye Karemo’s evidence that she intended to recruit a band 5 project manager at the end of the Claimant’s secondment. We see nothing in this that would support a conclusion that the Claimant was being forced from her role. It had always been understood that that role would end.

[80]The result of the discussion between the Claimant and Kenye Karemo and further discussions in late January 2020 was that Kenye Karemo understood that the Claimant was not keen to return to her substantive post in the Employee Relations. Kenye Karemo agreed to extend the secondment. She needed to obtain permission from Alan Wishart for that and that was obtained. She sent the Claimant a staff change form on 31 January 2020. The Claimant sent Kenye Karemo an e-mail where she said that she understood that it had been agreed that she was going to be offered a permanent position. Kenye Karemo responded on 3 February 2020 and said that that was not the case. She explained that there was no substantive post to offer the Claimant and that if there had been it would need to be advertised. The staff change form was signed by both the Claimant and Kenye Karemo on 7 February 2020. The job title of Project Support Officer/PA remained the same.

[81]Kenye Karemo says that that the offer of 12 months extension had been an error and that Alan Wishart (who was responsible for the Claimant’s substantive post) had only authorised 6 months. It seems that the Claimant was advised of this in February 2020 and decided to escalate this to David Amos the Interim Executive Director of People and Organisational Development. She met with him on 27 February 2020. He then sent an email which confirmed his understanding, and that of Kathryn Halford that the secondment had been extended for 12 months.

[82]It is common ground that on 10 March 2020 Kenye Karemo asked the Claimant to sign an amended Staff change form which extended her secondment for 6 months rather than 12. That caused the Claimant again to escalate the matter to David Amos. She sent a further e-mail where she informed him that she had been ‘forced’ to sign an amended staff change form. She said that the explanation she had been given was that there was ‘not enough money for a 12 month extension’. She proposed speaking to Kathryn Halford. David Amos suggested that this was a good idea.

[83]Kenye Karemo says that her decision to propose amended terms was not dictated by any budgetary restraints but by the fact that secondments were normally limited to 12 months and an extension of any length was exceptional as the substantive post would have been held open. She denied referring to budgetary constraints. We are satisfied that Kenye Karemo’s account of her reasons for asking the Claimant to sign a revised secondment agreement are the reasons she has given us. We therefore accept that there was no reference to budgetary issues. We should say that we think that this was a sloppy process and the Claimant was understandably annoyed.

[84]As we have recorded above Joanne Wingrave resigned on 9 March 2019. The Claimant was interested in applying for the vacancy as Kathryn Halford’s PA. She did not discuss this with Kenye Karemo who only learned of the Claimant’s interest in this role after she was appointed. The Claimant suggests that Kenye Karemo expressed some frustration at this. We find that it is likely that she did. We find that she felt that this was something that should have been discussed with her as the Claimant’s line manager in circumstances where there had been protracted discussions about extending the Claimant’s existing role.

[85]Kenye Karemo gave us an account of her concerns about the Claimant’s work. Like all the other managers we heard from she suggested that the Claimant was very personable and chatty. In common with the other managers she told us that the Claimant did not have a good attention to detail and that she felt that her written work, particularly minutes of meetings, was poor. In the context of the Claimant obtaining the post as Kathryn Halford’s PA, Kenye Karemo told us that had she discussed this with the Claimant she would have warned her that Kathryn Halford was an exacting manager with high standards. The period when the Claimant was Kathryn Halford’s PA

[86]The Claimant worked as the PA to Kathryn Halford from 27 April 2020 until 23 November 2020. She says that in that period Kathryn’s Halfords Conduct gave rise to 6 claims of direct discrimination and four claims of harassment. The Claimant had originally put her case on the relying on age as a protected characteristic. In respect of the complaints levelled against Kathryn Halford the claims of age discrimination and harassment were struck out. None the less the Claimant’s evidence still focussed on that issue. We shall limit our findings on questions of age discrimination to those matters that assist with the other pleaded claims we need to deal with.

[87]When suggesting that Kathryn Halford discriminated because of age the Claimant points to the evidence of the difficulties both she and Joanne Wingrave experienced when working with Kathryn Halford. She then draws a contrast with the experiences of Gemma Blackabee.

[88]In her witness statement Joanne Wingrave set out a brief summary of her career. She has been a PA in many capacities for some years. She was recruited to be Kathryn Halford’s PA after Gemma Blackabee was promoted to a Band 7 role. A temporary employee had held the role for some time but was thought by Kathryn Halford to be unsuitable because she spent time on her mobile telephone. Joanne Wingrave had to interviews the second was with Kathryn Halford who approved her appointment. It follows that Kathryn Halford must have had a very good idea of her age but did not think that that was a bar to offering her employment. In her witness statement Joane Wingrave says: ‘On my first day in the role and my first conversation with Kathryn Halford, she informed me that ‘Gemma Blackabee was the best PA she had ever had’. She goes on to say: ‘I felt offended by that comment. I felt discriminated against on my very first day in the role’. She goes on later in her statement to suggest that the discrimination was against older employees.

[89]The bulk of Janet Wingrave’s statement sets out the difficulties she had working for Kathryn Halford. In summary she says that Kathryn Halford continued to lean on Gemma Blackabee for support in many areas and would continue to sing her praises to Janet Wingrave. It appears that she also had a difficult relationship with Gemma Blackabee which no doubt made this more difficult for her.

[90]There is a considerable body of evidence that supports the suggestion that despite Gemma Blackabee vacating the role as Kathryn Halford’s PA. Kathryn Halford continued to turn to her for assistance meaning that Janet Wingrave and later the Claimant found it extremely difficult to establish themselves in the role. We found Christine Smith’s evidence on this to be particularly compelling. It is clear from the notes she made of meetings both with the Claimant and Kathryn Halford that she felt that history was repeating itself.

[91]Whilst we fully accept that Kathryn Halford’s continued reliance on Gemma Blackabee and the blurred lines of demarcation between her role and that of her PA made it difficult for her PA, we do not accept that this provides any evidence of age discrimination.

[92]The Claimant has placed a great deal of reliance on the views and note of Christine Smith who told the Claimant, and recorded her view, that Kathryn Halford had moulded the younger Gemma Blackabee to her style whereas an older PA with more experience might find it harder to adapt to Kathryn Halford’s way of doing things. This may have been Christine Smith’s impression but it is clearly not the case that Kathryn Halford selected younger PA’s in order that she could mould them. She had a hand in both Janet Wingrave’s recruitment and that of the Claimant. We find that it is likely that Gemma Blackabee had moulded herself to Kathryn Halford’s style. However, that does not mean that when Kathryn Halford sang her praises or continued to place inappropriate reliance upon her that would strongly support an inference that her age was the reason for that as opposed to the fact that Kathryn Halford though her the best PA she had ever had.

[93]In dealing with the issues that arose during the time that the Claimant was Kathryn Halford’s PA it is necessary to put matters into context. Kathryn Halford held a very senior position and had a wide range of responsibilities. It is clear to us that she held herself to very high standards and expected others to do the same. We note that when Gemma Blackabee was promoted Kathryn Halford though that the agency worker who was first recruited as her PA was unsatisfactory. Joanne Wingrave felt unable to continue as Kathryn Halford’s PA and resigned after a short period. We do not need to decide whether Kathryn Halford demanded unreasonably high standards. It is sufficient to say that she expected a high level of service from her PA. We do not consider that surprising given the level of her responsibilities.

[94]The Claimant took up her role at the very outset of the Covid 19 pandemic. Kathryn Halford’s role had been demanding before the pandemic but once it broke out the pressure on her escalated. In her witness statement she gives some indication of the pressures she was under. We accept her account of them and refer to just a few to illustrate the point.

[95]At the outset of the Covid Pandemic Kathryn Halford worked 7 days a week and for long hours each day. She was unable to see her husband who was self-isolating at the family home. She had responsibility for patients who were critically ill with Covid. She was responsible for training addition staff to work in the intensive care unit. She had to support her medical team with the trauma of telling relatives that patients were dying. At the outset she was expected to attend ‘Gold Command’ meetings every 2 hours. Whilst the initial stages were especially challenging other issues emerged when cases of Covid started to increase in September 2020. Simply put, Kathryn Halford had an extremely demanding job in extraordinary times.

[96]As part of the background we need to consider we think it important to note that Kathryn Halford’s evidence which we accept is that she held Gemma Blackabee in very high regard. She thought highly of her work and had encouraged her to take on more responsibility and to take a significant promotion. At the point that the Claimant started work as Kathryn Halford’s PA Gemma Blackabee was still working closely with Kathryn Halford. She was close at hand.

[97]A key part of the Claimant’s role was that she was expected to keep Kathryn Halford’s diary up to date. Had things worked as they should have done she would have been able to maintain the diary from her computer. In the first month of the Claimant’s new role she had constant IT issues. Her computer was ‘rebuilt’ on three occasions. Consequently, she did not have the same view of Kathryn Halford’s diary as Kathryn Halford did. Gemma Blackabee’s role as Business Manager entailed her having access to Kathryn Halford’s diary.

[98]Gemma Blackabee had been a member of the interview panel when the Claimant was interviewed for the role as Kathryn Halford’s PA. She had passed on the view of the panel that the Claimant was suitable for the role. We were shown text messages between the Claimant and Gemma Blackabee. The text messages start at the point in time where Kenye Karemo had asked the Claimant to sign the second staff change form for 6 months instead of 12. The text messages cover a wide range of topics the Claimant discusses her frustration towards Kenye Karemo and the uncertainty about her role. The text messages also discuss matters which are deeply personal. The Claimant informed Gemma Blackabee that she was applying for the role of Kathryn Halford’s PA. There are further messages when she secured a job offer. The responses were very encouraging.

[99]The Claimant has complained that she was not given any induction or handover by Gemma Blackabee. That is a matter touched upon in the text messages. At the point when the Claimant started working as Kathryn Halford’s PA Gemma Blackabee had some serious issues with her health. She shared those with the Claimant and the Claimant was very supportive. At some point after 28 April 2020 (we are unsure of the exact date as the text messages are not all dated) Gemma Blackabee apologised to the Claimant for not sitting with her and ‘gone through it all’. The Claimant’s response is entirely understanding recognising at once that it was Gemma Blackabee’s health issues that had made this impossible.

[100]Throughout the early weeks of the Claimant’s work as a PA there are text messages which show the Claimant and Gemma Blackabee working collaboratively to resolve issues with Katherin Halford’s diary that had arisen due to IT issues with the system the Claimant needed to use. After a period the Claimant expressed some frustration about Kathryn Halford contacting Gemma Blackabee about issues with her diary. The Claimant sent a text to Gemma Blackabee saying: ‘No I don't darling but Kathryn needs to stop this xx I know I have IT issues which is sooo frustrating but she can't keep texting you and then you texting me as we are then doubling up on the work !!’. Shortly after that Gemma Blackabee sent a text to the Claimant saying: ‘i [think] she is coming [t]o me because of the IT issues your having. Happy to have a chat as do not want to step on your toes xxx’.

[101]We find that Gemma Blackabee and the Claimant had a close personal relationship. They were supporting each other with personal issues. Gemma Blackabee was offering encouragement and support to the Claimant who was having extremely frustrating it issues that took a long time to resolve. We find that because of these IT issues Kathryn Halford was often communicating with Gemma Blackabee as well as the Claimant to make sure her diary was kept up to date. The Claimant was becoming resentful of that as it was unclear who was expected to respond to Kathryn Halford’s requests. B5 – Kathryn Halford accusing the Claimant of not following instructions

[102]The Claimant says that on 29 May 2020 she received an e-mail from Kathryn Halford that accused her of not following instructions.

[103]On 29 May 2020 there was a Covid Gold meeting that Kathryn Halford would normally have been expected to attend. She knew that she would not be able to do so and she had asked the Claimant to instruct Gary Etheridge and Lorraine Bess to attend in her place. The Claimant had informed those two individuals that they needed to attend the meeting and had put the meeting in their diaries.

[104]Kathryn Halford says and we accept that she was told that Gary Etheridge and Lorraine Bess had nearly missed the meeting. The Claimant sent a text message to Gemma Blackabee at 11:38 on 29 May 2020 where she said ‘oooh shit hit fan Lorraine and Gary not doing the meetings they should be doing OMG I spoke to David Baynes and he is e-mailing Kathryn to let her know what happened’. Gemma Blackabee responded with a text that suggested that Kathryn Halford would be ‘mad’ and thought that Lorraine and Gary would end up ‘coping it’. What we take from this text exchange is that it was understood that the failure to attend the meeting was something that Kathryn Halford would take a very dim view of. This incident also adds to the evidence that Kathryn Halford held her staff to high standards.

[105]At 12:20 Kathryn Halford sent the Claimant an e-mail. It is this e-mail that is said to amount to harassment related to disability. The e-mail said: ‘I am not quite sure what happened today but please can you ensure that when people are covering for me they do attend the meetings and are aware that they should do so. We nearly missed a very important briefing this morning but luckily I checked’

[106]The Claimant promptly responded to that e-mail saying that ‘I can confirm that both Lorraine and Gary are aware of what meetings they are covering today’. She went on to say that she had been told that they had both attended the meeting but that Lorraine Bess had told Gary Etheridge that he did not need to stay and he had left after a few minutes. Kathryn Halford replied saying ‘Yes I realise this but we need to make sure that the right people are on the right calls and they know they where they should be. We are working in a very fluid situation and particularly as Lorraine and Tracey are now off we are going to have to monitor this very carefully. It is very difficult, I know’. The Claimant responded by forwarding the e-mails sent to Lorraine Bess and Gary Etheridge asking them to cover the meetings.

[107]A further text message exchange between the Claimant and Gemma Blackabee followed the second of Kathryn Halford’s e-mails. The Claimant’s assumption at the time was that Gary Etheridge had lied to Kathryn Halford about his reasons for not attending the meeting. We find that it is likely that Gary Etheridge did suggest that he had been unaware of where he was meant to be. The Claimant says that she later discovered that he had deleted the e-mail letting him know of the meeting. We do not need to make any findings about whether that is correct.

[108]It is clear to us that Kathryn Halford believed that something had gone seriously wrong. The Claimant’s evidence was that the e-mail from Kathryn Halford ‘accused her of not following instructions’. Neither of Kathryn Halford’s e-mails makes any express criticism of the Claimant. On the contrary Kathryn Halfords first e-mail made it clear that she did not know what had happened. She did not accuse the Claimant of not following her instructions. In our view her e-mails do nothing more than make it clear that care must be taken to ensure that the situation was not repeated. Whilst the Claimant might have felt annoyed that she was being included in, what might be regarded as a pool of perpetrators,/explanations in her text messages she recognised that the reasons for that were likely to be excuses made by Gary Etheridge. A – 17 and B-11 Accusing the Claimant of not providing a link for a meeting with the Chief Nurse of England.

[109]The Claimant says that on 17 September 2020 Kathryn Halford accused her of not putting a link in her calendar for a meeting with the Chief Nurse of England. She says that was an act of direct discrimination because of

[110]We find that by early September 2020 Kathryn Halford was becoming concerned about the Claimant’s organisational skills. She and the Claimant set out their account of their interactions with each other in their witness statements.

[111]On 3 September 2020 Kathryn Halford sent the Claimant an e-mail in which she said that she was supposed to have attended a telephone meeting but could not find the telephone number in the calendar. She asked that telephone numbers be included on the calendar. The Claimant responded by pointing out that the telephone details were found within the location field in the invitation. In her witness statement the Claimant had said that Kathryn Halford told her that she did not believe her explanation. She says that she had a panic attack and cried uncontrollably. There is nothing in the e-mails from Kathryn Halford where she suggests that she did not accept the Claimant’s explanation. There are numerous e-mail exchanges on that day and the Claimant does not refer to Kathryn Halford questioning her explanation. When Kathryn Halford raised this later on she maintained that she had not been able to see the telephone number. That is not the same as telling the Claimant that she did not believe her. On balance we do not accept that in response to this event Kathryn Halford said in terms, or even implied, that the Claimant was not telling the truth.

[112]Later on the same day Kathryn Halford sent the Claimant a further e-mail saying that she had not been provided with a ‘starleaf’ contact number for a meeting. The Claimant responded by saying that when she clicked on the invitation she could see a link. Kathryn Halford informed her that that was not visible in her calendar. The Claimant then explained this by saying that there could be issues when one occurrence was amended in a series of meetings.

[113]In September 2020 the Covid pandemic had resulted in a further rise in cases. Kathryn Halford had instructed the Claimant to set up a system whereby all members of her team had their temperature taken and recorded each day prior to 11am. In the evening of 3 September 2020 Kathryn Halford sent an e-mail to the Claimant informing her that she had checked the temperature register and that it had not been completed in full. What had prompted this was that Kathryn Halford knew that she had forgotten to have her own temperature taken. After this e-mail was sent Kathryn Halford spoke to the Claimant. Both of them were offended at the behaviour of the other. Kathryn Halford was shocked that when she told the Claimant that her temperature had not been taken the Claimant’s response was to say words to the effect that she should have done it herself. The Claimant was upset as she felt that she was being spoken to like a child.

[114]Motivated by her perspective that the Claimant had been disrespectful Kathryn Halford met with Christine Smith The Claimant’s formal line manager to raise her concerns. Christine Smith made very clear file notes of this meeting and the subsequent meetings. The tribunal find that those notes accurately record what was said at each meeting and record Christine Smith’s views of who was at fault. The Claimant in her witness statement has relied upon what Christine Smith has recorded her as saying as providing support for her account. Whilst we find that Christine Smith has accurately recorded what she has been told that gives only limited support for the proposition that what she was told was an accurate account.

[115]Christine Smith met with the Claimant on 11 September 2020. Christine Smith wanted to discuss the manner in which the Claimant had spoken to Kathryn Halford. What is clear from the notes of the meeting was that the Claimant set out at length her concerns that Kathryn Halford was continuing to rely upon Gemma Blackford to do many of the tasks that would normally have fallen to the Claimant. Christine Smith records the fact that the Claimant accepted that she had ‘challenged back’ when asked by Kathrine Halford about the temperature checking. The suggestion that was made by Christine Smith was that whilst the Claimant might properly expect to be given an opportunity to defend herself she should do so professionally.

[116]Christine Smith summed up her thoughts in relation to the issues raised by the Claimant. It is clear that she was concerned that Kathryn Halford continued to regard Gemma Blackford as her ‘go to’ source of assistance and would bypass the Claimant to do so. Christine Smith regarded this as ‘history repeating itself’. We find that this is a reference to Joanne Wingrave who had made similar complaints.

[117]Christine Smith met with Kathryn Halford to report back on her meeting with the Claimant. That meeting took place on 14 September 2020. In that meeting Christine Smith gave Kathryn some robust feedback. She raised her concerns about Kathryn Halford’s continued reliance on Gemma Blackford. She set out her view that as Gemma Blackford had been relatively young when she took up her post she had been moulded to Kathryn Halford’s expectations. She suggested that a more experienced/mature PA might find it harder to adapt. It is important to note that there is nothing in the note that suggests that Kathryn Halford agreed with this point of view. Christine Smith suggested to Kathryn Halford that in not giving her own temperatures to the Claimant she had been trying to ‘catch the Claimant out’.

[118]Kathryn Halford returned to continue the meeting later in the day. We find that she had been dwelling on the suggestion that she had been trying to catch the Claimant out. She told Christine Smith that that was not the case. She went on to give further details of where she found the Claimant’s performance to be lacking. It is notable that she acknowledges the IT difficulties that the Claimant had experienced. She was also aware of the fact that the Claimant was very concerned at that time around her mother’s health She also said that she knew that the Claimant had had difficulties working with Kenye Karemo. The outcome of the meeting was that there was an agreement that Kathryn Halford should engage in a conciliatory meeting with the Claimant.

[119]Kathryn Halford met with the Claimant on 15 September 2020. Both Kathryn Halford and the Claimant gave an account of that meeting to Christine Smith who recorded both accounts. On the account of both parties it appears that the meeting had been constructive. The Claimant is recorded as saying that the meeting had ‘cleared the air’. Christine Smith records that she had advised the Claimant of the need to be vigilant around Kathryn Halford’s emails and calendar. Kathryn Halford reported that she had told the Claimant that she absolutely wanted her to remain as her PA. Christine Smith records that she warned Kathryn Halford that there was ‘no one quite like her’ and her ‘head mistress approach’.

[120]Drawing the threads together from that evidence we draw the following conclusions: 120.1. That there were a number of instances where Kathryn Halford needed to scrabble around at the last minute to find information about meetings she needed to attend. She expected to the Claimant to be completely on top of her diary and to provide that information clearly and in advance. Whilst we would accept the Claimant’s case that the information was available if you knew where to look that was not what Kathryn Halford expected. We find that given her role and the pressure she was under her high expectations of her PA were not unreasonable; and 120.2. We find that Kathryn Halford did continue to rely on Gemma Blackabee. We note that many of the e-mails that we were taken to had Gemma Blackabee copied in. We find that by this stage this was a source of justifiable irritation for the Claimant.

[121]Having set the background we shall turn to the events of 17 September 2020. We consider it important that on 15 September 2020 Christine Smith had advised the Claimant of the need to be vigilant. On 17 September 2020 Kathryn Halford believed that she would be attending a virtual meeting with the Chief Nurse of England to discuss the Covid pandemic. She justifiably regarded this as a very important meeting.

[122]Kathryn Halford had received an e-mail that informed her that there was to be a meeting with the Chief Nurse. The e-mail stated that confirmation that a place would be allocated would be sent out by 10 September 2020. She had responded to that e-mail indicating that she wanted to attend. She had forwarded the invitation to the Claimant. meeting was then included in her diary. What she had not realised at the time was that if the meeting was oversubscribed invitations would be limited. She was sent an e-mail informing her that she had not secured a place. We accept her evidence that she overlooked that e-mail which the Claimant later discovered in Kathryn Halford’s deleted e-mails.

[123]The Claimant appeared to suggest that Kathryn Halford knew she had not been invited to this meeting but sought to blame her. This implicitly includes the suggestion that Kathryn Halford had read the e-mail telling her that she did not have a place at the meeting but chose to keep that to herself in order to catch the Claimant out. We find that that is a fanciful suggestion that is not supported by any evidence. The Claimant is so suspicious of Kathryn Halford that she cannot countenance the possibility that Kathryn Halford, Gemma Blackabee or even herself, all of whom had access to the inbox, might have deleted the e-mail accidentally. We find that this evidences a lack of perspective that we have commented upon elsewhere.

[124]On 17 September 2020 Kathryn Halford still thought that she was to attend a very important meeting. She knew that the meeting had been arranged by Zoom and knew that this was not supported by the Respondent’s IT system. She therefore chassed the Claimant for details of how she could join the meeting. The issue was then discussed between Kathryn Halford and Christine Smith.

[125]The Claimant’s case set out in the schedule is that Kathryn Halford shouted at her. She does not state that in terms in her witness statement. We accept that Kathryn Halford was initially very concerned that she might miss a very important meeting. She may well have been agitated. We do not accept that she shouted at the Claimant. The Claimant discusses this incident on text exchanges with Gemma Blackabee. There is no suggestion within those of any shouting. She did not report to Christine Smith that she had been shouted at.

[126]Within the e-mails exchanged between Kathryn Halford and Christine Smith there is a recognition that there had been errors. Christine Smith recognised that the Claimant had not noticed that confirmation as to whether Kathryn Halford would be invited to the meeting with the Chief Nurse was to be sent by 10 September 2020. Furthermore she had not taken any steps to ascertain how Kathryn Halford might attend a zoom meeting. It was acknowledged by all that the Claimant did not see the e-mail deleted in error by Kathryn Halford. We place some weight on the fact that Christine Smith, who has been conspicuously fair towards the Claimant in her notes, clearly considered that the Claimant had a part to play in the errors that had occurred.

[127]We find that it was unsurprising that Kathryn Halford would be concerned by the way this had been handled by the Claimant. A very important meeting was in Kathryn Halford’s diary. Had the Claimant noted that a confirmation e-mail was expected she could have, and Christine Smith agrees should have, acted proactively when no confirmation was drawn to her attention. We find that if the Claimant believed that the meeting was going ahead she should have proactively ensured that Kathryn Halford had the means to join a zoom call. The Claimant was expected to have the skills of an executive PA. Kathryn Halford could quite properly have expected a higher standard than the Claimant managed on this occasion.

[128]The Tribunal further finds that when the issue was raised with the Claimant her response was very defensive. She made considerable efforts to locate the e-mail notifying Kathryn Halford that she had not been offered a place at the meeting. When the Claimant reviewed the e-mail exchange between Kathryn Halford and Christine Smith she sent an e-mail to Christine Smith. She stated that she had not seen the e-mail deleted by Kathryn Halford. She ends her e-mail with an apology. It appears to us that, at the time, the Claimant recognised that she had not done as well as might have been expected. B-10 and B-12 – Blaming the Claimant for not providing information – 29 October

[129]There was very little factual dispute about this matter. Kathryn Halford had been expected to attend a meeting of Chief Nurses of North East London. When she reviewed her diary she noted that her diary did not include any indication of the subject matter of the meeting. She explained, and we accept, that she viewed this as important in order that she could consider delegating the responsibility of attendance if it was appropriate. She sent an e-mail to the Claimant that simply requested that the Claimant include the topic of any meeting when placing entries in her diary. The Claimant responded saying that the meeting invitation had been generated externally. Kathryn Halford responded saying ‘Thanks Sharon, in future if this occurs please can you contact the person and ask what the meeting is about so that we know I am the right person to attend’.

[130]We find that Kathryn Halford’s request was entirely reasonable. We find that she could reasonably expect her PA to be proactive in making sure she was aware of the purpose of any meeting she was invited to. We consider the email exchange is just a polite reminder of those expectations. There is no criticism of the Claimant but simply a reminded of what to do in the future. A-18 – the Claimant’s birthday

[131]The Claimant complains of the way Kathryn Halford treated her on her birthday, 4 November 2020. The wording of the Claimant’s schedule is as follows: ‘Ollie, Mrs Halford’s son, brought a card and a plant for C’s birthday; there was no acknowledgment from Mrs Halford on the card. She did not wish C happy birthday even though they had engagements during the day, compared to other PAs to whom she made efforts and sent flowers and acknowledging cards’. This is said to amount to direct discrimination because of disability (menopause anxiety and depression).

[132]The Claimant says little more about this allegation in her witness statement. What was very surprising for the tribunal was that the Claimant was very reluctant to accept in her oral evidence that any gift or card brought to her by Kathryn Halford’s son was done on behalf of Kathryn Halford. This was entirely obvious and must have been obvious to the Claimant who had no relationship at all with Kathryn Halford’s son.

[133]Kathryn Halford had not been working on the morning of the Claimant’s birthday. She had gone to the trouble of asking her son to deliver a gift and a card. Because of this the card was unsigned.

[134]In her oral evidence the Claimant accepted that she had not said thank you to Kathryn Halford when she had attended work later. Kathryn Halford speculates, but cannot remember, that she may not have said happy birthday because she had been expecting a thank you from the Claimant.

[135]This allegation borders on the trivial. However, we consider that it is of some importance. Firstly the fact that the Claimant did not have the decency to thank Kathryn Halford for her thoughtfulness is a good indication of how the Claimant viewed their working relationship. In addition the stance taken by the Claimant in denying that there had been a thoughtful gift from Kathryn Halford drives the Tribunal to the conclusion that the Claimant has lost perspective. The fact that the Claimant appears to genuinely believe that the failure to sign a birthday card in these circumstances is unkind leads the Tribunal to the conclusion that the Claimant’s description of the events giving rise to these claims is very likely to be distorted by subsequent events. We have taken this finding into account where there are issues in dispute. We do of course remind ourselves that the fact that we have reason to doubt the Claimant’s abilities as a historian in relation to this matter is not determinative of all contested matters but is something which we might take into account. A-21 Telling the Claimant that she had missed a meeting from her diary.

[136]This allegation concerns events said to have taken place on 9 November 2020. At 10:14am on 9 November 2020 Kathryn Halford was sent an e-mail concerning the roll out of routine Covid testing for asymptomatic staff. The mail refers firstly to the fact that there was to be a national webinar on that day at 15:00. The e-mail then goes on to say that there would be a follow up call for the London trusts concerned that would start at 16:15. The e-mail asked for details of the ‘nominated leads’. On any proper reading of the email it refers to two meetings one at 15:00 and one at 16:15.

[137]Kathryn Halford forwarded the e-mail she had received to the Claimant. She said ‘Please can you advise that the call will need to be me. Magda, Alan and Clare Bailey’. She asked that her diary be amended. In her e-mail she does not specifically refer to the webinar at 15:00. However she does not give any time for ‘the call’ as the information is contained in the e-mail she had forwarded. If the Claimant had read that e-mail she would have realised that ‘the call’ was to follow up on the webinar.

[138]The e-mail invitation to the webinar and subsequent call had not been sent directly from the organiser to Kathryn Halford. She had been sent it by the CEO Tony Chambers. As a consequence Kathryn Halford had not been sent details of how to join the webinar. At 12:26 Kathryn Halford sent the Claimant an e-mail saying that she was concerned that the 15:00 meeting was still not in her diary. She asked if the Claimant knew why. The Claimant responded by asking what meeting Kathryn Halford was referring to. A minute of two later she asked Gemma Blackabee the same question.

[139]The Claimant contacted Colleen Smith at 12:43 saying ‘Here we go again there isn’t a meeting I have missed is there xx’. By 13:39 the Claimant had read the original e-mail and discovered the 15:00 webinar but noted that there were no details given of how to join. She then endeavoured to obtain these but Kathryn Halford was ultimately able to use her contacts to obtain details of how to join the webinar. She let the Claimant know that she had been able to do so.

[140]In her witness statement and in her allegations the Claimant says that Kathryn Halford ‘said that she had concerns that I was not doing my job properly’. We find that all the discussion about this matter took place by email. We accept Christine Smith’s evidence that the Claimant was working at home. There is no point at which Kathryn Halford uses the words the Claimant attributes to her. The Claimant says in her witness statement that as the original e-mail had been sent to Tony Chambers that explained why Kathryn Halford had not been sent joining details. That is correct but it overlooks the fact that the Claimant was sent the original e-mail and asked to put the events in Kathryn Halford’s diary. A careful reading of that e-mail would have informed the Claimant that there were two meetings and that there were no joining instructions for the first one.

[141]The Claimant was working from home on this day. She says in her witness statement that these events caused her to have a panic attack, cry uncontrollably and to fall to the floor. We do not need to make any finding about that. If that account is true then it was not observed by any employee of the Respondent. It would have been an extreme reaction but we acknowledge that the Claimant would have been aware that she had not properly read the e-mail setting out the two meetings. She could have anticipated some criticism. In fact no criticism was directed towards her on that day.

[142]The Claimant has disclosed text messages between herself and Diane Clements where they engage in a conversation complaining of Kathryn Halford’s behaviour. The Tribunal accept that the Claimant was upset by the suggestion that she had failed to enter a meeting in Kathryn Halford’s diary. That said, we find that in this instance the Claimant had made an error. She appears unable to face up to this, either at the time, or now. The Claimant and Gemma Blackabee’s disagreement

[143]Gemma Blackabee was expecting to go on a period of maternity leave at the end of 2020. On about 12 November 2020 Kathryn Halford spoke to an employee called Monika Mesuria about the possibility of her covering Gemma Blackabee’s maternity leave. The Claimant discovered this because she had access to Kathryn Halford’s e-mails. In her witness statement the Claimant expresses her disappointment that the question of covering for Gemma Blackabee was not discussed with her. We find that it would not have crossed Kathryn Halford’s mind that the Claimant might be suitable for Gemma Blackabee’s role. We find that by mid-November Kathryn Halford had growing concerns about whether the Claimant was suitable for the Band 5 role that she held let alone the Band 7 role that was held by Gemma Blackabee.

[144]Gemma Blackabee told us, and we accept, that the Claimant came to see her in her office. She said, and we accept, that the Claimant was very angry and upset. When asked why she was so angry the Claimant explained that she had learned of the proposals for covering Gemma Blackabee’s maternity leave. When Gemma Blackabee asked the Claimant why she was directing her anger at her she responded saying ‘you’re young, you’re moulded, I am not like you’. Gemma Blackabee asked the Claimant to leave her office but the Claimant refused to do so she left. The tribunal accepts Gemma Blackabee’s account of this disagreement.

[145]The tribunal notes that it was the Claimant who made the suggestion that Gemma Blackabee ‘could be moulded’. That suggestion resonates with the notes made by Christine Smith who used a very similar phrase. The phrase is capable of amounting to a stereotypical ageist assumption. We note that it is the Claimant on this occasion who is using this expression and not those that she has accused of age discrimination. This is an example of what we refer elsewhere as the Claimant projecting her internal concerns onto others. A-22 Diverting the NHSE project to Gemma Blackabee

[146]The way in which this allegation is put in the Claimant’s schedule is that it was Kathryn Halford who ‘took’ the Claimant’s NHSE (‘NHS England and Improvement’) project ‘because she said that the Claimant was underperforming’. It is said to be direct discrimination because of disability. Both Kathryn Halford and Gemma Blackford explained in their evidence how it was that Gemma Blackford initially took the lead in organising a meeting which took place on 19 November 2020. They explain that ordinarily the Claimant would be expected to take the lead on organising meetings within Kathryn Halford’s remit that are to take place on site. Gemma Blackabee told us that the visit from NHS England and Improvement team was to include the Infection Prevention and Control team (‘IPC’). The IPC team fell within the responsibilities of the Chief Medical Officer’s portfolio. She explained that, whilst she cannot identify precisely by whom and when she was asked to assist with organising this meeting, she can see from contemporary correspondence that she was corresponding with members of the Chief Medical Officer’s team. Kathryn Halford in her evidence confirms that the meeting was not within her remit and that she had no part in asking Gemma Blackabee to assist with the organisation. The Claimant had no evidence that would contradict this explanation. We accept the evidence of Gemma Blackabee and Kathryn Halford that the meeting fell within the ambit of the Chief Medical Officers team and that this was why Gemma Blackabee was asked to assist by that team.

[147]The Claimant’s allegation is that Kathryn Halford ‘took the project’ because she said that the Claimant was underperforming. That would have entailed the Claimant being expected to lead on the NHSE/IPC meeting and that a conversation took place when the Gemma Blackabee was instructed to take over. The Claimant repeats the same bare allegation in her witness statement but adds the suggestion that Kathryn Halford told her that she wanted somebody dynamic to do the job. The suggestion is that that conversation took place on 17 November 2020.

[148]The Claimant has provided a number of contemporaneous documents in the ‘supplementary bundle’ section of the trial bundle. These are heavily annotated by the Claimant with both emphasis being added and her own commentary. The Claimant’s own commentary sheds no light on the occasion where she says Kathryn Halford spoke to her.

[149]We have seen an e-mail sent by Gemma Blackabee at 4:47 on 16 November 2020 to Sian Olivio asking her for her availability to discuss the ‘program for Wednesday’. We do not accept that there was any conversation between the Claimant and Kathryn Halford about Gemma Blackabee taking over the organisation of the meeting either on 17 November 2020 or at all. We accept Kathryn Halford’s evidence that she played no part in asking Gemma Blackabee to organise the meeting. It follows that we reject the Claimant’s evidence that Kathryn Halford told the Claimant that the reasons for Gemma Blackabee being asked to organise the meeting were the Claimant’s ‘underperformance’ or that she wanted somebody dynamic to do the job. We find that the Claimant has simply ascribed those reasons to Kathryn Halford because she believes that this is why Gemma Blackabee was asked to organise the meeting. We find that that belief is without any foundation.

[150]The Claimant’s involvement with the NHSE meeting was instigated by Gemma Blackabee. She had realised that she needed to attend a ‘QGSG’ meeting on the same day as the NHSE meeting. On 17 November 2020 at 16:58 she sent the Claimant an e-mail asking for assistance. The Claimant responded by saying ‘great thank you’. The Claimant then assisted with the organisation of the meeting. We accept the Claimant’s evidence that the late notice of her involvement did put her under some pressure. It is not necessary to make any further findings in respect of this matter. A-19 Gemma Blackford returning to her role as PA

[151]The Claimant suggests in her schedule that she was removed from her role as Kathryn Halford’s PA without notice and that Gemma Blackabee took up her role. She says that this is direct discrimination because of disability. There is no dispute that the Claimant moved roles and no dispute that Gemma Blackabee returned to the role that she had undertaken before her promotion but it is necessary to make findings as to what led to this.

[152]In her witness statement the Claimant says: ‘KH placed GB back into the role without giving me any notice on this day [20 November 2020]. All KH said to me was that the role that she had created for GB was unsuitable at this time…..I was replaced by GB without a job to go to’. We find that these sentences are inaccurate in a number of respects.

[153]By 14 November 2020 Kathryn Halford was becoming increasingly concerned about the Claimant’s abilities. She wrote an e-mail to Chris Smith that outlined her concerns. We consider that Kathryn Halford’s e-mail is balanced and reflective. She sets out the history of the Claimant’s appointment and acknowledges the IT challenges that the Claimant faced. She says that in her conversations with Christine Smith she has raised the Claimant’s performance. She then fairly acknowledges that the Claimant has expressed dissatisfaction in the way that she has been managed by Kathryn Halford. She said that she did not believe that the status quo could continue. However what she then set out was a series of suggestions as to how the working relationship might be improved. The first suggestion that she made was to offer the Claimant some additional training as a PA. She says that she would support her attendance at an external course. She then suggests using the ‘PDR’ process. She then goes on to acknowledge that she needs to stop asking the Claimant to provide her with tea. Finally, she suggested that there should be a diarised daily catch up for 15 minutes. We find that all these suggestions were eminently sensible and constructive. There is no hint that Kathryn intended to displace the Claimant from her role. We find that that was not in her mind at the time she wrote that e-mail.

[154]Catherine Smith says in her witness statement, and we accept, that she saw some difficulties with Kathryn Halfords suggestions. She did not know of any internal training programs. She was aware that the ordinary ‘PDTR’ process had been suspended because of the Covid pandemic and replaced with a wellbeing meeting.

[155]Gary Etheridge told us, and we accept, that shortly after she wrote her email to Christine Smith, Kathryn Halford spoke with him about the possibility of finding the Claimant an alternative role in the Patient Experience Team. A need for an additional employee had arisen as an employee was going on maternity leave. The role that was available was in part a role as PA to Victoria Miles-Gale and in part a Project Support Officer role. The discussions between Kathryn Halford and Gary Etheridge led to a meeting between Christine Smith, Alan Wishart and the Claimant. That meeting took place on 18 November 2020. Mrs Reeve was told that there was a vacancy for a 1 year pilot role as a Project Support Officer. The Claimant had previously applied for a similar role but had been unsuccessful.

[156]The Claimant has sought to suggest that this role was forced upon her and that she was reluctant to take it up. That suggestion was challenged during cross-examination. The Claimant attempted to stick to her position but we found her evidence to be defensive and inconsistent with documents she had authored at the time. In text messages sent on 18 and 19 November 2020 the Claimant thanks Christine Smith for her support. She indicates that she has informed other PAs that she will be moving roles. At one point she describes herself as relieved. We find that the Claimant was relieved that a solution to a difficult situation had been found. On 25 November 2020 the Claimant wrote to Christine Smith to formally accept the offer of the role in the Patient Experience Team. She says that ‘I am very excited to have this opportunity and work alongside Victoria Miles-Gale and her team’. We find that these sentiments were genuinely held and that the Claimant was excited and relieved to be moving on.

[157]The Claimant’s e-mail of 25 November 2020 was her formal response to Christine Smith’s offer of a role. Between 18 and 25 November 2025 the employee who had been anticipated to start maternity leave indicated that she would return to work. Furthermore in correspondence between Kathryn Halford and Christine Smith, Kathryn Halford had identified that if the Claimant was given a 1 year pilot role the role would need to be advertised before it could be renewed. We find that Christine Smith recognised that the attractiveness of the role for the Claimant would depend on its permanence. She obtained assurances from Kathryn Halford that the Claimant’s employment would be treated as secure should the role not continue beyond 1 year. We find that whilst the role was described as a secondment there was an understanding across all parties that after 1 year if the role did not continue there was no question of the Claimant returning to be Kathryn Halford’s PA but that an alternative role would be found.

[158]Kathryn Halford, Christine Smith and Gemma Blackabee all say that it was only after the Claimant had agreed to move roles that the issue of who should replace her arose. Gemma Blackabee had been through a particularly difficult time. She decided for personal reasons that she would welcome a step down from her Band 7 role. She put herself forward as a replacement for the Claimant on the understanding that she would retain some of her additional responsibilities that had justified her Band 6 post.

[159]As we have indicated above we have not accepted the Claimant’s case that she was moved with no notice. She changed roles because she agreed to do so. We find that she knew that the role as Kathryn Halford’s PA had not worked out well. It is unnecessary for us to make any findings about what, if any, explanation Kathryn Halford gave the Claimant for Gemma Blackabee returning to her band 6 role. We consider it very likely that she would have been discrete about the reasons given that she was aware they included sensitive matters.

[160]The fact that the Claimant’s time as Kathryn Halford’s PA ended with the Claimant moving roles meant that for the third time the Claimant moved roles before any of her managers concerns about her abilities were addressed either through the sort of supportive measures identified by Kathryn Halford or through more coercive measures such as performance management. We find that the approach of the Respondent, which we infer was endorsed by Alan Wishart, was to take the path of least resistance. Working With Victoria Miles-Gale – Generally

[161]The Claimant has brought a large number of claims against Victoria MilesGale. These include claims of direct discrimination because of age and disability. In support of these claims the Claimant had called Antoinette Webber. Antoinette Webber had worked alongside the Claimant from November 2020 to June 2021. As such where she was able to give evidence about what she observed herself her evidence was potentially of great value. The Tribunal read her witness statement carefully and noted that in passages of her witness statement she set out a broad statement that ‘everybody knew’ that there was an institution of racism under Victoria Miles-Gale’s management. She goes on to suggest that Victoria Miles-Gale would put pressure on the elderly, black and ethnic minority staff using this route to micromanage them out of their jobs. No detail is given for these sweeping allegations. Antoinette Webber said that a pregnant member of staff had been placed under pressure to pack heavy boxes by Victoria MilesGale and says that as a consequence she lost her baby. It is difficult to envisage a more serious allegation. There was no supporting evidence for this.

[162]Antoinette Webber went on to say in her witness statement that after the Claimant resigned she was subjected to the same sort of treatment. She says that she raised a grievance and suggests that she was supported by 12 other staff members. She said that they all then resigned on principle. We found this evidence troubling. The difficulty for the Respondent is that the allegations were not pleaded and as such they had not been touched upon in any witness statement. The Respondent produced a spreadsheet of all leavers from the Patient Experience, PALS and complaints team between September 2020 and March 2024. That spreadsheet did not support the suggestion by Ms Webber that 12 people who had spoken out with Antoinette Webber had resigned on principle. We find that she has exaggerated when she made the suggestion that there was a mass resignation at the time a grievance was brought.

[163]We were told that Antoinette Webber had brought a claim before the Employment Tribunal. That would not necessarily have any impact on our assessment of her as a witness. However, we found Antoinette Webber to give her evidence in a combative manner – sometimes more of an advocate than a witness of fact. This, coupled with our finding that she had consciously exaggerated the number of people she says had resigned at the time of her grievance means that we have treated her evidence with some caution. Allegations A1 and A20 – The Claimant doing 2 roles – workload

[164]Allegations A1 and A20 cover the same ground. The Claimant complains that when she moved to take up her role in the Patient Experience team she was doing the jobs of two people one on band 5 and one on band 6. She says that this was an unreasonably heavy workload. She adds a further element to the complaint that she was only paid at the rate of a band 5 employee. The Claimant says that this was direct discrimination because of age and/or disability

[165]The Claimant suggests that she did the work of both Esther Achugamoyonye who was a Band 5 PA/Project Support Officer and that of Christine Matthews who was at the time a Band 6 Patient Experience Facilitator. As we have found above when a move to the Patient Experience team was first considered it was thought that Esther Achugamoyonye would be off work. That turned out not to be the case and she did not start her maternity leave until January 2021. Christine Mathews had a period of sick leave from October 2020 until March 2021. When the possibility of the Claimant taking up a role was discussed Kathryn Halford suggested that she might cover the work of Christine Mathews. Victoria Miles-Gale tells us, and we accept, that she was unaware of this suggestion.

[166]We find that the role that the Claimant was appointed to and the role that Victoria Miles-Gale expected her to do was that of a Band 5 Project Support Officer. She explained that whilst a Band 5 employee was expected to do some of the tasks of a Band 6 employee in the team there were other Band 6 duties which a band 5 employee would not be expected to cover. We accept Victoria Miles-Gale’s evidence that whilst the Claimant may have sone some tasks that might have been done by Christine Mathews it is not the case that she did the entirety of her role. We are assisted in this by the records of the one to one meetings that Victoria Miles-Gale held with the Claimant initially on a weekly basis. These are detailed documents that set out the specific tasks assigned to the Claimant. We have Christine Matthews Job description and a comparison between that job description and the tasks assigned to the Claimant has led us to accept that the Claimant was not carrying out Christine Matthews role in full.

[167]Esther Achugamoyonye did not start her maternity leave until 26 January 2021. The one to one meeting records show that in the run up to her departure the Claimant was assigned one aspect of Esther Achugamoyonye’s work namely minute taking.

[168]We find that insofar as the Claimant suggests that she was doing the work of two people that suggestion is an exaggeration. The Claimant in her schedule includes the suggestion that the Claimant is struggling with the workload and had told Victoria Miles-Gale that that was the case. That suggestion is undermined by the contemporaneous records of the one-toone meetings. We have confidence that what is recorded in these records is accurate because the earliest ones are all sent to the Claimant for her comments. The following records are of significance: 168.1. On 3 December 2021 the Claimant is recorded as ‘Settled into team well, being supported by other team members’; and 168.2. On 17 December 2020 the Claimant is recorded as: ‘Happy with workload and instruction and direction. Will ask for additional support from manager and wider team if required. No health or wellbeing issues’. When the Claimant was sent the records of the one-to-one meeting that took place on 17 December 2021 by Victoria Miles-Gale the covering e-mail said: ‘Please see attached – have a read through and let me know if anything concerns you or you need further support’; and 168.3. On 7 January 2021 Victoria Miles-Gale recorded that the Claimant had a difficult few days . The cause of this is recorded as the fact that annual leave had been cancelled due to the Covid pandemic and that the Claimant had a bereavement. There is no reference to any excessive workload. 168.4. On 21 January 2021 the notes of the One-to-One record that the Claimant is to take on Esther Achugamoyonye’s minute taking role. As the records include a list of the projects assigned to the Claimant we can see that it is not the case that the Claimant took on the entirety of Esther Achugamoyonye’s role. 168.5. The record of the meeting on 4 February 2021 includes in the wellbeing section a record that says: ‘All ok – has had some annual leave. IT is causing some stress but this is for everyone! Let advise (sic) if anything changes or if further support required’.

[169]Having regard to the evidence in the round we are not satisfied that the Claimant did, as she claimed, fill two roles. This is we regret to say an example of the Claimant exaggerating. What we do accept is that the Claimant undertook a number of tasks some of which might have ordinarily been covered by the two employees she identified.

[170]Turning back to the first one-to-one meeting the Claimant suggests that Victoria Miles-Gale asked her whether she was being performance managed. She draws support for that suggestion from the evidence of Antoinette Webber. We do not accept that this was said at all. The records of that first one-to one are sent to the Claimant by Victoria Miles-Gale and she is asked to make any corrections or to add anything missed out. The Claimant does not refer to this comment. The Claimant has on other occasions drawn attention to anything she found to her dissatisfaction. Had this comment been said we would have expected it to have been recorded. We find that the origins of this suggestion are Antionette Webber’s broad theory that Victoria Miles-Gale was sent staff members in order to manage them out of the organisation.

[171]The allegation made at A1 is broad and covers the period November 2020 to April 2021. The suggestion that is made is that the Claimant’s workload was excessive during the whole period. We do not accept that the Claimant ever had an unreasonable workload. We do find that there came a point that the Claimant was falling behind with some of the tasks that she was allocated but we shall deal with those matters when they arise in respect of other issues. The Claimant’s work in the Patient experience team November to the end of January

[172]Having reviewed the notes of the one-to-one meetings between the Claimant and Victoria Miles-Gale we find that the early months of the Claimant’s work in the patient experience team were uneventful. Victoria Miles-Gale said in her witness statement that when she had held an initial catch up with the Claimant on 19 November 2020 (before she moved) she regarded the Claimant as being in a very fragile state. The Claimant was tearful. Victoria Miles-Gale thought that the Claimant’s experiences working with Kathryn Halford had knocked her confidence.

[173]We find that Victoria Miles-Gale took care to carefully manage the Claimant. The records of the one-to-one meetings all include a discussion about wellbeing. In addition they set out the tasks that have been allocated and the timeframe within which each task should be completed.

[174]We find that initially the new role was working well. The first issue that made Victoria Miles-Gale question the Claimant’s competency concerned a project whereby patients were contacted by telephone post discharge and given the opportunity to raise any concerns. Victoria Miles-Gale asked the Claimant to take the lead on this project and to produce a report evaluating the outcome. The Claimant did produce a report. Victoria Miles-Gale was of the view that it was not of the standard that could be accepted and not of a standard that would be expected of a Band 5 employee with PA experience. She accepted in her evidence that the Claimant might not have had experience of writing evaluation reports previously. We were provided with the report authored by the Claimant without assistance and the final version after Victoria Miles-Gale had stepped in to offer assistance. We are able to reach our own conclusions about the Claimant’s initial draft. We would agree with Victoria Miles-Gale that the Claimant’s draft is a very basic document. The final draft is a significantly better written more informative document.

[175]More significant issues arose when the Claimant was required to support two meetings and take minutes once Esther Achugamoyonye left on maternity leave. There were two meetings that were serviced by the Patient Experience Team. The first was the meetings of the Patient Partnership Council (‘PPC’). The second was the Patient Experience & Engagement Assurance Group (‘PEEAG’).

[176]The Claimant produced her first minutes of a PCC meeting that had taken place on 14 January on 9 February 2021. She sent those minutes to Victoria Miles-Gale. Victoria Miles-Gale reviewed the minutes and later the Claimant sent a further version. There were no major changes to the Claimant’s first draft. Victoria Miles-Gale told us and we accept that her normal practice when reviewing documents is to print them off and add any comments or corrections in manuscript. The Claimant throughout her evidence used the phrase ‘scribbled on’ to describe this practice. The Claimant’s language was then picked up by Ms Pankowski who repeatedly suggested that making amendments in this way was to be equated with scribbling over the Claimant’s work. The Tribunal consider the use of that phrase to be unnecessarily inflammatory. As we shall come to below, Victoria Miles-Gale made extensive changes to some of the minutes prepared by the Claimant. The need for corrections was in our view obvious and justified. Whilst the Claimant might have resented her work being corrected her categorisation of that as ‘scribbling’ adds weight to the other evidence that the Claimant was unwilling or unable to accept constructive criticism of her work.

[177]The Claimant had a one-to one meeting with Victoria Miles-Gale on 18 February 2021. We have seen the notes of that meeting which were sent to the Claimant for her comments. The Claimant acknowledged that the notes were ‘good’. Under the heading ‘wellbeing’ Victoria Miles-Gale recorded that the Claimant was ‘Overall is happy and no issues to be discussed’. In her covering e-mail Victoria Miles-Gale told the Claimant that as ‘she had become much more comfortable and confident in her role’ she was reducing the periods between the one to one meetings to 2 weeks. She ended her email with a reminder that ‘my door is always open for us to speak’.

[178]Looking at the evidence up to this point we are satisfied that the Claimant was not, as she has suggested, doing the work of two people or was being overburdened with work. She had ample opportunity to raise any issues she had about work or any issues she had with her health. We find that she did not raise any issues at all with Victoria Miles-Gale other than some personal difficulties at the outset of the year when she needed time off to attend a funeral. A-2 informing the team that Siobhan Francis would be joining.

[179]There was no dispute that on 19 February 2021 Victoria Miles-Gale informed the Claimant and the wider team that Siobhan Francis would be joining. This is said to be direct discrimination because of age and/or disability. Siobhan Francis was born on 16 September 1981 and is 14 years younger than the Claimant. The e-mail informing the team was sent by Victoria Miles-Gale and said that the role of Siobhan Francis was ‘to provide additional support ad help to deliver some of our key projects’. The tribunal notes that in the allegation we have dealt with above the Claimant’s complaint was that she had too much work to do and is struggling. Her complaint here is that a team member was recruited to help with the workload. It is difficult to reconcile the two complaints.

[180]The Claimant’s witness statement refers to the move by Siobhan Francis and cross refers to an annotated version of Victoria Miles-Gale’s e-mail announcement. Somewhat improperly when she produced that e-mail within what was then a supplementary bundle of documents the Claimant amended the subject line from ‘Good News!’ to add the words ‘SF joining the team beginning of March in her 30’s’. Siobhan Francis was 39 at the time she moved teams. Mr Jones suggested that the amendment displayed dishonesty. We would not go that far. What we would say is that almost every document prepared by the Claimant from May 2021 onwards includes her advocating from her own perspective. Her annotations of original documents and this alteration all serve the purpose of the Claimant putting forward her view of events.

[181]We accept Victoria Miles-Gale’s evidence that her reasons for approaching her counterpart in the PALS Team to see if there was anybody who could be released to assist her team was that the Patient Experience Team was considered to be short-handed. If that were not the case it is unlikely that the move from the PALS team would have been agreed and unlikely that Victoria Miles-Gale would have announced the arrival of a new team member as being ‘Good News’ in the way that she did.

[182]The Claimant’s witness statement does not deal in any detail with what projects were supposedly transferred to Siobhan Francis or indeed why the Claimant would object to that.

[183]In Ms Pankowski’s submissions she invites the tribunal to take note of the fact that Victoria Miles-Gale had worked with Siobhan Francis in the past and that she was transferred without being interviewed. Both submissions are factually correct.

[184]There were only two pieces of work that the Claimant suggested that she had been doing which were later done by Siobhan Francis. The first concerned health information leaflets. The second concerned taking minutes of PCC meetings. We shall deal with each in turn.

[185]The Claimant says in her witness statement that she had completed a project in relation to a ‘Health Information Policy’ but that Siobhan Francis was taking the credit for her work.

[186]The Claimant had been asked to work on health information leaflets. This is a task that is referred to on the records of her one-to one meetings with Victoria Miles-Gale. On 16 April 2021 Victoria Miles-Gale asked Siobhan Francis to update a Health Information Policy. The e-mail with that instruction is copied to the Claimant. She suggests that this involved taking a project away from her. We do not agree. We find that there were two separate pieces of work although they both concerned the provision of health information to patients. The Claimant had completed work relating to leaflets. The work that Siobhan Francis was asked to do was to update a policy document. We have read e-mails sent by Siobhan Francis when she was updating the policy that make it clear that the work that she was doing was not the task that had been allocated to the Claimant. It is correct that the Health Information Policy built upon work that the Claimant had completed but she had not been asked to update the policy itself. It is clear that Siobhan Francis undertook the work that she had been allocated against a short deadline. We do not accept that she took credit for the Claimant’s work. The suggestion that she did is unattractive.

[187]There is no dispute that once the Claimant left the team Victoria Miles-Gale allocated responsibility for supporting the PPC to Siobhan Francis. The ‘let it out’ session

[188]On 26 February 2021 Victoria Miles-Gale invited her team to attend a ‘let it out’ session. The intention behind this was for team members, if they wished, to describe the effect on them of the Covid pandemic. The invitation made it clear that attendance was voluntary and would be discussed in one to one meetings. It was made clear that ‘Nobody will be asked to do or say anything they don’t want to’.

[189]In her ET1 the Claimant has given an account of this meeting. She said that she felt that she was being pushed to talk about her mental health. Other than the fact that the session was organised for the purpose of allowing those who wanted to get matters off their chests the Claimant does not actually say why she felt she was pushed to talk about her mental health. In her witness statement the Claimant says that Victoria Miles-Gale was ‘pushing me to speak about my menopause anxiety and depression’. In her oral evidence the Claimant made the surprising suggestion that this was something expressly raised at the let it out session. We do not accept that Victoria Miles-Gale did anything other than to encourage members of the team to raise any matter they wished to share. In reaching this conclusion we draw on our findings about Victoria Miles-Gale’s knowledge of the Claimant’s disabilities. A-3 encouraging Siobhan Francis to apply for a Patient Facilitators role

[190]This allegation concerns the point shortly after Siobhan Francis was asked to transfer to the Patient Experience team. A Band 6 role for a Patient Facilitator role was being advertised at that point. There was no dispute that Victoria Miles-Gale had spoken to Siobhan Francis and encouraged her to reply thereafter holding the recruitment process open for an extra week whilst Siobhan Francis mulled over applying. In the event she did not apply. The role was advertised by the Respondent. We find that had she wanted to the Claimant could have applied for this role. She did not. Her complaint appears to be limited to the fact that Siobhan Francis was encouraged to apply whereas she was not. She says that this is direct discrimination because of age and disability. Events between February and April 2021

[191]One of the tasks that the Claimant was asked to undertake was to send out cards to patients who had contracted Covid but had been discharged and recovered. The cards were sent out in the name of Kathryn Halford. Victoria Miles-Gale was informed that when the Claimant had delivered a batch of these cards to Kathryn Halford’s PA she had said that the printing on the labels was incorrect including inverting first and second names and the addresses being at angles. This led her to be concerned about the Claimant’s attention to detail.

[192]On 4 March 2021 the Claimant sent Victoria Miles-Gale draft minutes of a PCC meeting that had been held on 25 February 2021. Victoria Miles-Gale was concerned about the quality of these minutes. Contrary to her usual practice she amended them using the tracked changes function of Microsoft word. We are able to review the changes made for ourselves. The changes made to parts of the document are extensive. Victoria Miles-Gale pointed out some basic errors such as unfinished sentences and inconsistencies with the use of initials. She re-wrote some passages entirely. A comparison between the draft produced by the Claimant and the amended version shows that the input of Victoria Miles-Gale considerably improved the version produced by the Claimant. Victoria Miles-Gale in her witness statement gives her opinion that the minutes produced by the Claimant lacked clarity and were of poor quality. We find that there was a reasonable basis for that opinion.

[193]Upon receipt of Victoria Miles-Gale’s original comments and amendments the Claimant sent a copy to Antoinette Webber. She asked whether the amount of amendments was normal. Antoinette Webber responded saying ‘pretty normal’. Whilst we find that Victoria Miles-Gale had high standards we do not regard her proposed amendments as picky or unfair.

[194]The Claimant sent a further draft of the minutes to Victoria Miles-Gale on 8 March 2021. After further discussions and feedback a final version was produced that was ultimately considered satisfactory by Victoria Miles-Gale. We find that the final version was a considerable improvement to what had been originally submitted.

[195]On 10 March 2021 the Claimant was asked to take minutes at a meeting called to discuss a deceased patient. There was an issue with the identity of the deceased that may have had significant legal ramifications. As such, it was important that the discussion was fully and accurately recorded. The Claimant sent draft minutes to Victoria Miles-Gale on the same day as the meeting. Victoria Miles-Gale then amended those minutes. Virtually no part of the Claimant’s first draft survived the amendment process. Having compared the original to the amended version we find that the Claimant’s first draft omitted a great deal of discussion. We noted that the Claimant included an exclamation mark that has no place in a professional document. The redrafted version produced a far more professional document. We find that Victoria Miles-Gale could reasonably consider that the Claimant’s minutes were not of a professional standard. A-8 - The wellbeing meeting/cancelled appraisal

[196]The way the Claimant puts her complaint in her schedule is vague. She gives a date of 12 April 2021 and says that ‘the Claimant considered that Mrs Miles-Gale did not need her in the team anymore, reasons why the appraisal was cancelled, and her job and projects to [sic] were given to Mrs Francis and other team members’. Here we shall deal only with the suggestion that an appraisal was cancelled.

[197]Because of the effects of the Covid pandemic on staff morale the Respondent had elected to dispense with its usual system of appraisals (PDR). Instead it introduced a wellbeing meeting. The proforma introduced for that purpose was almost entirely focused on physical and mental health. The Claimant completed the proforma in advance of a meeting with Victoria Miles-Gale on 17 March 2021. We shall set out our findings in respect of the information shared by the Claimant separately where we deal with the Respondent’s knowledge of the Claimant’s disabilities. A-5 Christine Matthews being appointed to assist the Claimant with the PEEAG minutes

[198]The first PEEAG meeting that the Claimant was to assist with was to be on 29 April 2021. In advance of that meeting it was necessary to prepare an agenda. The starting point for the agenda was a forward plan that had been produced in advance. We find that Victoria Miles-Gale gave the Claimant instructions as to what was expected. These included using the forward plan as a starting point. We find that she warned the Claimant that the agenda would often change right up to the meeting. We find that one reason for this was that papers that ought to have been prepared might have been delayed as well as new topics being introduced. Victoria Miles-Gale knew that she would not be in the office the following day and so suggested that if the Claimant had any queries she should ask Christine Mathews for some help.

[199]The Claimant prepared a draft agenda and presented it to Victoria MilesGale. Victoria Miles-Gale said in her witness statement that the Claimant had correctly drawn on the forward planner to prepare the agenda but that because of Covid and a decision to hold an emergency meeting there had to be some amendments. We accept her evidence because it is consistent with the notes of a further one-to-one meeting that took place on 15 April 2020. The Claimant has added to the original notes her recollection of being told ‘Sharon has [not] done anything wrong, tasks are work in progress’.

[200]After Victoria Miles-Gale pointed out that some amendments would need to be made to the draft agenda the Claimant said that she wanted it to be clear that she had gone through the agenda with Christine Mathews. She said that she did not want to be blamed for getting anything wrong. She referred to Christine Matthews as having given her ‘false information’. Christine Mathews has no recollection of assisting the Claimant but in her witness statement accepts that it was quite possible that she did. The Claimant says that she was tearful and upset. We accept that it is consistent with the evidence of Victoria Miles-Gale.

[201]The Claimant refers to this incident in her ET1. She says that she had sat with Christine Matthews to go through the PEEAG Agenda. She says that this had been complicated by the fact that the last two PEEAG meetings had been cancelled. She says: ‘The Claimant knew that she was being set up to fail with incorrect information’.

[202]After Victoria Miles-Gale had first spoken with the Claimant about the need for changes to the agenda she returned once more to speak to Victoria Miles-Gale. She then reiterated that any errors in the agenda were a consequence of the advice given to her by Christine Matthews. Victoria Miles-Gale described the Claimant as being abrupt and confrontational. We accept that description as the fact that there was a significant event is supported by the fact that Victoria Miles-Gale raised it during the Claimant’s next one-to-one. The Claimant accepts in her ET1 that Victoria Miles-Gale explained that any errors made by Christine Matthews were likely to be attributable to the fact that she had a long period of sick leave.

[203]We find that the Claimant believed, and indeed still believes, that Christine Mathews deliberately gave her incorrect information leading to Victoria Miles-Gale making corrections to the agenda. We have reached the conclusion that that belief is utterly baseless. We accept that the information given was not up to date, or perhaps just not in accordance with what Victoria Miles-Gale thought needed to be included on the agenda, but we see no reasonable basis for the Claimant believing that this was deliberate or even a serious failing by Christine Matthews. Put bluntly, the Claimant completely overacted to this matter.

[204]We find that of all the corrections that Victoria Miles-Gale needed to make to the Claimant’s work this was one piece of work where Victoria Miles-Gale understood that the Claimant was unlikely to be able to provide a polished final draft agenda. She was not concerned by the fact that she needed to make changes. That is what she told the Claimant at the time. However, what did concern Victoria Miles-Gale was the Claimant’s reaction to the changes being suggested. We find that this was very much a turning point for Victoria Miles-Gale. It was the point where she began to believe that the Claimant was not performing to the standards she expected and was unlikely to improve.

[205]Our conclusion that Victoria Miles-Gale thought that the Claimant’s response was inappropriate is supported by the fact that she brought it up at the next one-to-one on 15 April 2020. As we have said the notes of the discussion, whilst brief have been amended by the Claimant. Those notes disclose the fact that Victoria Miles-Gale had no concerns about the fact that the agenda required changes. Her concern was the reaction of the Claimant and the fact that she wanted to blame Christine Mathews for giving her the wrong information. In our view that is an entirely understandable concern. As we have indicated we find that the Claimant’s view that she had been ‘set up’ was baseless.

[206]The allegations raised in respect of this matter are claims of direct discrimination. It is said that both Victoria Miles-Gale and Christine Mathews discriminated against the Claimant because of age/and/or disability. Christine Matthews was born in 1975 and is 9 years younger than the Claimant. B1 putting pressure on the Claimant to finish the PPC and minutes and PEEAG agenda.

[207]PCC meeting took place on 25 March 2021. The Claimant sent draft minutes of that meeting to Victoria Miles-Gale on 9 April 2021. The expectation of the Respondent was that minutes would be produced more swiftly than the Claimant had managed to do. The Claimant prepared her minutes by making a recording of the meeting and then listening to that whilst she prepared the minutes. She would then ask those who had led sections of the meeting to comment on what they had said. Whilst the Claimant was not told she should not use this method, as she says in her witness statement, it took her 9 hours on 9 April 2021 just to go through the recording. In her witness statement Victoria Miles-Gale says that the minutes were of a poor standard. She identifies basic inaccuracies with the initials of attendees and also sections which did not make sense. We have reviewed those minutes for ourselves but were not provided with the final versions amended by Victoria Miles-Gale. She told us, and we accept that she spent some time making amendments. In the absence of the amended minutes we cannot make any findings about the accuracy of the Claimant’s draft. What we do note is a number of grammatical errors and the use of an explanation mark. B1 – The PPC Minutes and PEEAG Agenda

[208]The Claimant’s complaint under Allegation B1 refers both to the PEEAG agenda and the PPC minutes. She says that Victoria Miles-Gale put pressure on her to finish these by Friday 9 April 2021 when she would have known that she would not have looked at them until the Monday. The Claimant says in her witness statement that Victoria Miles-Gale put her under pressure to complete the minutes and agenda to a ‘tight deadline’. She says that she was waiting for input from managers who had attended the PPC meeting. The Claimant says that she had previously explained that she needed more time because of her disabilities. We deal with that when dealing with knowledge of disability.

[209]Victoria Miles-Gale has no recollection of asking the Claimant about the progress of either piece of work but she accepts that it is possible that she did.

[210]We find that it is probable that Victoria Miles-Gale did ask the Claimant to complete the PPC and PEEAG agenda by 9 April 2020. In respect of the PPC minutes the meeting took place on 25 March 2020. The Claimant had had a very long time to complete this task. We note that the minutes are 8 pages long with many sections containing formalities such as attendees. The balance of the document is not dense. The Claimant had a recording of the meeting and her primary role was to summarise the discussions and action points. We find that it was a perfectly reasonable instruction to complete the work by 9 April 2021. A-9 Appointing two new staff members

[211]The way the Claimant puts this allegation is that she says that Victoria MilesGale appointed Alex Nugent who was 28 to a permanent Band 6 role and Dean Hughes who was in his early 30s to a band 7 role. She says that the decision to do so was an act of direct discrimination because of age and disability. In fact Alex Nugent was 25 and Dean Hughes was the same age.

[212]There is no dispute that the Claimant’s allegation in respect of the appointment of these two men is correct. The fact that there were vacancies within the patient experience team was well known. The Claimant had been included as a recipient of an e-mail that referred to the existence of vacancies. The Claimant did not express any interest in applying for either role. Her complaint appears to be that her own role was not permanent. That is correct but she had a written reassurance that if the role was not offered to her permanently her employment would be continued even if not in that role. A one-to-one meeting on 22 April 2021?

[213]A matter of dispute before us was the question of whether there was ever a one-to-one meeting that took place between the Claimant and Victoria Miles-Gale. The Claimant says that there was no such meeting. She says that the notes that Victoria Miles-Gale has produced are therefore concocted to support her later actions. She says that they were never sent to her. In support of her position the claimant says that there had been an agreement to hold meetings every two weeks. She says that as there had been a meeting on 15 April 2021 then no meeting was scheduled for 22 April 2021.

[214]This dispute may not be as important as it appeared to be to the parties. Whilst the Claimant denied that there had been any meeting on 22 April 2021 she did not deny that many of the matters referred to in Victoria MilesGale’s note said to be of that meeting had been discussed with her in April 2021. Nevertheless we have made findings as to whether the meeting occurred as suggested by Victoria Miles-Gale.

[215]Victoria Miles-Gale says that there was a meeting. During the hearing Victoria Miles-Gale produced a screenshot of her diary which includes a 30 minute slot at 9:30 on 22 April 2021 which says, ‘Sharon Reeve 1:1’. She has given a lengthy account of what she says was discussed in her witness statement. She has produced notes which she says she completed either during or shortly after that meeting. Again during the hearing she provided the MSWord meta data for those notes. That metadata suggests that the document was created on 22 April 2021.

[216]We consider that the contents of the note provided by Victoria Miles-Gale are of assistance in determining that a meeting did take place as she has suggested. One feature of the notes however points to the opposite conclusion. The record of all other meetings have a section for wellbeing followed by sections for listing the tasks allocated and progress made. The notes produced by Victoria Miles-Gale have only one section which contains a discussion about the Claimant’s work. We have taken that into account when reaching our decision.

[217]The notes open with the statement that ‘VMG began by saying that she felt that there some issues and that she wanted to have an open and honest discussion about those…’. The section below the introductory paragraph consists of bullet points. We note that the first bullet point does not list a concern raised by Victoria Miles-Gale but says ‘SR spoke about feeling that she wasn’t trusted to do her job’. The next three bullet points refer to the Claimant’s concerns. Later in the list of bullet points is a reference to the Claimant saying that she is often doing one thing and then asked to do another. This is followed by a statement where the Claimant is recorded as saying that she is good at multitasking.

[218]We consider it highly unlikely that if the meeting did not take place Victoria Miles-Gale would write notes that included the Claimant raising her concerns and giving her explanations. When we take the content of the notes into account we are satisfied on the balance of probabilities that the meeting took place.

[219]In the meeting Victoria Miles-Gale told the Claimant of her concerns about both her work and her manner. In particular, she referred to remarks made by the Claimant about Kathryn Halford and Gary Etheridge. The Claimant did not deny making remarks about Kathryn Halford but suggested that they were commonplace. She suggested that her remark which was made to Gary Etheridge would have been understood by hm to have been light hearted. The notes record the Claimant accepting that ‘she does speak her mind’. We consider that this is accurate both as a record of what the Claimant said and of how she behaved. It chimes with her challenge to Kathryn Halford that we have dealt with above.

[220]One important matter which arose during the one-to-one meeting on 22 April 2021 concerns a comment made by the Claimant. When Victoria Miles-Gale suggested that it was inappropriate for team members to blame each other the Claimant said: ‘that you know of, to your face’. What Victoria Miles-Gale reasonably understood from this was that people were talking about her behind her back. This was entirely correct. The Claimant has disclosed text messages – for example with Antionette Webber where she was discussing Victoria Miles-Gale’s managerial style. We find that Victoria Miles-Gale was very upset to learn of this. In a note she later prepared listing her concerns about the Claimant she lists this as a matter which had an impact on her relationship with her team. We find that for Victoria Miles-Gale this comment made by the Claimant coupled with her blaming Christine Matthews for the agenda marked a turning point in her willingness to support the secondment.

[221]We find that Victoria Miles-Gale raised at least some of her concerns with the Claimant during that meeting. We find that the Claimant continued to defend herself as she did not regard any of this concerns as being valid. The meeting did end with the suggestion that both parties should reflect upon what had been discussed.

[222]We find that the Claimant must have been aware at this stage that Victoria Miles-Gale had serious concerns about her work and her attitude. We find that in addition to the formal one to one meetings Victoria Miles-Gale gave the Claimant feedback about her written work and her work in general which she ought to have recognised indicated that her work was not up to Victoria Miles-Gale’s expectations.

[223]We find that in fact, in parallel with raising her concerns with the Claimant Victoria Miles-Gale had already discussed her unhappiness with managing the Claimant with Gary Etheridge. Gary Etheridge met with Victoria MilesGale on 15 April 2021. A short note of that meeting is dated 7 April 2021 but we accept Gary Etheridge’s explanation that that is an error. Nothing turns on it. The note reveals that one of the things that was contemplated was bringing the Claimant’s secondment to an end. The meeting of 23 April 2021

[224]A meeting was arranged on 23 April 2021 in order to discuss the issues raised by Victoria Miles-Gale. That was attended by Victoria Miles-Gale, Gary Etheridge, Christine Smith and Alan Wishart. Christine Smith was included because the Claimant had been described as working on a secondment and, in theory, if the secondment was ended prematurely she would revert to being line managed by Christine Smith.

[225]It has always been the Claimant’s case that Kathryn Halford attended this meeting and was a decision maker. All the participants we have identified above stated that Kathryn Halford was not present. When faced with that evidence Ms Pankowski explored whether Kathryn Halford had attended remotely. All participants and Kathryn Halford denied that she had. We have no idea why the Claimant believes that Kathryn Halford did attend that meeting. It appears that the Claimant has convinced herself of the theory relied upon by Antionette Webber that Kathryn Halford had instructed Victoria Miles-Gale to engineer the Claimant’s dismissal. We are satisfied that Kathryn Halford did not attend the meeting. That is not to say she was unaware of it. We find that she had no input into Alan Wishart’s decision that he would meet with the Claimant and discuss an exit package. We find that he made that decision himself.

[226]In preparation for the meeting of 23 April 2021 Victoria Miles-Gale prepared a list of her concerns. The Claimant has challenged the validity of the document produced by Victoria Miles-Gale and points to the fact that it includes matters that post-dated that meeting. Victoria Miles-Gale’s explanation for that is that she continued to add to her list of complaints after the meeting. We accept that explanation. We note that several of the matters within that document had been discussed at the meeting between the Claimant and Victoria Miles-Gale on 22 April 2021. The matters that arose after 23 April 2021 are separated with a black line.

[227]A matter that Gary Etheridge mentions in his statement was that Victoria Miles-Gale had relayed that the Claimant had said that staff were talking about her behind her back. He said that that had made Victoria Miles-Gale tearful. We find that this was raised on 23 April 2021 and not earlier.

[228]At the meeting Victoria Miles-Gale set out her concerns about the Claimant’s performance and attitude. It was the Claimant’s case that at this stage Victoria Miles-Gale had a settled view that the Claimant should not be working in her team. She draws some support for that from the reference on the note of the meeting of 15 April 2021 that the secondment would end. We find that the possibility of the secondment ending was recognised by everybody at that meeting as a possible means of addressing Victoria MilesGale’s concerns. We accept that this was her preferred option and that she articulated that. That is what Alan Wishart says in his witness statement. Despite having this as her preferred option Victoria Miles-Gale anticipated that she might be instructed to performance manage the Claimant.

[229]At the meeting four possibilities were discussed. The first was that the Claimant remained where she was but a performance management process was instigated. The second was that an alternative role was sought. The third, overlapping with the second, was that a search for a role in the corporate nursing team was identified. The final matter discussed was an exit package, What in fact transpired was that Alan Wishart indicated that he would deal with the matter. He said that he would discuss the possibility of alternative roles and potentially an exit passage. Victoria Miles-Gale says, and we accept, that she was very relieved that she would not have to take the initiative in dealing with the Claimant. A-4 The meeting of 5 May 2021

[230]Alan Wishart met with the Claimant on 5 May 2021. There is no record of that meeting. However, Alan Wishart and the Claimant give an account that is broadly consistent in respect of the key points. We find that Alan Wishart opened the conversation by informing the Claimant that Victoria Miles-Gale had raised concerns about her performance and wished to bring the secondment to an early close. We accept Alan Wishart’s evidence that the Claimant pushed back against the suggestion that her performance could reasonably have been criticised. He says, and it echoes with the way in which the Claimant put her case before us, that she said that her one-toone meetings with Victoria Miles-Gale had not highlighted any issues.

[231]In response to the criticisms of her performance the Claimant raised the fact that she was experiencing symptoms of the menopause. We find that she linked these with her performance. However, in common with the way that she put her case, she did not fully accept that there were any justifiable performance concerns. We find that she did complain about what she perceived to be unreasonable deadlines.

[232]Alan Wishart then raised the possibility of an alternative role. However we find that he did so very briefly. We accept his evidence that he indicated that as this had been tried before he did not think that it would be successful. He then turned to the question of whether the Claimant would leave the Respondent’s employment under a settlement agreement. In her witness statement the Claimant says that Alan Wishart suggested that this would allow her to leave with dignity. This is consistent with what Alan Wishart says in his statement and in his oral evidence. The proposal that Alan Wishart made was that the Claimant would leave the organisation with the equivalent of 6 month’s salary.

[233]One matter which is disputed is whether Alan Wishart said that the Claimant would not be offered any training as it would be a ‘waste of money’ as she would be retiring soon. We do not accept that this was said by Alan Wishart nor that it was implied by anything he did say. We note that whilst the Claimant set out an account of what happened in this meeting in her formal grievance submitted on 25 May 2021 she does not refer to this comment being made during the meeting. In her detailed ET1 the Claimant gives an account of the meeting but again does not mention this comment. We find that the Claimant believes that she was not given training because of her age. She says that in her ET1. She has projected that belief onto Alan Wishart and has come to believe that he used the phrase she has suggested.

[234]When Alan Wishart gave evidence the tribunal raised with him whether he considered it appropriate to raise the possibility of an exit package with an employee where there had been no formal performance management. He gave a robust response. He told the Tribunal that he had considerable experience. He explained that it was his experience that performance management was a traumatic experience for employees. He indicated that he had found that a discussion about an alternative exit package was often welcomed and was in his view often better for everybody. He told us, and we accept, that he believed that having worked with the Claimant in the past he had a good relationship with the Claimant. He told us, and we accept that he liked the Claimant on a personal level and thought that was reciprocated. We accept that it was with this in mind that he arranged to meet with the Claimant on 5 May 2021.

[235]It is the Claimant’s case that it was only at this meeting that she learned that there were any concerns about her performance within the Patient Experience Team. The Tribunal do not accept that that is factually correct. The Claimant was aware that Victoria Miles-Gale had edited and corrected almost all the written work that she had produced. She was aware, because Victoria Miles-Gale had told her on 15 and 22 April 2021 that her complaints about Christine Matthews giving her ‘wrong information’ were thought to be inappropriate. She was aware, because she was told on 22 April 2021 that there were concerns about the way she spoke about managers. What we would accept is that despite the fact that the Claimant’s previous four managers had all had concerns about her performance to this point nobody had instigated a formal performance management process.

[236]In assessing whether the steps taken by Alan Wishart were the bolt from the blue that the Claimant has suggested it is necessary to compare what happened with the formal policy in place within the Respondent trust for dealing with performance and capability issues. That is entitled Managing Poor Performance Policy and Procedure.

[237]The policy suggests that to monitor performance staff should have a regular one-to-one at least once a month. The purpose of that is said to be to ensure a ‘timely and effective discussion about roles and responsibilities, ensures staff receive positive feedback on good performance and can prevent concerns escalating ‘ (our emphasis). We find that Victoria Miles-Gale followed that aspect of the policy fully. When the Claimant was working for Kathryn Halford she was managed by Christine Smith. Whilst there were several meetings between Christine Smith and both the Claimant and Kathryn Halford the feedback that the Claimant received was reactive when things had gone amiss.

[238]The policy places emphasis on defining concerns when they arise against reasonable standards and expectations. It is suggested that concerns are illustrated by examples. The policy envisages that where there are concerns the performance management process would be utilised within 3 months and resolved within 6 months.

[239]The policy describes an ‘informal stage’. Notwithstanding any informality the policy suggests that the tone of the meeting reflect the fact that it is a stage of the performance management policy. It suggests that the manager will ensure that the member of staff understands the requirements of their post; will identify any obstacles to performance and will identify support such as training or development. We consider that the spirit if not the letter of the policy would require the manager to let the employee know that the meeting is being conducted by reference to the policy.

[240]The evidence given by the Respondent’s management witnesses was that almost throughout the Claimant’s employment there were concerns about the Claimant’s performance. These had never been escalated through this policy. Part of the reason for that we find is that the Claimant moved jobs from working with Alan Wishart to getting a role with Kenye Karemo and then to a role with Kathryn Halford. During the hearing the tribunal referred to this as pushing a problem down the line. We would not wish to suggest that raising performance issues with the Claimant would ever have been easy. Her response to the slightest criticism is very defensive. That may have meant that any earlier intervention would have proved futile. However, whether it would have been, is a matter of speculation. What we can say is that had there been an earlier intervention the Claimant would have been in no doubt at all about the concerns about her performance.

[241]The meeting ended with the suggestion, made by Alan Wishart, that the Claimant should go away and reflect upon the discussion. It was intended that there would be a further meeting in due course.

[242]At some point during the meeting Alan Wishart told the Claimant that he was not having a ‘protected conversation’. We conclude that he said this because he wanted the Claimant to regard what he was saying as a discussion between friends rather than a more formal process. However, despite his words, the purpose of the meeting was quite plainly to instigate a conversation about whether the Claimant would be willing to leave the Respondent’s employment under the terms of a settlement agreement. A-10, A13 The Claimant’s discussion with Victoria Miles-Gale on 6 May 2021

[243]The Claimant went to see Victoria Miles-Gale on 6 May 2021. By this time a further meeting between her and Alan Wishart had been arranged for the following day. We find that the Claimant was emotional and upset. We accept the evidence given by Victoria Miles-Gale that the Claimant did most of the talking. It is agreed that the Claimant did raise the issue of her menopausal symptoms on this occasion. Victoria Miles-Gale says in her witness statement that this was raised in an offhand manner and not as a central part of the conversation. The Claimant suggests that she attributed any failures in performance to her menopause and mental health symptoms. We note from the Claimant’s own timeline that was used as the foundation of her grievance that the Claimant records that she told Alan Wishart that ‘nowhere is there any performance concerns’. Again this is consistent with the way in which the Claimant has put her case. She does not acknowledge any performance issues. She has blamed Christine Mathews for giving her ‘wrong information’ and in her timeline suggests that she is being ‘picked on’. In the light of that we accept that the Claimant made a direct link between her menopausal symptoms and any errors with her work but accept Victoria Miles-Gale’s account that this was said in passing.

[244]It is agreed that during this meeting on 6 May 2021 that the Claimant asked Victoria Miles-Gale for ‘another chance’. Victoria Miles-Gale accepts that she was non-committal. The Claimant says that Victoria Miles-Gale suggested that she take a band 4 role. We accept Victoria Miles-Gale’s evidence that she did not say this in terms on that day. That said there was a clear implication from what Victoria Miles-Gale had imparted to Alan Wishart that she believed that the Claimant was not coping with a band 4 role. We find that the Claimant has surmised that this was Victoria MilesGale’s view and has reached a firm view that that opinion was voiced aloud when in fact it was not. Further meeting with Alan Wishart

[245]On 7 May 2021 the Claimant met with Alan Wishart. She indicated that she would be prepared to accept a financial settlement but thought that that should be the same as her contractual entitlement to a redundancy payment, That would have been 17 months’ pay. Alan Wishart told her that he doubted that a figure in that region would be approved. He says, and we accept, that he raised the issue of redeployment. He says that he discussed the possibility of a band 4 role. We find that it is this conversation that has lead the Claimant to believe that Victoria Miles-Gale had said that she should do a band 4 role.

[246]As we have indicated above the Claimant spent some time in this meeting suggesting that she had done ‘nothing wrong’ and that she had the evidence to prove it. It was not her position that her disabilities had had an impact on her performance at this stage.

[247]The Claimant indicated that she was not prepared to leave her employment for 6 month’s salary. We find that this led to a short conversation about what would happen if the Claimant stayed. Alan Wishart told her that she would be expected to continue working for Victoria Miles-Gale and that there might be a performance management process.

[248]Alan Wishart reported the outcome of his discussions with the Claimant back to Mrs Halford and Victoria Miles-Gale. Mrs Halford suggested the Respondent increased its offer to the Claimant. Alan Wishart was reluctant to do this but ultimately agreed. He felt that the proposal was higher than had been the case with comparable situations. He agreed to make an offer to the Claimant of 10 months’ pay to leave the Respondent. He met with the Claimant on 13 May 2021 and made that offer to the Claimant. The Claimant maintained her position that she would not agree a settlement of less than 17 month’s pay. She said that she had been speaking to a trade union representative Laura Fingleson and suggested that Alan Wishart speak with her. That conversation did not lead to any resolution.

[249]The Claimant had raised her concerns about having a meeting with Victoria Miles-Gale on 13 May 2021. Alan Wishart instructed Victoria Miles-Gale to cancel that meeting in the light of what were still ongoing negotiations.

[250]When the negotiations failed to reach any resolution Alan Wishart proposed a meeting between the Claimant, Victoria Miles-Gale and himself. He had intended that meeting to be an opportunity for Victoria Miles-Gale to explain the concerns that she had about the Claimant’s performance. Ultimately the Claimant declined to attend the meeting. Alan Wishart then sent an e-mail to Victoria Miles-Gale, Kathryn Halford and Gary Etheridge. He informed them that his view was that his chances of reaching an informal resolution with the Claimant were ‘pretty slim’. He said: ‘the only route I think that we are able to go down is to instigate the formal capability process’. He went on to suggest that there was ‘the possibility of an exit after 6 weeks’. He discussed the possibility of accepting the Claimant’s proposal setting out his view that it was inappropriate. He raised the possibility of finding the Claimant an alternative role. Referral to Occupational Health

[251]On 21 May 2021 the Claimant sent an e-mail to Victoria Miles-Gale asking her to make a referral to the Respondent’s Occupational Health advisors. She gave no detail of the reasons for the request other than saying it was for her ‘health and wellbeing’. Victoria Miles-Gale organised a meeting to complete the referral. That meeting took place on 26 May 2021. The referral that was completed did not include any further reasons why the Claimant thought it was necessary. We accept Victoria Miles-Gale’s evidence that the Claimant did not share any additional information when they met to discuss the referral. Victoria Miles-Gale included, as a further question for consideration the following: ‘This is the first time that Sharon has mentioned her wellbeing in this context and I am keen to understand more about this and how to support her. She has not mentioned stress in seeking this referral but I will be asking her about this at her next 1:1 and if stress is mentioned as a factor will undertake a stress risk assessment’. This adds further support for our conclusion above that the Claimant had not directly linked issues with her performance to her menopausal symptoms.

[252]On 28 May 2021 the Claimant was informed that the occupational health assessment would take place on 3 June 2021 by telephone. In her witness statement she says that she immediately informed Victoria Miles-Gale that she would take this telephone call at home for reasons of privacy and the fact that the office was noisy. Victoria Miles-Gale denies this conversation took place. We do not accept the Claimant’s account. At 02:32 on 3 June 2021 the Claimant e-mailed Victoria Miles-Gale and said that she had the occupational health assessment and would come into work afterwards. Victoria Miles-Gale responded to the Claimant saying: ‘I am supportive of you having your OH appointment in whichever way you feel most comfortable’. She went on to suggest that it was her reasonable expectation that the Claimant would have asked her in advance. The Claimant’s response to this e-mail did not include any suggestion that she had already mentioned her wish to take the OH appointment at home. In fact she apologised. Even when the Claimant has annotated that e-mail later she did not include any suggestion that she had discussed taking the appointment at home on an earlier occasion. We find that if she had already told Victoria Miles-Gale that that was what she intended to do she would have expressly referred to this being a reminder. She did not. It is highly unlikely that the Claimant would feel the need to send a reminder of something she had already arranged in the small hours of the morning. This is an example of the Claimant’s strong belief in her own case interfering with the accuracy of her evidence.

[253]The occupational health report included the following remarks: 253.1. ‘Sharon advised that she has been experiencing menopausal symptoms for the last four years, for which she is under the care of her GP for’ 253.2. Sharon advised that although she is experiencing menopausal symptoms, she does not believe that her symptoms impact negatively on her work attendance or performance’. 253.3. Sharon advised that she is suffering with work related stress due to her perception that she is being bullied by senior management.

[254]The advice that was included in the occupational health report was that a stress risk assessment was undertaken, that additional support be given to the Claimant to assist with her menopausal symptoms and that she should be managed by another line manager whilst her work related concerns were ongoing.

[255]On receipt of the report the Claimant sent an e-mail to the occupational health advisor. She suggested two revisions to the report. She suggested that the reference to her saying that her menopausal symptoms did not affect her performance was amended to say that they are causing her to be slower in the delivery of her work. She also said that there should be a reference to her saying she had been emotionally bullied. Those suggestions received a robust response from the occupational health advisor who declined to amend the report. We find that the advisor was confident that she had accurately recorded what she had been told. We find that it was really only at this stage that the Claimant was linking her performance with her symptoms. D1, B15 – The Claimant volunteering to work on the wards and being performance managed

[256]Victoria Miles-Gale had asked her team if there were any volunteers to go onto the wards and communicate face to face with patients who were being discharged. On 24 May 2021 the Claimant sent Victoria Miles-Gale an email saying that she was happy to go onto the wards ‘if they are safe’.

[257]On 25 May 2021 at 08:04 Victoria Miles-Gale sent the Claimant an e-mail that invited her to attend a meeting as the first part of the formal performance management process. The Claimant submitted a formal grievance by e-mail at 16:42 on 25 May 2021. The grievance raised complaints manly about events spanning the period 8 April 2021 to 7 May 2021 but started with a more generalised complaint that she had been set up to fail by Kathryn Halford. The Claimant suggests that the instigation of the formal performance management process was a response to her grievance. We find that cannot be the case. The decision to follow the performance management process was taken some time before the Claimant’s grievance was sent when it had become apparent that the attempts to reach settlement agreement had failed. Victoria Miles-Gale’s letter to the Claimant is dated 24 May 2021 and we are satisfied that it was written on that day and sent by e-mail well before the Claimant submitted her grievance.

[258]On 28 May 2021 Victoria Miles-Gale responded to the Claimant’s offer to do some work on the wards. She thanked the Claimant for volunteering and proposed that they discussed it the following week. She said that she would really like to give the Claimant the opportunity but was conscious that she had just made a referral to OH and that she had just set up a performance management meeting. She said that she wished to support the Claimant and did not want to put her under any further pressure. She proposed a discussion at the next 1:1 meeting. In fact that meeting never took place as the Claimant’s line management was changed.

[259]In her witness statement the Claimant couples this e-mail exchange with a suggestion that she was ‘humiliated in front of the team’. That is an allegation that Antoinette Webber repeats in her witness statement. We find that the Claimant’s e-mail was the first time she had volunteered for this work and that Victoria Miles-Gale’s response was the first time she had expressed reservations. Had that not been the case it is likely that one or the other of the e-mails would have referred to a previous conversation. We believe that the Claimant is conflating this with her concerns about how her departure was explained to the team. We shall deal with that separately. The fact that Antionette Webber saw fit to lend her support to a suggestion that there was some humiliation in front of the team is one of a number of matters in her evidence that suggest that she is willing to say whatever necessary to support the Claimant. B6, B8 Further issues with minutes

[260]The Claimant was required to take the minutes for the PPC meeting that took place on 27 May 2021. As was her practice the Claimant wanted a full audio recording of the meeting. In advance of the meeting, on 24 May 2021 she sent an e-mail to Victoria Miles-Gale suggesting that she could either leave her telephone with Victoria Miles-Gale to record the meeting or she could work from home after 1:30pm in order that she could record the meeting at home. Victoria Miles-Gale responded saying that she was happy for the Claimant to record the meeting ‘whichever way best suits you’. She went on to say that she knew that the Claimant was on leave on Friday 28 May 2021 and that the Monday was a bank holiday. She asked the Claimant if she could produce the final version of the minutes by 2 June 2021. She said: ‘If there are any difficulties with this please do let me know’. The Claimant responded by saying ‘will do’.

[261]On 1 June 2021 the Claimant sent a further e-mail. She said that she was hoping to complete the minutes by the following day; ‘if I can block out the noise in the office’. She went on to suggest that she was impacted by having to do post discharge calls to patients. Victoria Miles-Gale replied saying that she had asked that the calls be split between the team which in her view would allow the Claimant some time to dedicate to the minutes. The Claimant responded informing Victoria Miles-Gale that as she had 17 post discharge calls to make she did not expect to finish the minutes the following day. Victoria Miles-Gale then took further steps to allocate the post discharge calls to other team members freeing up the Claimant so that she could complete the minutes. She confirmed that she had done so by e-mail. The Claimant responded by saying ‘that’s great Victoria’.

[262]The formal meeting to discuss the Claimant’s performance that was intended to take place on 1 June 2021 never in fact took place. It appears that the reason for that was that the Claimant’s trade union representative was unavailable.

[263]The Claimant says that at some point during the afternoon or 2 June 2021 Victoria Miles-Gale spoke to Christine Matthews and Siobhan Francis and asked whether the minutes would be completed before the Claimant left work. The Claimant does not give the source of her information and Victoria Miles-Gale, Christine Matthews and Siobhan Francis have no recollection of the conversation. However we find it likely that Victoria Miles-Gale would have come into the office to see whether the Claimant was likely to meet the deadline that had been set. Victoria Miles-Gale says in her witness statement that the delays and need for her to check the Claimant’s work impacted on her own workload. She says, and we accept, that she would strictly schedule her own workload and was finding that the effort of dealing with the Claimant meant that she had to work additional hours. Against that background we find it very likely that she would want to check on the Claimant’s progress.

[264]The Claimant sent Victoria Miles-Gale an e-mail at 17:32 on 2 June 2021 to which she attached the minutes of the PCC meeting that had taken place on 27 May 2021. Victoria Miles-Gale made some amendments to the minutes and informed the Claimant of that on 3 June 2021. The Claimant produced a second draft later that day. The minutes are just over 6 pages long.

[265]We can review the changes proposed to the minutes for ourselves. The proposed amendments are handwritten. The classification of those amendments as scribbling by the Claimant is unjustified. The minutes were produced by the Claimant when she knew that there were concerns about her performance. We find that the deadline imposed by Victoria Miles-Gale was not in any sense unreasonable. She needed to circulate the minutes to others. When the Claimant raised the issue of the post-discharge telephone calls Victoria Miles-Gale took steps to relieve the Claimant of some of these duties finally removing them all together. We find that by this time the Claimant had received a great deal of feedback from Victoria Miles-Gale and ought to have been in no doubt about the standards required. The first draft of the minutes has a few sentences that are poorly phrased and make little sense. There are a number of what are probably typing errors. In the light of these we find it unsurprising that Victoria Miles-Gale thought that the minutes were below par and required corrections.

[266]One aspect of the complaint that the Claimant makes about the correction of the minutes is a suggestion that parts of the minutes suggested by Christine Mathews were not corrected whereas the parts that she had completed were. We accept the evidence of Victoria Miles-Gale that when she was correcting the minutes she would not have known who was responsible for any section. D3 Telling the Claimant that she was not doing her job quickly enough/properly

[267]The Claimant has attributed this allegation to a conversation that she says took place on 3 June 2021. The context she gives is that she had sent the second version of the PCC minutes of the meeting that took place on 27 May 2021 to Victoria Miles-Gale. She says that she was still waiting for information from three people, John Mealey, Annette Webber and Lucy Boito. She suggests that Victoria Miles-Gale was pressurising her to complete the minutes and made further revisions to them. This is set out at paragraphs 152 to 157 of her witness statement.

[268]It is clear from the references to the bundle included in the Claimant’s witness statement that she is confusing the timing of some e-mail correspondence. She suggests that after she had completed the initial amendments proposed by Victoria Miles-Gale she received an e-mail saying that more changes were required and suggesting a catch up when she was in the office. In fact the e-mail sent by Victoria Miles-Gale at 09:57 on 3 June 2021 which suggested a catch up when she was in the office referred to her original revisions to the Claimant’s first draft and not further revisions. The second version of the minutes was sent to Victoria MilesGale at 17:17 on 3 June 2021. The Claimant has altered the original the text of her e-mail to Victoria Miles-Gale to bold font in the version she has included in the bundle. She did say that the second draft was still not complete as she was awaiting information. In her annotations to that e-mail she says that she never received any amendments back from Victoria MilesGale as she left the team. We find that that annotation is correct.

[269]The only opportunity that Victoria Miles-Gale had to have commented upon the Claimant’s work in relation to these minutes was during the day on 3 June 2021 after the Claimant arrived at work. The Claimant says that during the day on 3 June 2021 she became overwhelmed in the office causing her colleagues to show concern. We accept that. There is an abundance of evidence that supports the suggestion that the Claimant became upset when she was criticised. We would accept that when the Claimant saw the extent of the amendments to her first version of the minutes she would have realised that Victoria Miles-Gale would have formed the view that the minutes were not of a good standard. The question we are left with is whether Victoria Miles-Gale expressly said as much. She does not recall doing so. The Claimant has certainly not recalled the sequence of events correctly in her witness statement. This, together with our other findings that touch on the Claimant’s credibility lead us to the conclusion that there was no conversation when Victoria Miles-Gale expressly criticised the Claimant’s work on that day.

[270]In her witness statement when talking about the PCC minutes of 27 May 2021 Antoinette Webber uses the same unjustified hyperbole as the Claimant describing Victoria Miles-Gale of scribbling on the minutes. She also suggests that the Claimant had relayed to her that in relation to these minutes Victoria Miles-Gale had said, in response to the Claimant saying that she had asked Christine Mathews for advice, that Christine Matthews had not done the PPC meeting for a long time. She says that she knows this to be false. The discussion about Christine Mathews not having done the PPEAG agenda for some time took place in April. We find that Antionette Webber is simply trying to say anything she believes will assist the Claimant. A15 The change of line manager and Siobhan Francis taking over support of the PCC

[271]As we have found above one recommendation made by the OH advisor was that the Claimant be line managed by someone other than Victoria MilesGale until her grievances were resolved. The Claimant informed Victoria Miles-Gale of this. During that discussion the issue of what team members would be told was discussed. We find that it was agreed between the Claimant and Victoria Miles-Gale that the team would be told that the Claimant was changing teams during the grievance process. We reach that conclusion because that is consistent with the notes made by the Claimant on the contemporaneous documents.

[272]The Claimant’s last day of reporting to Victoria Miles-Gale was 3 June 2021. On 4 June 2021 Victoria Miles-Gale sent the members of the PCC the minutes of the meeting held on 27 May 2021. In her covering e-mail she told the members of the PCC that: ‘there have been some changes in my team and Sharon Reeve will temporarily not be supporting Patient Experience…..Siobhan Francis will be providing some support for the PCC and Alex and Chris will also both be available…’. The Claimant says that this made her feel humiliated, worthless and unwanted. The context of the e-mail is that the Claimant had accepted the suggestion made in the Occupational Health report that, pending resolution of her grievance, she would change her line manager. This meant that she was no longer available to support the PCC. It was inevitable that the PCC would have to be told that others would be doing the work. We find that this e-mail sent by Victoria Miles-Gale is appropriately discrete and does no more than inform the PCC members who would be providing administrative work going forward. B9 Informing the team that the Claimant was being performance managed.

[273]The Claimant says that on 14 June 2021 Victoria Miles-Gale told team members that she was being performance managed. In her witness statement the Claimant includes in her objections to this her assertion that ‘there were no issues with work performances’. Victoria Miles-Gale denies that she told anybody about the Claimant being performance managed.

[274]The tribunal was provided with a number of text conversations that the Claimant had with other team members. It is clear to us that the Claimant is seeking information about the reasons that they were given by Victoria Miles-Gale for her leaving the team. Siobhan Francis told the Claimant that Victoria Miles-Gale had informed her separately to other team members that she had brought a grievance. She says that Victoria Miles-Gale had said that she did not know whether the grievance was about her or more senior managers. She had said that the Claimant doesn’t feel comfortable in the team. We find that that message was exactly what the Claimant had agreed would be imparted to the team. The Claimant had provided text messages between herself and Mia Sidor. Mia Sidor said that Victoria Miles-Gale had not disclosed any details about the grievance. When the Claimant specifically asked whether Victoria Miles-Gale had told her she was being performance managed Mia Sidor said that she did not. She did suggest that Victoria Miles-Gale said that she had identified some issues with the Claimant’s performance. By asking her fellow team members whether they had been told she was being performance managed the Claimant is giving them the very information she complains was improperly broadcast by Victoria Miles-Gale.

[275]The Claimant relies on voice notes from Antoinette Webber. She has transcribed those messages. The transcripts say that Antoinette Webber said that Victoria Miles-Gale ‘must have’ mentioned performance management. She uses that phrase four times. We find that that is somewhat different from Antoinette Webber telling the Claimant that Victoria Miles-Gale said in terms that she had commenced a performance management process.

[276]Having regard to the evidence as a whole we are not satisfied that the Claimant has established that it is more likely than not that Victoria MilesGale referred to the fact that she was being performance managed. We are satisfied that the Claimant was prepared to talk about this with those members of the team that she regarded as her allies. B7 – Sending intimidating e-mails

[277]The Claimant left Victoria Miles-Gale’s team on 3 June 2021. Up to the point she left the team she had been working on the post discharge calls made to patients. In order that the effectiveness of the program could be monitored a record of the calls was maintained on a spreadsheet. Dean Huges, a Patient Experience Manager was putting together a proposal for extending the program. On 14 June 2021 he sent an e-mail to the Claimant asking her if she had e-mails that showed the calls that had been made in March 2021. He said that he could not see these on the spreadsheet. His e-mail is written in casual and friendly terms.

[278]The Claimant responded to Dean Hughes on 16 June 2021. Her response is also in very friendly terms and refers to Dean Hughes having just come back from holiday. Her e-mail appears to accept that there is some incomplete data on the spreadsheet. She says that this was something on her to do list. She did attach the e-mails that had been requested to her response and directed Dean Hughes to a folder on a server where the email correspondence had been saved. At this stage he forwarded the e-mail chain to Victoria Miles-Gale.

[279]Victoria Miles-Gale sent the Claimant an e-mail on 17 June 2021. It is this e-mail that the Claimant has described as intimidating. Victoria Miles-Gale says: ‘Do you have any information on why there is no date [sic] for the last two weeks in March? We are going to have to highlight this in the report and will be expected to provide an explanation. Was there anything going on? Were Julie or Monalisa on leave or anything like that that would have impacted on us having the data. This is the first time I have been made aware of this so I do need to be able to explain this.’

[280]We do not accept that a reasonable recipient of this e-mail could possibly have regarded to as intimidating. It starts with a request for information. Victoria Miles-Gale then goes on to posit that there may be good reasons why the data is missing. There is no mention of any failure by the Claimant. The Claimant’s response sent on 17 June 2021 is somewhat defensive. She says, ‘the March spreadsheet was in the folder’. However, she accepts that the spreadsheet that she had attached to the second of two e-mails that she sent was a different spreadsheet because it had been logged in a different way to subsequent months. Victoria Miles-Gale did not respond directly to the Claimant but asked Dean Hughes to ‘catch up’ with the Claimant and arrange a time where they could sit down together and have the Claimant explain where the data could be found. It is evident from Dean Hughes reply that he had not located the data and was anxious to complete the task. He agreed to arrange to meet the Claimant to do this.

[281]We find that the purpose of Victoria Miles-Gale’s e-mail to the Claimant is self-evident from its content. It is not intimidating, nor is it critical. We find that the Claimant has completely over-reacted to this e-mail and that her response evidences a loss of perspective.

[282]The Claimant commenced her first claim, case No: 3204918/2021 on 30 June 2021.

[283]The Claimant became unwell and went on sick leave on 28 July 2021. She makes no complaints about any events at work between 17 June 2021 and 28 July 2021 when she was working under new line management as a Staff Experience and Wellbeing Project Officer.

[284]The Claimant issued her second claim Case No: 3204751/2022 on 19 August 2022. The claims that are included in that second claim form flow from what the Claimant says was her (constructive) dismissal. She says that the dismissal (if that is what it was) is unfair, wrongful (she claims notice pay) and discriminatory. The particulars of claim, and the understanding of the parties was that the breach of contract upon which the Claimant relied started with the events relied upon in the first claim. Thereafter the complaints set out in the Claimant’s ET1 concern the grievances that the Claimant brought. The case has been extensively case managed. At a hearing before EJ Burns the parties agreed a list of issues. That set out the scope of the alleged breach of contract that was the foundation of the suggestion that there was a dismissal. It confirmed that the only matter said to postdate the discrimination claims brought within the first claim was the outcome of the grievance his was received on 26 November 2021. We consider that that is consistent with the manner in which the claim is pleaded in the ET1 and, in any event, given that the list of issues was the subject of agreement between representatives, we should treat any further allegations of breach of contract as having been abandoned by the Claimant. It follows that we need only deal with the grievance process and outcome.

[285]As we have said above the Claimant brought her first grievance on 25 May 2025. The grievance was relatively straightforward. The Claimant complained that Victoria Miles-Gale had criticised her in relation to the PPEAG agenda on 8 and 15 April 2021. She then complained of the events leading to and including the meeting with Alan Wishart. Finally she complained about what she said Victoria Miles-Gale said when they met on 6 May 2021.

[286]As we have set out above the Claimant had informed several of her colleagues that she had brought a grievance and sought their support asking them to provide her with statements both before and after she submitted her grievance. Text messages that we have seen show that the Claimant was making copies of documents to support her complaints.

[287]The Claimant’s grievance was acknowledged on 25 May 2021 by Soofiya Idress who was then the Head of Employee Relations and Partnership Relations.

[288]On 18 June 2021 the Claimant submitted a second grievance. That grievance complained of the following: 288.1. Victoria Miles-Gale’s e-mail sent on 3 June 2021 in response to the Claimant informing her that she would attend her OH appointment from home; and 288.2. The fact that a stress risk assessment was recommended by OH and that had not at that stage taken place; and 288.3. A complaint that on 14 June 2021 Victoria Miles-Gale had informed team members that the Claimant was going to be performance managed.

[289]A decision was taken that the grievance would be investigated by an external investigator. The reasons for this included the fact that the complaints made by the Claimant included complaints made against Alan Wishart and Kathryn Halford whose seniority made it inappropriate for the grievance to be investigated by anybody below their level in the Respondent’s structure. The external Investigator Janet King was identified on 18 June 2021 and terms of reference were agreed by 1 July 2021. Caroline Roberts, who is a non-executive Director of the Respondent was identified as the grievance manager. In that role she was required to be the final decision maker. We find that she was exceptionally well qualified for that role. She had a long track record of acting at a very senior level in the field of employment relations at the highest levels. When informed of her appointment the Claimant questioned her independence. Caroline Roberts declined to step aside from the role saying, entirely reasonably, that she was sufficiently independent to be able to fairly adjudicate on the grievance.

[290]The process adopted by Janet King was that she interviewed all witnesses. Thereafter she drew up a statement of what each person had said and sent it to them inviting any comments. Once the statement was finalised she took that as the evidence of the witness unless she had additional questions.

[291]Janet King interviewed the Claimant on 7 July 2021. The scope of the Claimant’s complaints about her treatment by senior managers was identified by Janet King. The Claimant identified Kathryn Halford, Gary Etheridge, Alan Wishart and Victoria Miles-Gale as the people she was complaining about.

[292]Finalising the Claimant’s statement took some time. A draft statement was sent to her by Janet King on 21 July 2021. The Claimant made some extensive revisions to that statement and returned it on 3 August 2021. A revised version was sent by Janet King on 9 August 2021.Further changes were then suggested by the Claimant on 16 August 2021. Janet King considered that these required her to put some additional questions to the Claimant which, at the Claimant’s request she did in writing on 26 August 2021. The Claimant responded to say that in her view all but one of the questions had been addressed in the most recent draft.

[293]Janet King interviewed the following people at the Claimant’s request: 293.1. Christine Smith; and 293.2. Shelagh Smith; and 293.3. Lee Ann Hamilton (who Gary Etheridge also said should be interviewed); and 293.4. Jo Wingrave; and 293.5. Diane Clements (who Gary Etheridge also said should be interviewed)

[294]Janet King interviewed the following who had been named by the Claimant as being the subject of her complaints: 294.1. Kathryn Halford; and 294.2. Gary Etheridge; and 294.3. Alan Wishart; and 294.4. Victoria Miles-Gale.

[295]Janet King also interviewed the following additional persons: 295.1. Kenya Karemo because the Claimant referred to her in her interview; and 295.2. Deborah Beardsell who Alan Wishart suggested as a witness; and 295.3. Sandra Booth-Martin a member of the Patient Experience Team suggested as a witness by Victoria Miles-Gale; and 295.4. Gemma Blackabee, a witness suggested by Gary Etheridge.

[296]Janet King’s report set out her findings based on the evidence she had collated. The process that was adopted was that Janet King decided that it was her responsibility to evaluate the evidence and to reach conclusions about what had and had not happened. The report was then to be considered by Caroline Roberts. We consider that that process left Caroline Roberts a role which was essentially a review. We find that that was the approach that she intended to take. She would read the report and decide whether the conclusions reached by Janet King were reasonable in the sense that they were properly supported by the evidence gathered. We were provided with a copy of the Respondent’s policy that sets out the procedure that will ordinarily be followed when an employee has a grievance. The process followed with the Claimant’s grievances departed substantially from that envisaged by the policy. The major difference being the appointment of Janet King to investigate the matter independently. The Claimant had no complaint about that. We consider that that was a sensible and fair departure from the norm in circumstances where very senior members of staff were the subject of complaints. We see nothing unreasonable in delegating the findings of fact necessary to determine the grievance to Janet King.

[297]The Claimant has suggested that witnesses she would have wanted to speak to were discouraged from doing so by the Respondent. In particular, she says that Gary Etheridge put pressure on two witnesses. He denies that this was the case. He said in his witness statement that two people he had spoken to were unwilling to give evidence. We find that there is no sufficient evidential basis for concluding that there was any improper pressure brought to bear on any witness.

[298]Janet King’s report sets out each allegation in turn. She then sets out the evidence that she had gathered before coming to a conclusion on each of the Claimant’s complaints. We find that the report was well reasoned and was a comprehensive piece of work. Our own conclusions differ only to a degree with the conclusions that were reached.

[299]Janet King upheld some limited parts of the Claimant’s grievance. She considered that the message conveyed by Alan Wishart during the meeting he held with the Claimant on 5 May 2021 could reasonably be seen by the Claimant as being callous. All other aspects of the grievance were not upheld although recommendations were made.

[300]The Claimant was sent a copy of the report and was invited to attend a meeting with Caroline Roberts to discuss the findings. The meeting was scheduled to take place on 22 October 2021. On 17 October 2021 the Claimant responded to Caroline Roberts informing her that she did not intend to attend that meeting. The Claimant explains her decision not to attend this meeting by reference to the stress caused to her by the process. She goes on to say that she has lost all trust and confidence in the process saying that it had been conducted in an unfair and improper manner. She suggested that the witnesses she had suggested had been put under pressure by Gary Etheridge. She did however set out a critique of the report.

[301]Caroline Roberts tells us, and we accept, that before she issued an outcome on the grievance she read the report produced by Janet King together with its extensive appendices. She says, and we accept that she read the Claimant’s e-mail of 17 October 2021 and had regards to the contents. She accepted Janet King’s findings in full. We are confident that she approached the task of reviewing the report and the underlying evidence with care as the majority of her witness statement included her reasons for upholding Janet King’s findings. We find that she was aware of the evidence and that she had considered carefully whether Janet King’s conclusions were justified.

[302]Caroline Roberts sent the Claimant a letter including her decision on 26 November 2021. That letter sets out a detailed review both of Janet King’s report but also of the points raised by the Claimant in her e-mail of 17 October 2021. Caroline Roberts set out her decision to adopt some recommendations made by Janet King. These included improvements to the process for making referrals to OH, Asking Kathryn Halford to reflect on her approach to junior members of staff, making managers more aware of the procedural aspects of the informal stages of the Respondent’s performance Management Policy and finally that Caroline Roberts would speak to Alan Wishart about his approach in delivering difficult messages. The letter set out a right of appeal.

[303]On 8 December 2021 the Claimant sent an e-mail stating that she wished to appeal the outcome of the grievance. Mehboob Khan was the person who was appointed to deal with the appeal. He had made a statement for the purposes of the tribunal hearing but, given that the Claimant does not rely upon anything that happened during the appeal process as contributing to any breach of contract, he was not called to give evidence. We simply record that he was provided with a table by the Claimant on 28 January 2022 within which the Claimant set out her critique of Janet Kings conclusions drawn from the evidence. A hearing was fixed for 4 February 2022. The Claimant had asked her trade union representative to attend and she did so. The Claimant became extremely unwell. The Respondent offered assistance through its occupational health department. Following a discussion with her trade union representative the Claimant indicated that she was content for the appeal to be conducted in her absence. The appeal took place essentially on the papers. The conclusion of Mehboob Khan was that the appeal should be dismissed.

[304]The Claimant remained off work. Her point of contact within the Respondent’s organisation was at that stage Preya Gopie a Staff Experience and Wellbeing Facilitator. The Claimant had provided a fit note from her GP saying that she would be unfit for work from 2 August 2021 for 1 month. Preya Gopie informed her that she was not expected to make any contact whilst signed off by her GP. On 18 August 2021 Preya Gopie contacted the Claimant saying that she was just checking in. The Claimant responded saying that she was not in a good place. She later informed Preya Gopie that she was going to have a further GP appointment this resulted in a further fit note saying that she was unfit for work for a further month. In September 2021 Preya Gopie arranged a second referral to the Respondent’s OH provider The advice given by the Respondent’s OH advisors was that the Claimant was suffering from a depressive illness and was unfit to return to work. A further OH report was obtained on 28 October 2021. The view of the OH clinician was that the there was little or no progress towards being fit for work. The clinician records that the Claimant ‘becomes tearful and upset when she speaks about the work issues she perceives to have caused her condition’.

[305]At the beginning of November 2021 Preya Gopie sought advice from Soofiya Idrees as to how the Claimant’s ill health had been managed. The suggestion that was made was that there ought to be an informal meeting under the Respondent’s absence management policy. On 10 November 2021 Preya Gopie sent the Claimant a request to meet and offered either to conduct the meeting virtually or in person at Queen’s Hospital. On 14 November 2021 the Claimant responded criticising Preya Gopie for what she said was short notice of the meeting. In her response she set out her view that her employers were responsible for her ill health. She claimed in her e-mail that she was suffering PTSD because of the events at work. We do not consider that 7 days’ notice of a meeting was unreasonably short notice even when an employee is suffering from a depressive illness. The Claimant said that she was unable to attend the meeting due to her physical and mental health conditions. She made reference to feeling suicidal.

[306]The Claimant’s reference to feeling suicidal caused Preya Gopie to cancel the planned meeting. On 18 November 2021 the Claimant sent Preya Gopie a lengthy e-mail in which she set out her account of her treatment.

[307]On 25 November 2021 Soofiya Idress sent the Claimant a letter informing her that her secondment to the role of Patient Experience Support Officer which had been for a term of 12 months had come to an end. She was told that her post would return to being the role of PA to Kathryn Halford. There is little if any acknowledgement in this letter to the fact that Gemma Blackabee had reverted to being Kathryn Halford’s PA. The only indication of this obvious difficulty is a suggestion that there would need to be a discussion before the Claimant’s return to work. The Claimant was provided this letter on the same day as the outcome to her grievance that is 26 November 2021.

[308]A further Occupational Health report was prepared on 29 November 2021. The clinician advised that the Claimant remained unfit for work. It was said; ‘Unless the issues she perceives to have caused the development of her current illness are resolved, I am not confident that her mental health will improve’.

[309]On 3 December 2021 the Claimant sent an e-mail to Soofiya Idress questioning how it was possible for her to return to her substantive post as PA to Kathryn Halford when Gemma Blackabee had returned to her band 6 position. On 6 December 2021 Soofiya Idress responded accepted that ‘there does need to be an understanding on how the roles will work together’. Her suggestion was that a return to work would be managed through the sickness management procedure and she suggested that a meeting was organised.

[310]An absence management meeting was scheduled for 29 December 2021. That meeting took place between the Claimant and Sarah Dunton the Director of Nursing who had been asked to take over the Claimant’s direct line management. We understand that the reason for that was that the secondment had formally ended and that line management would therefore revert to Kathryn Halford’s team. The Claimant objected to being line managed by anybody who reported to Kathryn Halford describing this as a conflict of interest. The Claimant raised this at the meeting that took place on 29 December 2021. There was therefore little progress made towards a return to work. The Claimant was provided with a further fit note from her GP saying that she was unfit to work until 2 February 2021.

[311]Deborah Beardsell organised a further absence review meeting. In order to accommodate the Claimant’s concerns about Sarah Dunton it was decided that the meeting would be conducted by Susan Shirley. Susan Shirley was a new employee who had no involvement with the Claimant’s grievance. Susan Shirly attempted to arrange a meeting offering to allow the Claimant’s trade union representative to attend if she wanted to despite this not being envisaged by the absence management policy. The Claimant indicated that she did not feel able to deal with this meeting at the same time as attending her appeal meeting on 4 February 2021. The meeting finally took place on 7 March 2021. The notes of that meeting are made on a pro-forma. The discussions covered the Claimant’s treatment and prognosis. There was no suggestion from the Claimant that she might soon be able to return to work. No adjustments were proposed. The notes suggest that if the Claimant is unable to return to work she would continue to be managed under the Respondent’s absence management policy. Susan Shirly followed up that meeting by inviting the Claimant to attend a further absence management meeting on 4 April 2021. The invitation letter included a suggestion that discussions would include the possibility of ill-health retirement. The Claimant cancelled that meeting as she had been waiting to see a psychiatrist.

[312]The Claimant was seen on 21 March 2021 by the Respondent’s OH provider. They provided a more comprehensive report than they had previously. Unfortunately the conclusions were similar to the previous reports. The Claimant was unfit to return to work. The recommendations included the suggestion of mediation and to consider psychological therapy.

[313]A further Long Term Formal Absence Review meeting took place between Susan Shirly, the Claimant and her trade union representative Laura Fingleson on 27 April 2021. The notes of this meeting suggest that it was common ground that the Claimant remained unfit for work and that there was no prospect of an imminent return. The possibility of ill health retirement was canvassed at this meeting.

[314]The Claimant was then invited to a Long Term Final Formal Attendance meeting that was initially fixed for 13 June 2022. The Claimant indicated that she was unable to attend due to her health and a decision was made to postpone the meeting. The Claimant provided a fresh fit note that said that she would be unfit for work until 2 August 2022.

[315]On 16 June 2022 Susan Shirley sent the Claimant a further invitation to the Final Formal Attendance meeting. The date of that meeting was fixed for 1 July 2022.

[316]The final sickness review meeting did not take place as the Claimant sent a letter of resignation to the Respondent on the day that the meeting was scheduled. The Claimant resigned without notice and it is common ground that her employment ended on that day. The Claimant’s resignation letter includes a statement that she has been constructively dismissed and sets out a summary of the matters that she has raised in these proceedings. Disability Issues

[317]During the case management process, as is usual, the Claimant had been ordered to produce medical records relevant to the question of whether the impairments she relied upon met the statutory test for disability set out in Section 6 of the Equality Act 2010. She was also asked to provide a statement (‘an impact statement’) that described how and when the impairments arose, any treatment and the effect on ordinary day to day activities. The impairments relied upon by the Claimant were: 317.1. The symptoms of menopause; and 317.2. Anxiety and depression; and 317.3. Post Traumatic Stress Disorder (‘PTSD’).

[318]The Respondent was required to set out its position on both the issue of disability and whether it was accepted that it had knowledge at the time of the alleged discriminatory acts. The Respondent did so in a letter to the Tribunal dated 5 December 2022. The Respondent’s position was that: 318.1. It admitted that the Claimant was disabled by reason of the mental health conditions of anxiety and depression at all material times. 318.2. It admitted that the Claimant was disabled by reason of her menopausal symptoms from May 2021 but denied she was disabled because of that impairment before that date. 318.3. It denied that the Claimant had PTSD. 318.4. It denied that the Respondent had actual or constructive knowledge that the Claimant had a qualifying disability at any relevant time.

[319]Before us the Respondent’s position remained that it took in its letter to the tribunal save that it was conceded that the Respondent had knowledge of the Claimant’s disability arising from the menopause from 5 May 2021.

[320]It is therefore necessary for the Tribunal to make findings as to: 320.1. whether the Claimant was disabled by reason of the menopause prior to 5 May 2021; and 320.2. whether she was disabled by reason of PTSD at any relevant time; and 320.3. whether the Respondent had actual or constructive knowledge of any disability the Claimant has established.

[321]In addressing these issues we applied the following legal principles taken from the self-direction provided to the parties. Equality Act 2010 - Statutory Code of Practice

[322]The power of the Equality and Human Rights Commission to issue a code of practice to ensure or facilitate compliance with the Equality Act 2010 is afforded by Section 14 of the Equality Act 2006. Such a code must be laid before Parliament and is subject to a negative resolution procedure. The current code was laid before parliament and came into force on 6 April 2011 (‘the code’). Section 15 of the Equality Act 2006 sets out the effect of breaching the code of practice. Paragraph 1.13 of the code explains that: ‘The Code does not impose legal obligations. Nor is it an authoritative statement of the law; only the tribunals and the courts can provide such authority. However, the Code can be used in evidence in legal proceedings brought under the Act. Tribunals and courts must take into account any part of the Code that appears to them relevant to any questions arising in proceedings’. The test for disability

[323]The Statutory definition of disability is set out in Section 6 of the Equality Act 2010 the material parts of which are as follows: 6 Disability(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.

(2) – (4) omitted (5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1). (6) Schedule 1 (disability: supplementary provision) has effect.

[324]Section 212 of the Equality Act 2010 provides that the meaning of the word ‘substantial’ in Section 6 means that the effect is more than minor or trivial.

[325]Schedule 1 of the Equality Act 2010 includes at paragraph 2 a definition of when an impairment will be treated as ‘long term’. The material parts read as follows: 2(1) The effect of an impairment is long-term if—(a) it has lasted for at least 12 months,

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

(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

[326]The statutory guidance produced under Section 6(5) of the Equality Act 2010 was published in 2011 and is entitled ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’. That guidance does not have the force of law, but a tribunal should have regard to the guidance when assessing whether a person meets the statutory definition of disability.

[327]In Goodwin v Patent Office

1999 ICR 302

, EAT the Employment Appeal Tribunal held that the starting point in determining whether a claimant had a disability would be to have regard to the way the parties put their respective cases in their ET1 and ET3. The Employment Appeal Tribunal identified for conditions that need to be met to establish that a person has a disability these are(1) the impairment condition

(2) the adverse effect condition

(3) the substantial condition and

(4) the long-term effect condition.

[328]Whilst a necessary element of the definition of disability is the existence of an impairment the Claimant need not provide a cause of diagnosis. Paragraph A6 of the statutory code says: ‘It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment. The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa.’

[329]In J v DLA Piper UK LLP

2010 ICR 1052

, EAT the claimant argued that, if she could establish that there was a substantial adverse effect on her abilities to undertake ordinary day to day activities then there was no need for a tribunal to concern itself with what the impairment might be that caused those difficulties. The Employment Appeal Tribunal did not accept the entirety of that argument. It said: ‘39. But we do not think that it follows – if Mr Laddie really intended to go that far – that the impairment issue can simply be ignored except in the special cases which he identified. The distinction between impairment and effect is built into the structure of the Act, not only in section 1(1) itself but in the way in which its provisions are glossed in Schedule 1. It is also reflected in the structure of the Guidance and in the analysis adopted in the various leading cases to which we have referred, which have continued to be applied following the repeal of para. 1 (1) of Schedule 1 (see, e.g., the decision of this Tribunal (Langstaff J. presiding) in Ministry of Defence v Hay

[2008] ICR 1247

– see paras. 36-38 (at pp. 1255-6)). Mr Laddie's recognition that there will be exceptional cases where the impairment issue will still have to be considered separately reduces what would otherwise be the attractive elegance of his submission. Both this Tribunal and the Court of Appeal have repeatedly enjoined on tribunals the importance of following a systematic analysis based closely on the statutory words, and experience shows that when this injunction is not followed the result is all too often confusion and error. 40. Accordingly in our view the correct approach is as follows: (1) It remains good practice in every case for a tribunal to state conclusions separately on the questions of impairment and of adverse effect (and, in the case of adverse effect, the questions of substantiality and long-term effect arising under it) as recommended in Goodwin.

(2) However, in reaching those conclusions the tribunal should not proceed by rigid consecutive stages. Specifically, in cases where there may be a dispute about the existence of an impairment it will make sense, for the reasons given in para. 38 above, to start by making findings about whether the claimant's ability to carry out normal day-to-day activities is adversely affected (on a long-term basis), and to consider the question of impairment in the light of those findings.

(3) These observations are not intended to, and we do not believe that they do, conflict with the terms of the Guidance or with the authorities referred to above….’

[330]Where there may be competing causes for any substantial adverse effect it is essential that the Tribunal makes findings as to whether the causes arise from the impairment relied upon by the claimant in their pleaded case see Morgan Stanley International v Prskavec EAT 0209/13. This will be of particular importance where, as here, knowledge of any disability and/or the fact that it placed the Claimant at a substantial disadvantage is an issue to be determined by the tribunal.

[331]Where it is necessary to ask whether the effects of any impairment are ‘likely’ to last 12 months for the purposes of satisfying the long term condition the work likely is to be taken as meaning that ‘it could well happen’ as opposed to it being more likely than not. This is a significantly lower threshold - Boyle v SCA Packaging Ltd (Equality and Human Rights Commission intervening)

2009 ICR 1056

, HL.

[332]The assessment of whether an impairment is likely to last 12 months or whether the effects of the impairment are likely to recur is to be approached on the basis of the evidence available at the time and not with the benefit of hindsight see McDougall v Richmond Adult Community College

2008 ICR 431

, CA. The employment tribunal is not at this stage concerned with any actual or constructive knowledge the employer may have had and accordingly the Tribunal should not consider only what evidence was available to the employer but all of the evidence– see Nissa v Waverly Education Foundation Limited and another

UKEAT/0135/18/DA

and Lawson v Virgin Atlantic Airways Ltd EAT 0192/19. These propositions are supported by paragraph C4 of the code which says: ‘In assessing the likelihood of an effect lasting for 12 months, account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood. Account should also be taken of both the typical length of such an effect on an individual, and any relevant factors specific to this individual (for example, general state of health or age).’ Knowledge in disability discrimination claims

[333]The Claimant has brought claims under Section 15, 20 and 21 of the Equality Act 2010. Section 15(2) provides a defence where the employer did not know or could not reasonably be expected to know that the employee had a disability. Slightly more is required before an employer is required to make reasonable adjustments. Schedule 8 paragraph 20 of the Equality Act 2010 requires the employer to have known or ought reasonably to have known of the disability and that the disabled person is placed at a substantial disadvantage.

[334]In Gallop v Newport City Council

2014 IRLR 211

, CA the Court of Appeal held that it will be sufficient to establish knowledge of disability if the employer knew or ought to have known the facts which when analysed satisfy the statutory definition of disability. That requires knowledge of an impairment but not necessarily a diagnosis. Knowledge that that impairment has a substantial effect on ordinary day to day activities and knowledge of the facts that establish the long-term condition.

[335]The Statutory Code of Practice deals with the question of knowledge in the context of a claim under Section 15 of the Equality Act 2010 in the following paragraphs: 5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a ‘disabled person’. 5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.

[336]Under a heading ‘When can an employer be assumed to know about disability’ are the following paragraphs: ‘5.17 If an employer’s agent or employee (such as an occupational health adviser or a HR officer) knows, in that capacity, of a worker’s or applicant’s or potential applicant’s disability, the employer will not usually be able to claim that they do not know of the disability, and that they cannot therefore have subjected a disabled person to discrimination arising from disability. 5.18 Therefore, where information about disabled people may come through different channels, employers need to ensure that there is a means – suitably confidential and subject to the disabled person’s consent – for bringing that information together to make it easier for the employer to fulfil their duties under the Act.’

[337]Paragraph 6.19 of the Statutory Code of Practice gives the similar guidance about the steps it would be reasonable for an employer to take to ascertain whether an employee had a disability for the purposes of making a reasonable adjustment: 6.19 For disabled workers already in employment, an employer only has a duty to make an adjustment if they know, or could reasonably be expected to know, that a worker has a disability and is, or is likely to be, placed at a substantial disadvantage. The employer must, however, do all they can reasonably be expected to do to find out whether this is the case. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially. Disability – Additional findings of fact

[338]In order to address the issues we have identified above it is necessary to make additional findings of fact. Whilst we have had regard to all the evidence the following documents were of particular relevance: 338.1. The impact statement prepared by the Claimant and signed on 30 March 2023; and 338.2. A document produced at the same time which is said to give particulars of the times when the Claimant informed individuals of her disability; and 338.3. The Claimant’s GP records; and 338.4. An expert report from a Dr Anderson a Psychologist commissioned by the Claimant’s representative.

[339]The Claimant’s impact statement is not as useful a document as it could have been. Like almost every document drafted by or on behalf of the Claimant it does not distinguish between facts and advocacy. The biggest difficulty for us in deciding whether the Claimant’s menopausal symptom reached the threshold of Section 6 of the Equality Act 2010 is that the impact statement fails to give any coherent explanation of the times that the menopausal symptom emerged and the effect on day to day activities distinguishing between the past and the present.

[340]A further cause for concern found within the impact statement is the tendency of the Claimant to project her inner feelings onto others. At more than one point she refers to hearing ‘Management voice in my head’ saying ‘you’re not good enough’ and ‘you are too old to be in our team’ and ‘just leave now so we can get a younger person in your role’. These voices in the Claimant’s head go well beyond the way she has put her claim. We accept that she has these feelings. However, we do not accept that those ‘management voices’ are real.

[341]We shall deal first with the issue of when the Claimant’s menopausal symptoms reached the point that they amounted to a disability. The time period we are concerned with starts with the Claimant’s first allegation of disability discrimination relying upon menopausal symptoms as a disability. That is the Claimant’s suggestion that Alan Wishart said he would not be investing in her training in November 2018.

[342]The Claimant’s GP records include an entry on 7 June 2018 where the Claimant has had a telephone consultation. The brief notes of the history include a reference to the Claimant being perimenopausal and having a heavy period. That entry is sufficient of itself for us to conclude that the Claimant was perimenopausal at that stage.

[343]In the Claimant’s impact statement in the early paragraphs she appears to summarise her GP records. The Claimant’s GP records record a consultation on 22 June 2022. There is no mention within those records of any menopausal symptoms. However, in her impact statement the Claimant refers to hot flushes and disturbed sleep. We do not accept that this was something mentioned by the Claimant to her GP. If she had we believe it probable that it would have been recorded. In fact there is no further reference to the menopause in the Claimant’s GP records until May 2021. In May 2021 the Claimant is recorded as telling her GP that she had her last period two years before and that she has poor concentration, hot flushes and disturbed sleep. She is prescribed HRT at that point.

[344]Alan Wishart accepts that he had knowledge that the Claimant had menopausal symptoms although he does not include in his witness statement any indication of when the Claimant first mentioned this. He says that the Claimant mentioned hot flushes. He recalls seeing her with a fan. He recalls her describing symptoms such as not being able to sleep and overheating. Given that the Claimant worked with Alan Wishart in 2018 we find that these symptoms were present during this time.

[345]We have considered the report produced by Dr Anderson. It does not appear that the Claimant ever sought formal permission to rely upon expert evidence but no objection was taken by the Respondent to its inclusion in the evidence before us. Dr Anderson was instructed to comment on ‘any psychological injuries [the Claimant] might have suffered as a result of her employment’. What we take from the scope of the instructions recorded by Dr Anderson is that he was retained to comment upon matters that might go to remedy rather than liability. Dr Anderson is a Psychologist and is therefore in no position to comment upon the physical symptoms of the menopause. However, we are concerned with the effect of any menopausal symptoms on the Claimant and in particular the effect on day to day activities. Dr Anderson provides some useful insight into this issue. He records his opinion that the Claimant has probably had a significant tendency to performance anxiety over her lifetime although not to a degree to amount to a psychological disorder. He goes on to suggest that this represented an underlying vulnerability to adverse criticism. He goes on to say that underlying emotional states would be significantly exaggerated by hormonal changes such as the menopause. He suggests that there has been a significant impairment to day to day functioning for more than two years (i.e. earlier than 2020).

[346]There is an abundance of evidence of the Claimant becoming disproportionately upset when she perceived, often incorrectly, that she was being criticised. This supports her account of going through significant hormonal changes. We pause to note that this was not a symptom upon which the Claimant put any emphasis in the way she put her case.

[347]The Claimant suggests that she had ‘brain fog’. Dr Anderson’s observations of the Claimant support her suggestion that this was present in 2022. His report is less useful when assessing when that symptom emerged. The Claimant says that she was known as the post it note queen. Whilst many people without any memory issues will use post it notes, we accept that the Claimant’s reason for doing so was to counter forgetfulness.

[348]The Claimant had sought information about the effects of the menopause in 2019. That supports her case that she was suffering significant symptoms at the time.

[349]We consider the position taken by the Respondent that the Claimant’s menopausal symptoms did not reach the threshold in Section 6 until she sought treatment in May 2021 to be unrealistic. Applying the legal test

[350]We are satisfied that from the outset of her perimenopausal symptoms the Claimant had an impairment that lasted from June 2018 until her resignation (and beyond).

[351]We have found that that impairment gave rise to the following symptoms: 351.1. That from as early as mid-2018 the Claimant was experiencing hot flushes, night sweats and disturbed sleep; and 351.2. That the Claimant started to experience a loss of concentration or lapses in memory which she has described as brain fog. We are satisfied that this is something that developed over time from 2018; and 351.3. The Claimant’ underlying performance anxiety was exaggerated by the hormone changes which she was experiencing.

[352]We note that the Claimant took little or no time off work as a consequence of this impairment until July 2021. However, the approach we need to take is to focus not on what the Claimant has managed to do but on what she could not do or could only do with difficulty. We have all read the Equal Treatment Bench Book and the advice that is given about the symptoms of the menopause. We are satisfied that from the onset of the Claimant’s menopausal symptoms there was a more than minor or trivial effect on her ability to carry out day to day tasks. In particular, we find that she had some difficulties in concentrating. Her sleep was disturbed and her hot flushes were uncomfortable and interfered with whatever activities she was engaged in.

[353]It follows that we are satisfied that the Claimant met the statutory definition of being disabled by reason of her menopausal symptom from mid-2018. PTSD

[354]The Claimant says that she has Post-traumatic Stress Disorder and that that amounts to a disability. We do not think that the Claimant has appreciated the conceptual difference between a disability that is the cause or foundation of unlawful treatment and an illness, disability or injury caused by the unlawful treatment. There is nothing in the Claimant’s evidence that suggests that she had PTSD prior to the time that she went on sick leave. There are some references to PTSD in her correspondence with the Respondent whilst on sick leave.

[355]In any event, the Claimant’s own expert, Dr Anderson comprehensively dismissed the suggestion that as a matter of fact the Claimant did or does have PTSD. He refers to the diagnostic criteria for posttraumatic stress disorder set out in the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition (DSM5) and notes that the level of trauma to support a diagnosis must include exposure to actual or threatened death, serious injury or sexual violence. He then says: ‘Although Ms Reeve may have experienced some unpleasant interactions at work, these interactions fall significantly short of this criterion’.

[356]In his report Dr Anderson then goes on to say that in his opinion the Claimant does have an adjustment disorder within the diagnostic criteria of DSM5. He notes that the diagnostic criteria require the development within 3 months of emotional or behavioural symptoms in response to an identifiable stressor. Thereafter the criteria require either that the marked distress is out of all proportion to the severity and intensity of the stressor (in all the circumstances) or a significant impairment in social, occupational of other important areas of functioning. Finally the stress-related disturbance must not meet the criteria for any other mental disorder. Dr Anderson does not state in terms whether his opinion is that the Claimant’s reaction to any stressor was out of all proportion or whether he considers that the Claimant has a significant impairment.

[357]The Claimant has not relied upon an adjustment disorder as a disability independent of her anxiety and depression or her menopausal symptoms. It is not her case that her reaction to the stresses at work was out of all proportion to the events themselves. On the contrary she describes the events in strong terms. In our findings of fact, we have on many occasions found that the Claimant was overreacting to fairly mundane events projecting her view that she was a victim of poor treatment onto some very ordinary management interactions. There is no doubt that the Claimant became ill in July 2021 and that that illness became progressively worse. We find that the most natural reading of Dr Anderson’s report is that, like us, he considered that the adjustment disorder he identifies included a disproportionate response to events. That would correlate with our own findings. However this is not the impairment relied upon by the Claimant. If the impairment amounted to a disability it appears to have emerged only at the later stages before the Claimant became unfit for work. The question of whether the Respondent had actual or constructive knowledge of this was not explored with the witnesses and it would be unfair to depart from the Claimant’s pleaded case to include an adjustment disorder as an additional impairment.

[358]It follows from the discussion above that we find that for the purposes of Section 6 of the Equality Act 2010 the Claimant was disabled at all material times both from the impairments of anxiety and depression and from her menopausal symptoms. Knowledge of the Claimant’s disabilities

[359]For the purposes of the claims brought by the Claimant under Section 15 and the claims that there has been a failure to make reasonable adjustments it is necessary for us to make findings as to whether the Respondent knew or ought to have known that the Claimant had the two disabilities we have identified above. The Respondent has made concessions in respect of the disability arising from the menopause from 5 May 2021 onwards accepting that it ought to have known of that disability.

[360]We shall start with a general point in relation to the Claimant’s disability arising from the menopause. Women may have very different experiences of the menopause. The fact that a woman has some menopausal symptoms would not necessarily indicate that the level of those symptoms and their duration means that the statutory definition of disability is likely to be met. In many cases it might not be.

[361]We consider that when assessing whether an employer ought to realise that menopausal symptoms reach the statutory threshold of disability the extent to which an employer would be reasonably expected to make enquiries will be informed by the need to preserve a woman’s dignity. Not every reference to menopausal symptoms would justify the sort of detailed enquiries that would reveal the level of knowledge identified in Gallop. We consider that the same is true for anxiety and depression.

[362]We shall deal with each period of the Claimant’s employment when assessing the question of whether the Respondent knew or ought to have known of the Claimant’s disabilities.

[363]Alan Wishart accepts that he was aware that the Claimant was going through the menopause. He accepts that he had conversations with her about overheating and not being able to sleep. He recalls that the Claimant discussed a documentary that she had seen that was broadcast on 8 March 2021that dealt with issues of the menopause in the workplace. He says, and we accept, that at no point before 5 May 2021 did the Claimant expressly say anything that suggested that her menopause was impacting upon her work. In her appraisal in 2018 the Claimant was asked whether she needed any support for her health. She identifies that she wanted to work for a condensed week.

[364]The Claimant says that she told Kenye Karemo about both her mental health and her difficulties with the menopause. Kenye Karemo denies that this is the case. When the Claimant started working for Kenye Karemo she completed a flexible working form. She was asking to work condensed hours. When she completed the form she had the opportunity to indicate whether the changes were to accommodate a disability. She indicated that this was not the case but was for a ‘work/life balance’. In her appraisal in 2019 the Claimant was again asked about support for health and wellbeing and indicated that the question was not applicable. Kenye Karemo says that she was aware that the Claimant would wear loose clothing and sandals. She regarded this as unprofessional. The Claimant says that she had told Kenye Karemo that she dressed in this way because she was menopausal. We are faced with a stark conflict of evidence. We have expressed our concerns about the Claimant’s ability to accurately recall events without some gloss. This leads us to find that the Claimant did not ever tell Kenye Karemo that she was suffering any symptoms of ill health relating to her disabilities.

[365]During the period that the Claimant was working as Katherine Halford’s PA we accept that the Claimant habitually used a fan to keep cool, that she wore loose clothing and that she used post it notes to jog her memory. At this time the Claimant was managed by Christine Smith who she liked and we find trusted. Christine Smith told us that the Claimant never raised any issue that would suggest that her menopause was causing any difficulty at work or that she had a history of anxiety and depression. We find that if the Claimant did not tell Christine Smith about this then it is more likely that as they say, Katherine Halford and Gary Etheridge had no knowledge of any significant symptoms.

[366]Until they had a disagreement the Claimant was friendly with Gemma Blackabee. Gemma Blackabee says that the Claimant never said anything about the menopause above saying that she had hot flushes. She says that the Claimant never mentioned her mental health. We do note from a text message that on 10 September 2020 Gemma Blackabee is aware that the Claimant was upset and is enquiring about her. The Claimant responds promising that she will not ‘do anything silly’. Whilst in the context of the later medical history that appears to be a potential signal of mental health difficulties we find that at the time Gemma Blackabee did not have sufficient knowledge of the Claimant’s history that she was on notice that there was a serious issue.

[367]We have set out above a narrative of the one-to-one meetings between the Claimant and Victoria Miles-Gale. We have noted that each of the early records of those meetings contains a section dedicated to well-being. Wellbeing is discussed on a regular basis in those meetings. We find that the Claimant said nothing at all that would have alerted Victoria Miles Gale to the fact that she was having any material difficulties with her mental health or with the menopause. That conclusion is strongly supported by the notes of the well-being meeting that took place on 17 March 2021. The notes of that meting have no reference to menopausal symptoms. There is a suggestion that the Claimant feels anxious in team huddles. The sections completed by the Claimant give a full opportunity to identify difficulties.

[368]Having reviewed the evidence we have reached the following conclusions: 368.1. The Claimant did not conceal the fact that she had menopausal symptoms and would discuss having difficulty sleeping and having hot flushes. She used a fan and loose clothing as a way of coping with the latter. 368.2. Whilst not concealing that she had menopausal symptoms the Claimant did not suggest to anybody at the Respondent’s organisation that her symptoms were interfering with her day to day activities in a way that was more than minor or trivial. 368.3. In particular the Claimant did not identify her menopausal symptoms as interfering with her work at any time before 5 May 2021. The contrary she did not think that there was anything wrong with her work. 368.4. The Claimant did not at any time reveal that she had for many years been treated for anxiety and depression. The Claimant was known to be commonly tearful particularly when she perceived herself as being criticised. Victoria Miles-Gale recognised that she was ‘fragile’ when she joined the Patient Experience Team.

[369]It follows from those findings above that we have not accepted the Claimant’s account that she was more open about her mental health and menopause.

[370]It follows from our findings of fact that, particularly with the benefit of hindsight, there were some indications that the Claimant had the disabilities she relies upon. There was however no actual knowledge by anybody of the Gallop knowledge we have referred to above.

[371]We have considered whether such indications as there were should have led any of the Claimant’s managers to make further enquiries. We are satisfied that had the Claimant been asked, in a supportive environment, about her health she would have explained what her symptoms were. However, we conclude that she would have refused to acknowledge that this explained why her performance was criticised.

[372]We have had regard to the examples in the statutory code of practice. In particular the suggestion that unexplained crying might prompt a conversation about mental health. We find that there is a distinction between wholly unexplained crying and the position of the Claimant. She would be tearful when criticised. Her reaction was excessive but that is not necessarily an indication of a mental health condition.

[373]We need to ask what the Respondent ought to have known at the time. What enquiries it ought to have made. We take into account the need to preserve the Claimant’s dignity. We note that in two annual appraisals and in particular in March 2021 appropriate enquiries did not result in the Respondent becoming aware of the Gallop knowledge.

[374]Standing back we have come to the conclusion that the Respondent had no constructive knowledge of the Claimant’s disabilities until 5 May 2021. At that point the Respondent had sufficient knowledge of the Claimant’s menopausal symptoms that it ought to have made further enquiries. Proper enquiries would also have revealed the fact that the Claimant has a long standing diagnosis of anxiety and depression. The Equality Act Claims

[375]We shall deal with the claims brought under the Equality Act 2010 by working through the schedule that he parties have drawn up. When doing so we draw on the findings of fact that we set out above. We recognise that when setting out findings and decisions on a claim by claim basis there is a risk that it appears that the claims have been considered in isolation. We reminded ourselves when making our findings of fact and reaching our conclusions that we need to look at the entirety of the evidence when dealing with each event. We accept that something that of itself appears trivial or unimportant can take on an entirely different character when viewed against the full picture.

[376]The structure we have adopted is to deal with the claims as set out in the schedule. That means we shall deal with the claims under the various sections of the Equality Act identified by the Claimant. Some factual allegations are brought under more than one section. This means that there is some overlap. In those instances we shall cross refer to our earlier conclusions where it is important to do so. The Claimant has brought claims under Section 26 and Section 13 of the Equality Act 2010. Where the claims depend on the same facts the effect of Section 212 of the Equality Act 2010 is that where a claim of harassment is established the same act cannot be a detriment for the purposes of a claim under Section 13 and 39 of the Equality Act 2010. Whilst we are alive to that distinction, the fact that we have not found any harassment claim to be made out, means that it is irrelevant to our decision.

[377]Before turning to the individual claims we remind ourselves of some basic principles that we need to bear in mind when dealing with every type of claim under the Equality Act. The burden and standard of proof under the Equality Act 2010

[378]The standard of proof that we must apply in every case is the civil standard that is the balance of probabilities. In other words, we must decide whether it is more likely than not that any fact is established.

[379]The burden of proof in respect of all claims brought under the Equality Act 2010 is governed by section 136 of that act the material parts of which are: 136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[380]Accordingly, where a claimant establishes facts from which discrimination could be inferred (a prima facie case), then the burden of proving that the treatment was in no sense whatsoever unlawful passes to the respondent. The proper approach to the shifting burden of proof has been explained in Igen v Wong

[2005] ICR 9311

which approved, with some modification, the earlier decision of the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd

[2003] IRLR 332

. Most recently in Base Childrenswear Limited v Otshudi

[2019] EWCA Civ 1648

Lord Justice Underhill reviewed the case law and said: 17. Section 136 implements EU Directives 2000/78 (article 10) and 2006/54 (article 19), which themselves derive from the so-called Burden of Proof Directive (1997/80). Its proper application, and that of the equivalent provisions in the pre-2010 discrimination legislation, has given rise to a great deal of difficulty and has generated considerable case-law. That is not perhaps surprising, given the problems of imposing a two-stage structure on what is naturally an undifferentiated process of fact-finding. The continuing problems, including in particular the application of the principles identified in Igen Ltd v Wong

[2005] EWCA Civ 142

[2005] ICR 93

, led to this Court in Madarassy v Nomura International plc

[2007] EWCA Civ 33

[2007] ICR 867

, attempting to authoritatively re-state the correct approach. The only substantial judgment is that of Mummery LJ: it was subsequently approved by the Supreme Court in Hewage v Grampian Health Board

[2012] UKSC 37

[2012] ICR 1054

. In Efobi v Royal Mail Group Ltd

[2017] UKEAT 0203/16

[2018] ICR 359

, the EAT held that differences in the language of section 136 as compared with its predecessors required a different approach from that set out in Madarassy; but that decision was overturned by this Court in Ayodele v Citylink Ltd

[2017] EWCA Civ 1913

[2018] ICR 748

, and Madarassy remains authoritative. 18. It is unnecessary that I reproduce here the entirety of the guidance given by Mummery LJ in Madarassy. He explained the two stages of the process required by the statute as follows:(1) At the first stage the claimant must prove “a prima facie case”. That does not, as he says at para. 56 of his judgment (p. 878H), mean simply proving “facts from which the tribunal could conclude that the respondent ‘could have’ committed an unlawful act of discrimination”. As he continued (pp. 878-9): “56. … The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. 57. ‘Could conclude’ in section 63A(2) [of the Sex Discrimination Act 1975] must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it. …”

(2) If the claimant proves a prima facie case the burden shifts to the respondent to prove that he has not committed an act of unlawful discrimination – para. 58 (p. 879D). As Mummery LJ continues: “He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim.” He goes on to explain that it is legitimate to take into account at the first stage all evidence which is potentially relevant to the complaint of discrimination, save only the absence of an adequate explanation.

[381]Inferences can only be drawn from established facts and cannot be drawn speculatively or on the basis of a gut reaction or ‘mere intuitive hunch’ see Chapman v Simon

[1994] IRLR 124

see per Balcombe LJ at para. 33 or from ‘thin air’ see Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

[382]Discrimination cannot be inferred only from unfair or unreasonable conduct Glasgow City Council v Zafar

[1998] ICR 120

. That may not be the case if the conduct is unexplained Anya v University of Oxford

[2001] IRLR 377

, CA. Whilst inferences of discrimination cannot be drawn merely from the fact that the Claimant establishes a difference in status and a difference treatment see Madarassy v Nomura International plc

[2007] ICR 867

‘without more’, the something more “need not be a great deal. In some instances it will be furnished by non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred” see Deman v Commission for Equality and Human Rights

[2010] EWCA Civ 1279

per Sedley LJ at para 19.

[383]Where there are a number of allegations each single allegation of discrimination should not be viewed in isolation, but the history of dealings between the parties should be taken into account in order to determine whether it is appropriate to draw an inference of racial motive in respect of each allegation Anya v University of Oxford and Qureshi v Victoria University of Manchester and Another

[2001] ICR 863

, EAT.

[384]The burden of proof provisions need not be applied in a mechanistic manner Khan and another v Home Office

[2008] EWCA Civ 578

. In Laing v Manchester City Council

2006 ICR 1519

Mr Justice Elias (as he then was) said: “the focus of the Tribunal's analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a Tribunal to say, in effect, "there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the Employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race”

[385]Such an approach must assume that the burden of proof falls squarely on the Respondent to prove the reason for any treatment. Field v Steve Pye and Co (KL) Ltd and ors

2022 EAT 68

suggests that a tribunal should exercise some caution if it is minded to move directly to the issue of the respondent’s explanation for any treatment. Quite clearly what was said by HHJ Tayler could not have been intended to say that it is never open to a tribunal to take the step of asking whether it is in a position to make clear positive findings about the reasons for any treatment as such an approach has the endorsement of the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

. What we take from Field v Steve Pye is that the dangers of taking the step permitted by Hewage , Khan and Laing include the possibility of a failure to analyse evidence that could support an inference of discrimination. We must bear that in mind.

[386]Section 136 applies to a claim that there had been a failure to make reasonable adjustments. In order for the burden to pass the Claimant needs to demonstrate that there is a policy, criterion or practice (or physical feature) that places them at a substantial disadvantage in comparison to a person without their disability and that there is some apparently reasonable adjustment that would alleviate that disadvantage. If they do so the burden shifts to the Respondent to show that the adjustment was not reasonable Latif v Project Management Institute

[2007] IRLR 579

and HM Prison Service v Johnson

UKEAT/0420/06

. The Direct Discrimination Claims – Section A of the Schedule

[387]The Claimant has identified numerous actors in respect of many of her allegations and in many instances a number of comparators. Where the Claimant identifies numerous actors she says are responsible for any act or omission it falls to her to show that that person had some at least some involvement. That involvement need not be much but it needs to be something. If she cannot show that it is more likely than not that there was some involvement then there can be no liability under any provision of the Equality Act 2012.

[388]The Claimant has set out a large number of persons she says are statutory comparators. We remind ourselves that even if a comparator is not a statutory comparator we can look at the how others were treated for evidential purposes.

[389]Whilst we have set out findings of fact above where conclude below that the Claimant has established treatment that amounts to a detriment we need to go on to make additional findings about the reason or reasons for that treatment. That will require additional findings including dealing with the issue of comparators. We shall try and make it clear where we are making additional findings of fact.

[390]In order to keep these reasons proportionate we have not set out findings in relation to every comparator for every allegation. Where we have not referred to a comparator it is because we found the comparator to be of no evidential assistance. Where we have not referred to any named perpetrator it is because we have found that that person had no involvement in the act complained of. The relevant legal principles – direct discrimination

[391]Section 13 of the Equality Act 2010 contains the statutory definition of direct discrimination. The material part of that section read as follows: “(1) A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2) If the protected characteristic is age then A does not discriminate against B if A can show that A’s treatment of B is a proportionate means of achieving a legitimate aim.”

[392]Section 39 of the Equality Act 2010 defines the scope of the acts and omissions that are unlawful in the field of employment. The material parts of that section say: 39 Employees and applicants (1)…. (2) An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;

(b) in the way A affords B access or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(d) by subjecting B to any other detriment. (3) …(6) (7) In subsections (2)(c) and (4)(c), the reference to dismissing B includes a reference to the termination of B's employment— (a) by the expiry of a period (including a period expiring by reference to an event or circumstance); (b) by an act of B's (including giving notice) in circumstances such that B is entitled, because of A's conduct, to terminate the employment without notice. (8)Subsection (7)(a) does not apply if, immediately after the termination, the employment is renewed on the same terms.

[393]The threshold for what might amount to a detriment within Sub-Section 39(2)(d) is low. In Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL held that a “detriment” existed if a reasonable worker would or might take the view that the treatment accorded to her had in all the circumstances been to her detriment; that it was not necessary to demonstrate some physical or economic consequence. The concept of a reasonable employee was explained in De Souza v Automobile Association

1986 ICR 514

, CA, where Lord Justice May said, the question is to be considered ‘from the point of view of the victim. If the victim’s opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice.’

[394]An explanation of the differing ways in which treatment might be because of a protected characteristic was given in Amnesty International v Ahmed

[2009] IRLR 884

by Underhill P (as he was). He said:'33. In some cases the ground, or the reason, for the treatment complained of is inherent in the act itself. If an owner of premises puts up a sign saying “no blacks admitted”, race is, necessarily, the ground on which (or the reason why) a black person is excluded. James v Eastleigh [Borough Council

[1990] IRLR 288

] is a case of this kind. There is a superficial complication, in that the rule which was claimed to be unlawful – namely that pensioners were entitled to free entry to the council's swimming-pools – was not explicitly discriminatory. But it nevertheless necessarily discriminated against men because men and women had different pensionable ages: the rule could entirely accurately have been stated as “free entry for women at 60 and men at 65”. The council was therefore applying a criterion which was of its nature discriminatory: it was, as Lord Goff put it (at p.294, paragraph 36), “gender based”. In cases of this kind what was going on inside the head of the putative discriminator – whether described as his intention, his motive, his reason or his purpose – will be irrelevant. The “ground” of his action being inherent in the act itself, no further inquiry is needed. It follows that, as the majority in James v Eastleigh decided, a respondent who has treated a claimant less favourably on the grounds of his or her sex or race cannot escape liability because he had a benign motive.

34. But that is not the only kind of case. In other cases – of which Nagarajan is an example – the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation, ie by the “mental processes” (whether conscious or unconscious) which led the putative discriminator to do the act. Establishing what those processes were is not always an easy inquiry, but tribunals are trusted to be able to draw appropriate inferences from the conduct of the putative discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions) …'

[395]It follows that in a case not falling into the first category identified in Amnesty International v Ahmed in order to establish less favourable treatment it is necessary to show that the claimant has been treated less favourably than a comparator not sharing her protected characteristic was or would have been treated. Paragraphs 3.4 and 3.5 of the code say: 3.4 To decide whether an employer has treated a worker ‘less favourably’, a comparison must be made with how they have treated other workers or would have treated them in similar circumstances. If the employer’s treatment of the worker puts the worker at a clear disadvantage compared with other workers, then it is more likely that the treatment will be less favourable: for example, where a job applicant is refused a job. Less favourable treatment could also involve being deprived of a choice or excluded from an opportunity. 3.5 The worker does not have to experience actual disadvantage (economic or otherwise) for the treatment to be less favourable. It is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way the employer treated – or would have treated – another person.

[396]Section 23 of the Equality Act 2010 provides that any comparator must be in the same, or not materially different, circumstances. What is meant by ‘circumstances’ for the purpose of identifying a comparator it is those matters, other than the protected characteristic of the claimant, which the employer took into account when deciding on the act or omission complained of see - MacDonald v Advocate-General for Scotland; Pearce v Governing Body of Mayfield Secondary School

[2003] IRLR 512

, HL. Where no actual comparator can be identified the tribunal must consider the treatment of a hypothetical comparator in the same circumstances. Paragraphs 3.22 – 3.27 say (with some parts omitted): 3.22 In most circumstances direct discrimination requires that the employer’s treatment of the worker is less favourable than the way the employer treats, has treated or would treat another worker to whom the protected characteristic does not apply. This other person is referred to as a ‘comparator’. Who will be an appropriate comparator? 3.23 The Act says that, in comparing people for the purpose of direct discrimination, there must be no material difference between the circumstances relating to each case. However, it is not necessary for the circumstances of the two people (that is, the worker and the comparator) to be identical in every way; what matters is that the circumstances which are relevant to the treatment of the worker are the same or nearly the same for the worker and the comparator. Hypothetical comparators 3.24 In practice it is not always possible to identify an actual person whose relevant circumstances are the same or not materially different, so the comparison will need to be made with a hypothetical comparator. 3.25 In some cases a person identified as an actual comparator turns out to have circumstances that are not materially the same. Nevertheless their treatment may help to construct a hypothetical comparator. 3.26 Constructing a hypothetical comparator may involve considering elements of the treatment of several people whose circumstances are similar to those of the claimant, but not the same. Looking at these elements together, an Employment Tribunal may conclude that the claimant was less favourably treated than a hypothetical comparator would have been treated. 3.27 Who could be a hypothetical comparator may also depend on the reason why the employer treated the claimant as they did. In many cases it may be more straightforward for the Employment Tribunal to establish the reason for the claimant’s treatment first. This could include considering the employer’s treatment of a person whose circumstances are not the same as the claimant’s to shed light on the reason why that person was treated in the way they were. If the reason for the treatment is found to be because of a protected characteristic, a comparison with the treatment of hypothetical comparator(s) can then be made.

[397]In Shamoon Lord Scott of Foscote set out a summary of the law relating to comparators at paragraphs 107- 1101. He said this about the evidential role of comparators: 1 For a full recent discussion of the same point see - Martin v Board of Governors of St Francis Xavier 6th Form College

[2024] IRLR 472

‘comparators have a quite separate evidential role to play. Article 7 has nothing to do with this role. It is neither prescribing nor limiting the evidential comparators that may be adduced by either party. The victim who complains of discrimination must satisfy the fact-finding tribunal that, on a balance of probabilities, he or she has suffered discrimination falling within the statutory definition. This may be done by placing before the tribunal evidential material from which an inference can be drawn that the victim was treated less favourably than he or she would have been treated if he or she had not been a member of the protected class. Comparators, which for this purpose are bound to be actual comparators, may of course constitute such evidential material. But they are no more than tools which may or may not justify an inference of discrimination on the relevant prohibited ground, e g sex. The usefulness of the tool will, in any particular case, depend upon the extent to which the circumstances relating to the comparator are the same as the circumstances relating to the victim. The more significant the difference or differences the less cogent will be the case for drawing the requisite inference. But the fact that a particular chosen comparator cannot, because of material differences, qualify as the statutory comparator, e g, under article 7 , by no means disqualifies it from an evidential role. It may, in conjunction with other material, justify the tribunal in drawing the inference that the victim was treated less favourably than she would have been treated if she had been the article 7 comparator’

[398]The proper approach to deciding whether the treatment was afforded ‘because of’ the protected characteristic is to ask what the reason was for the treatment. If the protected characteristic had a significant influence on the outcome then discrimination will be made out see - Nagarajan v London Regional Transport

[1999] UKHL 36

;

[1999] IRLR 572

[399]The reason for the unlawful treatment need not be conscious but may be subconscious. In Nagarajan Lord Nicholls said: ‘I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did.’

[400]Amnesty International v Ahmed is authority for the proposition that conduct can amount to unlawful discrimination despite it being imposed for benevolent reasons. The tribunal is not concerned about motive but for the reasons for the treatment. The Direct Discrimination Claims – Schedule Part A

[401]We shall deal with some broad points at the outset as it will save us repeating the same points under each of the allegations.

[402]The first of these points concerns the claims that there was direct discrimination because of age. The Claimant has said that Alan Wishart made an express reference to her being near retirement age (and therefore not worth training). We have rejected the Claimant account of that. Our reasons are set out above and we shall not repeat them here. The Claimant does not say that anybody else she had dealings with referred to her age in any context that might shed a light on whether age featured as a reason for her treatment. We accept of course that treatment can be discriminatory without any express reference to the protected characteristic in question. Whether it is will turn on the question of whether inferences can be drawn from findings of primary fact. We must not limit our review of the evidence to the facts surrounding any particular event but must survey the entire canvas. It would add to an already lengthy decision for us to repeat that every time we reach a conclusion on whether the evidence supports an inference of discrimination.

[403]In our findings of fact we have rejected a number of factual allegations made by the Claimant. We have done so having regard to all the witnesses including those called by the Claimant. We have found that the Claimant has projected her internal views onto others. For example her internal response to criticism has led her to suggest that she was expressly told that her work was not good enough or that she was too slow. That was perhaps the implication of the criticism but we have not found that it was articulated in the way alleged. We have rejected the suggestion that there was a cabal of senior managers who had orchestrated the Claimant’s dismissal, or in her words ‘set her up to fail’. It is correct that by May 2021 the Claimant’s senior managers were agreed that it would be best for all if the Claimant accepted the terms of the settlement proposed but that conclusion was reached only after a number of line managers had found the Claimant’s work unsatisfactory.

[404]It ought to be apparent from our findings of fact why we have not accepted the Claimant’s account of many of the events we have been asked to adjudicate upon. No doubt that will disappoint the Claimant. We make it clear that we do not find that the Claimant has been dishonest. We have no doubt that she is entirely confident in her own recollection. However, we find that her (and indeed Antoinette Webber’s) recollection has been badly affected by her perception that she has been treated very badly indeed. We regret to say that this has made her evidence unreliable. A1 ‘C was doing two roles, Esther’s maternity Band 5 and Christine Matthews band 6 and project support….’

[405]Victoria Miles-Gale is said to have directly discriminated against the Claimant because of age and the Claimant’s disabilities menopause, anxiety and depression and PTSD.

[406]We have set out our findings of fact in relation to this above. In short we have rejected the Claimant’s factual case that she was made to cover two roles in addition to her own. We have found that the Claimant was asked to cover some tasks that had been undertaken by the individuals that she has named. However, as the record of the Claimant’s one-to-one meetings with Victoria Miles-Gale show the Claimant was allocated a modest workload that was regularly monitored.

[407]We do not consider that the workload the Claimant was allocated between November 2020 and April 2021 (the dates she has given) could reasonably be seen as a detriment. That is true even for an employee with the Claimant’s disabilities. A reasonable employee would recognise that a band 5 employee in the Claimant’s position might be expected to take on the tasks of absent colleagues including some aspects of a more senior colleagues role.

[408]If we are wrong about the issue of whether the workload allocated to the Claimant was a detriment we need to make findings about the reasons for the treatment. The following evidence appear to us to be particularly relevant; 408.1. The Patent Experience Team was shorthanded for a period. It is in that context that Shiobhan Francis was brought into the team in February with the announcement by e-mail saying ‘Good News!’. In those circumstances we would expect Victoria Miles-Gale to have been compelled to allocate as many tasks as she felt reasonable to team members. 408.2. There was evidence that when the Claimant left the team her tasks were swiftly allocated to others including two of her comparators. Siobhan Francis was asked to take on the support of the PPC. Dean Hughes took over the collation of the Post-discharge call data. 408.3. We do not have a side by side comparison of the workload undertaken by the Claimant’s comparators. The Claimant does not provide evidence that any of her colleagues had any significantly lighter workload than she did. Indeed she complains (incorrectly) that one of the tasks that she was doing was re-allocated to Shiobhan Francis.

[409]Dealing first with the claim that the Claimant was given excessive work because of age. The first issue for us is whether the Claimant has proved facts from which we could infer that the decisions of Victoria Miles-Gale were because of age. Victoria Miles-Gale has referred to the fact that she is not much younger than the Claimant and that she also had a difficult menopause. We consider that Section 24(1) of the Equality Act 2010 means that Victoria Miles-Gale’s age and any disability is irrelevant. We do consider it relevant, and a matter that we are able to take account of at this stage, that there was a wide age range in the Respondent’s workforce. The Claimant was many years short of the age where she would ordinarily be expected to retire.

[410]We do not consider that the Claimant has established any facts from which we could conclude that age played any part in the decisions of Victoria Miles-Gale to allocate her the tasks she did. It follows that the allegation of age discrimination must fail.

[411]We turn to disability. It would be a particularly appalling form of discrimination for a manager to give a disabled employee an excessive workload because they were disabled. However, that does not mean that there is any higher standard of proof that is required. The Claimant refers to Christine Matthews as a comparator. Christine Matthews had had an extended period off work due to her health. That does not place her in exactly the same material circumstances as the Claimant but, had there been any excessive workload placed on Christine Matthews, that may well support the Claimant’s case. However in her evidence Christine Mathews made no complaints about her workload. She says that when she became unwell it was Victoria Miles-Gale who recognised that she was struggling and suggested that she take time off signposting her to services that would assist her. She refers to Victoria Miles-Gale supporting her.

[412]We do not find that the Claimant has proved facts from which we could infer that Victoria Miles-Gale’s reasons for giving her the workload she did were because of disability. In the circumstances this claim must fail.

[413]Lest we have made any error in concluding that the Claimant has not established even a prima facie case of discrimination we shall consider Victoria Miles-Gale’s explanation for the treatment complained of. We have set out our finding as to the extent Victoria Miles-Gale had of the Claimant’s disabilities above. In short, rightly or wrongly, she did not consider that the Claimant was disabled. She did however recognise that the Claimant, on arrival in the team was fragile. It was for that reason that she met regularly with the Claimant and discussed her workload with her. We find that she gave the Claimant such tasks as were appropriate for her role and honestly believed that the workload was reasonable for the Claimant. We find that considerations of age or disability played no part whatsoever in her decision making process save that she was conscious that the Claimant needed support and a gentle introduction into the team. A2 ‘Receiving an e-mail from Mrs Miles-Gale informing the team that Siobhan Francis will be joining…..C’s projects were given to Siobhan Francis’

[414]The way that this allegation is put suggests that there are two separate components to it. The first being the recruitment of Siobhan Francis to the team and the second being the Claimant’s work being allocated to Siobhan Francis. As we understood the case it appears to be the Claimant’s belief that Siobhan Francis was recruited in order to displace the Claimant. The claims are put as direct discrimination because of age and/or disability.

[415]A contradiction in the Claimant’s case emerges when contrasting the complaint above, A1, with this complaint. In A1 the Claimant says she was struggling with her workload between November 2020 and April 2021. In this allegation she complains that some of her duties were removed from her.

[416]In our findings of fact set out above we have reached the following conclusions: 416.1. That the Patient Experience team was short-handed in February 2021; and 416.2. We have found that after the one-to-one meeting held between the Claimant and Victoria Miles-Gale on 18 February 2021 Victoria Miles-Gale had sent the Claimant an e-mail and described her as ‘much more comfortable and confident in the role’ and reduced the frequency of the meetings; and 416.3. That none of the projects undertaken by the Claimant were transferred to Siobhan Francis until the Claimant had left the Patient Experience Team. In particular, the part of the leaflet project that was undertaken by Siobhan Francis was distinct from the part that the Claimant had been asked to complete.

[417]Our findings of fact lead us to the conclusion that there was nothing whatsoever associated with the recruitment of Siobhan Francis to the team and the work she was given that any reasonable employee could consider to be a disadvantage. That conclusion is fatal to any complaint that these actions were unlawful.

[418]We should expressly deal with the suggestion that the recruitment of Siobhan Francis was with a view to replacing the Claimant. Both the Claimant and Antoinette Webber have put forward the suggestion (included in Antoinette Webber’s witnesses statement in these terms that ‘When the Department wants to get rid of the elderly or black and ethnic minority staff they usually send them down to VMG to be performance managed’. The Claimant sees the recruitment of Siobhan Francis as part of that plan.

[419]We have considered all the evidence save for Victoria Miles-Gale’s explanations, including the subsequent events but do not find that there is any sufficient material from which we could draw an inference that the recruitment and work allocated to Siobhan Francis was influenced by either age or disability or was part of a plan to manage the Claimant out of the organisation.

[420]If Victoria Miles-Gale is required to prove the reason for these decisions we find that she has provide a full and complete explanation of the treatment complained of. He reasons for seeking an additional team member was that her team was shorthanded. Her reason for asking Siobhan Francis to work on the final aspect of the leaflet project was that she considered that this was a discrete part of the work not previously allocated to the Claimant and that she considered that Siobhan Francis had the capacity to take it on. We find that those reasons were nothing whatsoever to do with disability of age.

[421]It follows that these claims should be dismissed. A3 Mrs Miles-Gale wanted Mrs Francis to apply for the [Band 6 Patient Facilitator’s role] but she stayed in the team and took over all the Claimant’s projects.

[422]The Claimant is factually correct when she says that Mrs Miles-Gale wanted Mrs Francis to apply for this Band 6 role at least in the sense that she encouraged her to do so by holding off the application deadline to give Siobhan Francis an opportunity to think about applying.

[423]The Band 6 role had been advertised. The Claimant was aware of that. She had not applied. She does not say that she spoke to Victoria Miles-Gale about the vacancy or that she expressed any interest in it. We need to consider against that background whether any reasonable employee in the Claimant’s position would consider that the encouragement offered by Victoria Miles-Gale placed her at a disadvantage. We have come to the conclusion that a reasonable employee, who had no interest in a particular vacancy, would not consider it a detriment if they were not encouraged to apply. In other words we accept the submissions made on behalf of the Respondent that the Claimant has failed to show that she was subjected to a detriment in this respect.

[424]The further limb to this allegation is that Siobhan Francis remained in the team and that she took all the Claimant’s work. We consider that this simply repeats the allegation A2 above. We have dealt with that and found no discrimination.

[425]We find ourselves able to make positive findings of fact about Victoria MilesGale’s reasons for encouraging Siobhan Francis to apply for the Band 6 role. We shall assume that the burden falls on Victoria Miles-Gale to explain her actions. We remind ourselves that in considering whether to accept any explanation we need to consider all the evidence. We find that Victoria Miles-Gale had previously worked with Siobhan Francis and had reached a positive view of her abilities. She was anxious to secure a strong field of candidates for the Band 6 role. She believed that Siobhan Francis was ready for a step up in her responsibilities. That finding is supported by the fact that not long after this Siobhan Francis did obtain a Band 6 role. We find that Victoria Miles-Gale did not speak to the Claimant about the role or even think about doing so. The Claimant had required encouragement and assistance to settle into her band 5 role. It was simply not on Victoria MilesGale’s radar that she would be interested in a promotion at that stage. We find that the only reason that Victoria Miles-Gale took the approach she did was her perception of who might be ready for the role. Age and disability played no part whatsoever in her thinking. A4 ‘Mrs Miles-Gale did not want [the Claimant] on her team anymore’

[426]This is the first time in the schedule that the Claimant’s core allegation against Victoria Miles-Gale appears. She makes similar and overlapping allegations elsewhere in her schedule. AT some points the Claimant had put her case on the basis that Victoria Miles-Gale was only ever doing the bidding of Kathryn Halford and performance managing the Claimant out of the organisation. The way this allegation is put seems to include some acceptance that there was a change of heart at some point – hence ‘anymore’. We agree with the Claimant that there was such a change of heart and shall set out our reasons for rejecting the Claimant’s broader theory of the case first before dealing with her narrower ‘change of heart’

[427]We have set out above our findings of fact in relation to the period when the Claimant was working as Kathryn Halford’s PA. We have found that Kathryn Halford concluded that the working relationship had broken down. She did not want the Claimant to continue to be her PA. The Claimant herself was deeply unhappy and had expressed that unhappiness in particular to Christinne Smith. The solution that was proposed was that the Claimant was seconded to the Patient Experience Team. The Claimant was pleased to move.

[428]The Claimant, supported by Antoinette Webber says that this move was part of a pattern of passing people to Victoria Miles-Gale’s line management in order that they could be performance managed out. It is the Claimant’s case that the elderly and disabled were singled out for this treatment.

[429]In order to establish a pattern there would need to be evidence to support the Claimant and Antionette Webber’s beliefs. Antoinette Webber deals with this at paragraphs 8 and 9 of her witness statement. Her language includes ‘Everyone in the department knew this’. Little detail of the factual basis for this supposed knowledge is given. She goes on to refer to Victoria MilesGale’s ‘doing the same’ to Christine Mathews, Michelle North and Esther Achugamoyonye. She makes a reference to another person who she says was called Julie who was going through the menopause. Antoinette Webber does not tell us anything about whether those individuals had performance management issues. We heard from Christine Mathews. She referred to her management by Victoria Miles-Gale. She considered her supportive. Christine Matthews is 9 years younger that the Claimant. We found Antoinette Webber’s evidence to be unsatisfactory in many respects. She has made broad allegations without providing the necessary detail to substantiate them. We treat her evidence with some caution.

[430]Claimant’s witness statement does not include any details of how anybody else was performance managed out of the business.

[431]We have regard to our findings about the approach of Victoria Miles-Gale to the Claimant prior to April 2021. We find that she spent a great deal of time giving the Claimant encouragement and advice. By February 2021 she was stepping back having taken to view that the Claimant had settled into her job. That is inconsistent with some plan to drive the Claimant from her job. On the balance of probabilities there is insufficient evidence to conclude that Victoria Miles-Gale had a pattern of performance managing her team members until they left the organisation.

[432]In order for us to conclude that there was an instruction or even an implicit expectation that the Claimant would be performance managed out of the Respondent’s organisation by Kathryn Halford or any other senior manager there would have to be material from which we could make finings of primary fact that would support the inference that the Claimant wishes us to make. There is nothing in the documents that we have seen that would suggest that there was either an instruction or expectation that a performance management process would be followed. In the circumstances that is somewhat surprising. From our findings of fact in the Claimant’s previous three roles her managers had some concerns about her performance. None of these managers had raised these concerns within the framework of the formal policy adopted by the trust. We find that there was a reluctance to engage with a formal process driven we find by the hope that informal solutions could be found. We find that Kathryn Halford, Gary Etheridge, Christine Smith and Victoria Miles-Gale all hoped that the Claimant’s move to the patient experience team would work out.

[433]As the Claimant rightly identifies there came a point when Victoria MilesGale formed the conclusion that the Claimant’s secondment to her team was not working and that her primary position was that the Claimant’s secondment should be ended. Victoria Miles-Gale accepts that that is the case. Her only reservation is that she did not know whether others would share her view or whether she would be expected to performance manage the Claimant.

[434]The Claimant did not learn of the fact that Victoria Miles-Gale wanted to end the secondment until Alan Wishart told her that on 5 May 2021. However, we find that Victoria Miles-Gale had formed that view by the time she met with Gary Etheridge on 15 April 2021.

[435]We have no difficulty in accepting the Claimant’s case that having her line manager form the conclusion that the secondment should be brought to an end was something that she could reasonably consider to be a disadvantage. The Claimant has therefore established that she has suffered a detriment.

[436]The Claimant has identified 5 comparators for the purpose of this claim. These are Siobhan Francis aged 39 at the time, Mirela Sidor aged 34, Christine Mathews aged 46, Alex Nugent aged 28 and Dean Hughes aged 31. None of these comparators are said to have any disability but Christine Mathews did have a lengthy absence from work because of her mental health. We accept that in the case of each comparator there is no evidence that Victoria Miles-Gale ever decided that she could not continue to work with them. As such each was treated more favourably than the Claimant.

[437]In order to test whether these 5 individuals are appropriate statutory comparators for the purposes of Section 23 of the Equality Act 2010 we need to consider what the material circumstances are. We find that the statutory comparator would need to have performed their job to the same standard as the Claimant. In addition we need to consider the events that took place in April 2021. The Claimant had responded to feedback in relation to the PEEAG agenda by suggesting that she had been misled by Christine Mathews. In the one-to-one meeting she has indicated to Victoria Miles-Gale that her team members were talking behind her back. We find that any statutory comparator would have needed to have responded in a broadly similar way to the Claimant.

[438]We do have any sufficient information to compare the standard of work of the Claimant’s comparators with her work which on our findings of fact would often fall short of the reasonable expectations of the role particularly when it came to the accuracy of written documents. The only proposed comparator that we know something about in this respect is Christine Mathews. We know that there were some concerns about her work addressed through performance management.

[439]There is no suggestion that any of the comparators responded to feedback in the manner that the Claimant had, by attacking a colleague. There is no suggestion that anybody else had told Victoria Miles-Gale that her team were talking behind her back.

[440]It follows in our view that the 5 comparators named by the Claimant were not in the same material circumstances as she was. That does not mean that we disregard the evidence of how there individuals were treated it simply means that their treatment is of evidential value. The greater the similarities between their position and that of the Claimant the more support that evidence would lend to the Claimant’s case. However, in the case of all comparators save for Christine Mathews there is little or nothing that can be drawn from the evidence. There is no evidence of performance issues, none of blaming a colleague and no unkind remark to Victoria Miles-Gale. Their positions are so different they are of little value. That leaves Christine Mathews who is younger than the Claimant but not by a great deal. She has not said she has a disability but was off work for a long time. She was performance managed but without the loss of her job. She says that she thought Victoria Miles-Gale very supportive.

[441]We will deal with the complaint of age discrimination first. We need to look at all the evidence and decide whether the Claimant has shown facts from which we could properly infer discrimination because of age. The Claimant was older than most of her colleagues. However, by the time anybody in the workplace reaches the age of 55 they are likely to be towards the top of the age range in the workplace. The fact that most of the Claimant’s colleagues were younger than her does not provide any real support for a complaint of age discrimination. In other words it does not demonstrate a workforce disproportionally dominated by younger workers.

[442]We have rejected the Claimant’s suggestion that there was any mention by Alan Wishart that she was close to retirement. It never happened and she was not close to retirement.

[443]We look then at the treatment of the Claimant. Here we shall focus on the treatment of the Claimant by Victoria Miles-Gale but we recognise that we are required to have regard to the entirety of the treatment. We have dealt with the other treatment elsewhere and simply incorporate those conclusions into our considerations here.

[444]If the conclusion reached by Victoria Miles-Gale was exceptionally harsh or surprising that is something that might properly support an inference of discrimination. When assessing the Claimant’s performance at this stage of the analysis we should rely on the objective evidence and our own findings and not the subjective assessments of Victoria Miles-Gale as to do so would be to take account of her explanation for the treatment.

[445]We find draw on our findings above. We find that the Claimant, whilst a generous and affable colleague, had a poor eye for detail. We find that she required a greater level of supervision than might have been expected of her grade. Some aspects of her project work had been poor – for example the post discharge evaluation report. That said the Claimant was settling in and Victoria Miles-Gale was broadly satisfied with her performance by midFebruary 2021. Objectively we consider that the Claimant was performing at a standard that would not have justified any intervention at that stage.

[446]We have made a finding of fact that the Claimant’s response to the changes made by Victoria Miles-Gale to the PEEAG minutes was wholly disproportionate. It was also unedifying that the Claimant thought that Christine Mathews should be blamed for what were in fact unimportant errors. We do not consider it at all surprising that Victoria Miles-Gale would seek to raise this with the Claimant which she did. She also raised some inappropriate comments made by the Claimant about Kathryn Halford and Gary Etheridge. We find that the Claimant was unrepentant. It was in this meeting that she the essentially told Victoria Miles-Gale that her team would be unpleasant about her behind her back. The fact that this was true, makes little difference.

[447]We do not consider it surprising that when after spending a great deal of effort assisting and coaching the Claimant who was performing weakly that Victoria Miles-Gale would respond to the events of April in the way she did.

[448]We pause then to take account of all the other matters that the Claimant has complained of. We have not found that age played a part in any treatment of the Claimant but must review that in the light of the totality of the evidence. The Claimant was 55, we have found some detriments have been made out, However, other than that there is nothing which in our view would support an inference of discrimination because of age. We find that the Claimant has failed to shift the burden of proof onto the Respondent. It follows that this claim should be dismissed.

[449]We shall not include such a lengthy analysis when dealing with the protected characteristic of disability. We have discussed the suggested comparators and shall take that into account here. In assessing this complaint we must be careful to separate the Claimant’s disabilities from any performance shortfalls caused by those disabilities. Discrimination by reason of a performance shortfall alone will not be unlawful under section 13 of the Equality Act although Section 15 might assist in those circumstances.

[450]We have conducted the same survey of the evidence. For the reasons we have given above we do not consider Victoria Miles-Gales actions are such that of themselves they give rise to a prima facie case of discrimination because of disability. We have come to the conclusion that, absent any explanation for the treatment, the Claimant has not proven facts from which we could conclude that Victoria Miles-Gale discriminated against the Claimant because of her disabilities.

[451]In case we are wrong about the burden of proof passing we shall assume that it did and ask whether Victoria Miles-Gale has shown that her reasons were nothing whatsoever to do with the Claimant’s protected characteristics.

[452]We find that by the end of March 2021 Victoria Miles-Gale’s view of the Claimant was that she needed a lot of support but that her performance was just about good enough. We find that the Claimant’s response to the changes in the PEEAG minutes was the first thing that caused Victoria Miles-Gale to start to think that the Claimant was not a good fit. We find that the Claimant’s unrepentant attitude and her telling Victoria Miles-Gale that the team members were talking about her was a tipping point. We find that Victoria Miles-Gale was deeply hurt to think that she was the subject of comments by the team. We have accepted that she was uncharacteristically tearful when she relayed this to Gary Etheridge. We find that it was these events that led Victoria Miles-Gale to the conclusion that the secondment should be ended. We find that these reasons had nothing whatsoever to do with age or disability. A5 ‘Christine Matthews being appointed to assist the Claimant with the PEEAG Agenda….Mrs Mattews giving her the wrong information’

[453]This is said to be direct discrimination by both Victoria Miles-Gale and by Christine Mattews. The protected characteristics are both age and disability.

[454]We have set out our findings of fact above. The Claimant was asked to prepare an agenda for a PEEAG meeting. It was suggested by Victoria Miles-Gale that if she had any questions she might approach Christine Matthews who had done the agenda in the past. Christine Matthews gave the Claimant some suggestions. She had been off on long term sickness and had not prepared an agenda for some time. Victoria Miles-Gale made some amendments to the agenda prepared by the Claimant. The Claimant became disproportionally upset and alleged that this was the fault of Christine Matthews.

[455]This is an aspect of the Claimant’s case that supports our conclusions that the Claimant has a very distorted perspective. Her case must be that Victoria Miles-Gale would have known or hoped that if the Claimant went to Christine Mathews for assistance Christine Mathews would make suggestions that would result in Victoria Miles-Gale being justified in making amendments. Her case against Christine Mathews is that she has given information that is incorrect because of age or disability. Given that it is common ground that Victoria Miles-Gale gave assurances to the Claimant that it was not an issue that the agenda required amendment it is very hard to see why the Claimant reacted in the way that she did or why she has maintained these allegations through to a full hearing.

[456]We do not consider that any reasonable employee would consider that they had been subjected to a detriment because the employee asked to assist has given some out of date information when that did not result in any criticism whatsoever.

[457]The Claimant has not established any facts from which we could properly conclude that the suggestion made by Victoria Miles-Gale that she seeks the assistance of Christine Matthews was because of age or disability.

[458]The Claimant has not established that any primary facts from which we could draw an inference that, in providing information to the Claimant, Christine Mathews was materially influenced by age or disability.

[459]If we have made any error in our analysis above we go on to address the reasons for the treatment. We find that the only reason that Victoria MilesGale suggested Christine Mathews as a person to seek support from was that she had done the agenda before. We accept Victoria Miles-Gale’s explanation that she had no idea that Christine Mathews would give the Claimant incorrect guidance but also that she was really not concerned if the agenda did need some input from herself. We find that those reasons have nothing whatsoever to do with age or disability.

[460]We find that Christne Mattews did her best to assist the Claimant but that, unknown to her, things had moved on whilst she had been off on sick leave. We find that any errors in the information she gave to the Claimant were inadvertent. We find that her actions were nothing whatsoever to do with age or disability.

[461]The most charitable, and in our view the most likely explanation for the Claimant beliefs regarding Christine Mathews is a consequence of the performance anxiety/adjustment disorder discussed by Dr Anderson in his report. It is our conclusion that the Claimant’s response to this has been completely disproportionate to the actions of her former colleagues.

[462]It follows from our conclusions above that the Claimant has failed to establish any disadvantage and even if we are wrong about that there was no discrimination. A6 ‘Mrs Miles-Gale telling Alan Wishart that she did not want the Claimant on the team’

[463]The only distinction between allegation A4 and this allegation is the fact that Victoria Miles-Gale communicated her wish that the Claimant’s secondment was brought to an end to Alan Wishart. The Claimant in her schedule suggests that both Victoria Miles-Gale and Alan Wishart are responsible. We consider that only the person doing the ‘telling’ can be said to be a potential discriminator. We accept that when Alan Wishart acted on the information it is possible at least that he did so for discriminatory motives and that that must be considered separately. The fact that the Claimant has suggested that the date of the discriminatory act was 5 May 2021, implies that it is Alan Wishart’s words during the meeting of 5 May 2021 which are the true subject of this allegation.

[464]For completeness, if it were really intended to name Victoria Miles-Gale as a potential discriminator in relation to the communication of her views by Alan Wishart then we would simply repeat the analysis we have set out in respect of allegation A4. We have accepted that the Claimant was subjected to a detriment when Victoria Miles-Gale formed the view that she did but have found that that was nothing whatsoever to do with age or

[465]We turn then to the actions of Alan Wishart. We draw on our findings of fact in respect of how Victoria Miles-Gale’s concerns were brought to his attention and the subject matter of the meeting that took place on 23 April 2021.

[466]We have not accepted the Claimant’s suggestion that the meeting she had with Alan Wishart was the first time she had any knowledge that there were concerns about her performance. The Claimant could not have been unaware that the reasons that she was offered a role in the Patient Experience Team was because Kathryn Halford had expressed concerns about her abilities. She must have recognised that in her one-to-one meetings with Victoria Miles-Gale in the initial stages she was being offered a high level of support and coaching. She was aware of the fact that Victoria Miles-Gale had made amendments to almost all of the written work that she had produced when giving feedback. Most importantly she had had two meetings on 15 and 22 April 2021 at which her performance was discussed. Even on the Claimant’s account the meeting of 15 April 2021 included a discussion about her performance and her behaviour. It is the Claimant’s own case that her interactions with Victoria Miles-Gale had often been emotional or tearful. What we have found is that the Claimant has never been told in terms that her performance was such that it was appropriate to follow the Respondent’s performance management policy.

[467]On our findings the discussion that Alan Wishart had with the Claimant was not something that arose only from recent events but was the culmination of events spanning some years but the fact that the work for Kathryn Halford then Victoria Miles-Gale had resulted in both managers coming to the conclusion that things could not go on as they had been. Alan Wishart had taken it upon himself to address that issue.

[468]We shall not limit our consideration of this complaint simply to Alan Wishart passing on the information that Victoria Miles-Gale wanted to end the Claimant’s secondment. That is artificial. The actions of Alan Wishart as a whole are what the Claimant views as discriminatory. That is that he informed her of Victoria Miles-Gale’s wishes and then made an offer that she could leave the trust under a settlement agreement. That proposal was his idea.

[469]We have considered whether the Claimant has proven facts from which we could infer that Alan Wishart’s actions were because of age. We leave out his explanation. The Claimant has established the treatment she complains of and that she was 55 years old. We have considered whether the treatment itself was to a degree that it called for an explanation i.e. that the treatment itself provided the ‘something more’. We do not consider that the treatment itself does provide that something more that in the absence of an explanation we could infer age discrimination. We are entitled to, and do, have regard to the fact that the Claimant had a highly unusual response to Christine Mathews suggestions in respect of the PEEAG Minutes and that the behaviour is the sort of thing that would concern any manager. Of equal importance was the fact that the Claimant had told Victoria Miles-Gale that her team were talking about her behind her back. A deeply hurtful remark. Those are matters that would objectively cry out to be addressed.

[470]We find that the Claimant has not proven facts from which we could infer that Alan Wishart’s treatment of her was because of age.

[471]We have reached the same conclusion in respect of disability. The Respondent has rightly conceded that at the meeting Alan Wishart had constructive knowledge of the fact that the Claimant’s menopausal symptoms amounted to a disability. However, we note that the decision to offer the Claimant a settlement agreement was taken before that meeting took place. Prior to that date we have not accepted that Alan Wishart knew of the extent of the Claimant’s menopausal symptoms.

[472]There is a distinction between an action taken because of performance concerns arising from a disability and the disability itself. Hence the need for Section 15 of the Equality Act 2010. We would accept that it is possible for both types of discrimination to arise from the same action. However what we need to examine is whether the Claimant’s disabilities themselves were any part of the reason for the treatment.

[473]We have looked at all the evidence but have come to the conclusion that the Claimant has not proven any facts from which we could properly infer that this treatment was because of her disabilities.

[474]In any event, we consider that we are in a position to make positive findings about the reason why Alan Wishart acted as he did.

[475]He has said, and we accept, that he has had conversations with the Claimant about her menopausal symptoms. It is clear that this is something he felt comfortable with and able to discuss. When the Claimant raised her menopausal symptoms during the meeting he immediately identified that that was something that the Claimant could rely on in any performance management process. He used the unfortunate phrase ‘mitigation’ but the meaning is clear. That in our view makes it less likely that he would discriminate against the Claimant because of that.

[476]He told us that the reason that he raised the suggestion of a settlement agreement was essentially because he believed that it was a far better option than a performance management process. He told us, and we accept that it is his strong belief, that many employees would welcome the opportunity of a settlement agreement rather than face a performance management process. He had in mind the Claimant’s employment history. He wished to find a solution acceptable to all parties. We find that this was the reason he made the proposal to the Claimant that he did. We find that that reason has nothing whatsoever to do with age. Despite the fact that the Claimant’s performance was impacted in some respects by her disabilities (see below) we find that Alan Wishart’s reasons were not the disabilities. We test that by asking whether a comparator without disabilities but with the same issues would have been treated the same way. We find the answer is yes. In those circumstances we find that the reason for the treatment had nothing whatsoever to do with disability.

[477]It follows that this complaint fails both in its narrowest form as drafted but also in the wider form we have dealt with above. A7 ‘Mr Wishart telling the Claimant that there might be a financial package available’

[478]There was no dispute that there was an offer of a financial package on 7 May 2021 at the second meeting between Alan Wishart and the Claimant. We would accept that the Claimant was very reluctant to leave the trust. Notwithstanding that she was prepared to engage in the negotiations we find that she wished that the issue had never been raised. In those circumstances we would accept that a reasonable employee could regard this process and these offers as a detriment.

[479]This second meeting is simply a continuation of the first. It would be disproportionate for us to repeat our reasoning. We find that Alan Wishart’s reasons for continuing to press his proposal to the Claimant were exactly the same as the reasons he had in the first place. We have found that those reasons were nothing whatsoever to do with age or disability. This claim fails for the reasons set out above. A8

[480]‘the Claimant considered that Mrs Miles-Gale did not need her in the team anymore, reasons why the appraisal was cancelled, and her job and projects were given to Mrs Francis’

[481]The date that is given for this is 11 April 2021. It is a hodgepodge of an allegation with a number of elements.

[482]It would be hypercritical to deal with the first part of the allegation by saying that the Claimant considering something cannot amount to discrimination by the Respondent. A fair understanding of the allegation is that the Claimant is suggesting that Mrs Miles-Gale had formed the opinion that she did not need the Claimant in the team. We find that Mrs Miles-Gale did not form that opinion until 15 April 2021. We accept that she had some real concerns before that but it was a combination of the Claimant’s unrepentant stance about the assistance she had received from Christine Mathews coupled with the fact that the Claimant said to Mrs Miles-Gale that her team said unpleasant things behind her back that persuaded Victoria Miles-Gale that the secondment should be ended.

[483]We have dealt with this element of this complaint above when dealing with allegation A4. There is no purpose repeating those reasons here. We adopt them and this aspect of the Claimant’s case fails for the same reason.

[484]The Claimant’s suggestion that her appraisal was cancelled by Victoria Miles-Gale is wrong. The appraisal was cancelled but not because of any decision taken by Victoria Miles-Gale but as a trust wide decision to replace the annual appraisal with a wellbeing session in the wake of the Covid pandemic. Given that that was a decision that applied to all employees regardless of any protected characteristics it is unnecessary to give any further reasons for saying that the act complained of had nothing whatsoever to do with age or disability. We have some difficulty understanding why the Claimant has advanced this as a detriment. She must have known the reasons that the appraisal scheme was not in place in 2021. She took part in the wellbeing meeting that replaced it. We regret to say that her focus on this once again shows a lack of perspective.

[485]The final part of this allegation says that the Claimant’s role was given to Siobhan Francis. We have found above that as a matter of fact it was not. This is a complete answer to this part of the allegation. A9 Mrs Miles-Gale appoint[ing] a new employee Band 6 role aged 28, Alex Nugent and as a Manager, Mr Dean Hughes on Band , in his early 30’s on permanent roles…’

[486]As we have set out above the Claimant is factually correct that these two individuals were recruited to permanent roles following a competitive recruitment exercise. The Claimant was aware of the roles. She did not apply for either. We find that if she had applied it is highly unlikely she would have been given a band 6 role and vanishingly unlikely she would have been given a band 7 role. The action of appointing these two individuals is said to be discrimination because of age and disability.

[487]We can deal with these allegations very briefly. We do not accept that it is a detriment for a person working in a team to learn of the appointment of others with different protected characteristics unless they can show that they were interested in the roles and that there was a something in the recruitment process that disadvantaged them OR whether the fact that others without their protected characteristics were appointed disadvantaged them in some way. The Claimant has not established either or those things nor are we able to discern any disadvantage to her.

[488]What the Claimant really appears to be complaining about is that she was seconded into the Patient Experience Team whereas the two individuals she has identified applied for and were given permanent jobs. In order to deal with this allegation, we shall move directly to the reason for the treatment. The reason for the fact that the Claimant was seconded and did not have a permanent role in the Patient Experience Team was that the policy of the Respondent is that all permanent roles must be advertised and filled in a competitive recruitment process. This provides a complete answer to the Claimant’s claims. This reason has nothing whatsoever to do with age or disability. A10 Mrs Miles-Gale said when the Claimant came down to the team, she was fragile and if she was going through [the] menopause everything else include [sic] have going on at home maybe she should think of doing a band 4 role’

[489]The Claimant identifies this allegation as having taken place on 6 May 2021. In our findings of fact we have found that the Claimant did come and speak to Victoria Miles-Gale on that day. It was on that day that the Claimant referred to herself as having difficulties due to the menopause. We have resolved the factual dispute about whether Victoria Miles-Gale said in terms that the Claimant should do a band 4 job and decided that it was not said. It follows from that finding of fact that the allegation cannot succeed. A11 ‘Mrs Miles-Gale told Mr Wishart that she wanted to end C secondment immediately despite C begged to stay in the team and asked for her help for her mental health and menopause but Mrs Miles-Gale never replied but instead only employed younger staff’

[490]Again this is a hodgepodge of an allegation. The Claimant gives two dates for this 5 May 2021 and 21 May 2021. There was no material discussion between the Claimant and Victoria Miles-Gale on 5 May 2021. That was the date she met with Alan Wishart. On 21 May 2021 Victoria Miles-Gale met with the Claimant to make a referral to Occupational Health.

[491]We have dealt with the first element of this complaint when dealing with allegation A4. The complaint repeats the suggestion that Victoria MilesGale told Alan Wishart that she wanted to end the secondment. It is factually correct, and we find a detriment, but was not discriminatory for the reasons we have given.

[492]The reference to the Claimant ‘begging to stay’ is not a reference to anything that happened on 5 May 2021 but on the following day when the Claimant came to see Victoria Miles-Gale in her office. It is factually correct that the trust of what the Claimant said on that day was that she wanted to stay in the Patient Experience Team. It was on this day that the Claimant referred to her menopausal symptoms. We do not accept that the Claimant made any reference to her mental health other than the effects of the menopause. The Claimant is also partially correct to say that Mrs Miles-Gale ‘never replied’. We have rejected the Claimant’s suggestion that Mrs Miles-Gale said that she should do a band 4 role.

[493]The Claimant has established that during and after this conversation on 6 May 2021 Victoria Miles-Gale did not take any steps to reassure her that her role in the team was secure. As such we would accept that the Claimant has established that she has suffered a detriment.

[494]We find that we are able to make positive findings about why, as she says, Victoria Miles-Gale stayed mainly silent and simply let the Claimant speak on 6 May 2021. We find that Mrs Miles-Gale was aware that there was an ongoing discussion raised by Alan Wishart about a settlement agreement. Victoria Miles-Gale believed that that would provide a resolution to her concerns about the Claimant’s performance and behaviour. She was alive to the fact that if there was no resolution via a settlement agreement, and no alternative role was found, she would need to manage the Claimant’s performance formally. She says, and we accept, that she did not want to give the Claimant any false assurances and in those circumstances she said and did nothing. We are satisfied that her reasons for doing so were nothing whatsoever to do with age or disability but were exclusively concerned with not interfering with the course of the negotiations. A12 Mr Wishart told C again that he would not be investing in her training

[495]The Claimant has inserted two dates for this in the schedule November 2018 and 5 May 2021. The Respondent has, with some justification, maintained that the allegation that there was a further repeat of this conduct on 5 May 2021 was not pleaded. It does not matter. We have not accepted that Alan Wishart said this, or anything remotely close to the words the Claimant attributes to him either in 2018 (when the Claimant was 52) or in the meeting on 5 May 2021 (in circumstances where to have done so would have been extraordinarily inflammatory.

[496]It follows that these two allegations fail on their facts. A13 ‘C told Mrs Miles-Gale that she was disappointed to hear she told Mr Wishart about her performing. C said that all her 1:1 note say she was doing a good job’

[497]This is a reference to the meeting that took place in Victoria Miles-Gale’s office on 6 May 2021. There is no actual allegation contained within the summary in the schedule or in the paragraphs of the particulars of claim referred to. However, we understand this complaint to be a complaint about Victoria Miles-Gale informing Alan Wishart of her concerns about her performance. That complaint has been fully dealt with under allegation A4. The Claimant is factually correct that the performance concerns were reported. She is not correct to say that all her one-to-one meeting notes said she was doing a good job. In any event she knew full well that there were concerns. We need not add anything further to what we have said in allegation A4. We would dismiss this claim for the reasons given there. A14 ‘Mrs Miles-Gale scribbled on the PEEAG Minutes C handed in and then wrote an additional 6 pages in red pen. C said Christina Matthews given C the wrong information….’

[498]The Claimant says that this took place on 11 April 2021, 10 May 2021, and 4 June 2021. The Claimant is conflating two pieces of written work. The reference to 11 April 2021 was to the agenda for the PEEAG meeting. The references to 10 May and 4 June 2021 are references to the minutes.

[499]We have dealt with both the PEEAG agenda and the PEEAG minutes in our findings of fact. We have reached the conclusion that there was no discrimination by either Christine Mattews or Victoria Miles-Gale in respect of the PEEAG agenda – see allegation A5 above. The allegation in respect of the PEEAG minutes is made against Victoria Miles-Gale alone.

[500]The Claimant is factually correct to say that when she sent the first draft of the PEEAG minutes to Victoria Miles-Gale Victoria Miles-Gale made hand written amendments including setting out additions. We have rejected the disingenuous description of those amendments as ‘scribbling’. It was a repeated throughout Ms Pankowski’s cross-examination despite the tribunal suggesting that hand writing could not be reasonably equated with scribbling.

[501]There was evidence both from Victoria Miles-Gale herself but also from Antionette Webber that it is Victoria Miles-Gale’s practice to print out documents for proof reading and then to amend by hand. That is commonplace at least some of the tribunal members do the same.

[502]We have set out in our findings of fact our own objective assessments of the amendments. We accept that we were not present at the meeting and cannot comment on some aspects of the minutes. What we can see for ourselves is that some amendments are directed towards passages that are poorly worded. Some make no sense at all whether through typos or errors in phraseology. The amendments deal with those basic errors.

[503]In those circumstances we have considered whether the Claimant could reasonably regard her draft being amended as a detriment. We accept that subjectively she did. We accept that anybody who received such extensive amendments after having spent two days on the task against the possibility of being performance managed would be disappointed. That still leaves the issue of whether they could reasonably view the treatment as a detriment. An unjustified sense of grievance is insufficient. If that is test we do not think that disappointment at being given honest feedback is sufficient to amount to a detriment. Lest we are wrong, we shall examine the reason for the treatment.

[504]We do not need to consider whether the burden of proof has passed to Victoria Miles-Gale to show the reasons for her amendments. We shall assume that it has. We find that Victoria Miles-Gale had discharged the burden of showing that her reasons for those amendments had nothing whatsoever to do with the Claimant’s age or her disabilities. He reasons for making the amendments were plainly and simply that she did not believe that the Claimant’s draft was sufficiently good enough to stand as the final version. She believed that the amendments that she proposed were necessary to achieve that standard. That is a complete answer to this claim. A15 ‘Mrs Miles-Gale wrote to all PPC members informing them that Mrs Siobhan Francis will be supporting them’

[505]There is no dispute that, once the Claimant had been taken out of the Patient Experience Team, with her agreement and consistently with the advice of Occupational Health, Victoria Miles-Gale did inform the PPC committee members that Siobhan Francis would be taking over the task formerly completed by the Claimant.

[506]We can deal with tis allegation very briefly given our findings of fact. We do not accept that the re-allocation of the Claimant’s duties in these circumstances is a detriment. If we are wrong about that then we find that the only reason that the PCC were informed, in discrete terms, about the changes to the team, was that the Claimant would, on what was described as a temporary basis, be unavailable to carry out the role of supporting the team. That is a reason that has got nothing whatsoever to do with age or A16 ‘Mrs Miles-Gale told C that when it came to the team she was in a fragile state and that if she was going through the menopause and everything else at home she should consider taking lower band work…’

[507]The date attributed to this allegation is 5 June 2021. By that time the Claimant had left the patient experience team. Factually the allegation appears to mirror the Claimant’s suggestion that these words were used on 6 May 2021. That is consistent with the submissions made by Ms Pankowski on the Claimant’s behalf. We have found that those words were not used on that occasion. It is correct that Victoria Miles-Gale referred to the Claimant as fragile when she joined the team when she was interviewed in connection with the Claimant’s grievance. That is possibly an explanation as to why the Claimant would attribute those words to Victoria Miles-Gale. When Ms Pankowski made her written submissions she included a reference to what Victoria Miles-Gale had said in her interview. We find it is likely that the Claimant has internalised this and believes that this is what was said to her face.

[508]It appears that this allegation is simply a repeat of A10. That is certainly consistent with the references Ms Pankowski makes in her submissions. If it is intended to refer to 5 June 2021 then we find that no such words were used on that day to the Claimant or anybody else.

[509]We find that there is nothing discriminatory in referring to the Claimant as being fragile when she joined the team. On her own account she had had her confidence knocked when working for Kathryn Halford. As a matter of fact she was fragile. When Victoria Miles-Gale said that she was during the grievance process in her witness statement she did so because that was actually the case. We do not find that this amounts to a detriment. A17 ‘Mrs Halford accusing the Claimant of not putting a link in the calendar for an important meeting with the Chief Nurse of England…’

[510]This allegation refers to the events of 17 September 2020. We draw on our findings of fact set out above. We have endeavoured above to put the incident in some context. That included the fact that Kathryn Halford had asked the Claimant to be very vigilant about her diary. This was a very important meeting which, had Kathryn Halford actually ever been invited to it would have been very embarrassing to have failed to join. Kathryn Halford probably deleted an e-mail which if she had noticed it would have told her that she was not invited to the meeting but the meeting remained in her diary, visible to the Claimant but with no details of how she might join. We have found that the Claimant bore some responsibility for the needless anxiety that Kathryn Halford experienced.

[511]The Claimant says that the ‘accusation’ that she had not included a link in the diary was discrimination because of disability. The first stage is to ask whether in the circumstances there was any detriment. We decide this point in the Claimant’s favour. Whilst we have not accepted the Claimant’s account that Kathryn Halford shouted at her we are sure that the Claimant felt that she was being expected to take all the blame. We find that Kathryn Halford is likely to have adopted her school mistress style that a number of witnesses have commented upon. The Claimant only bore some of the responsibility for these events and so can feel rightly disadvantaged by the tone adopted by Kathryn Halford. We find ourselves in alignment with the findings of Janet King who investigated this during the grievance.

[512]We then turn to the question of whether the actions were discriminatory. We need to look at what facts the Claimant has established and ask whether, in the absence of an explanation they would support a finding of discrimination. As we are dealing with a number of complaints directed towards the conduct of Kathryn Halford all said to be discrimination because of disability we shall attempt to identify the facts that might support an inference that this is the case.

[513]The Claimant names a number of comparators in respect of this allegation. These are Gemma Blackabee, Diane Clements and Colleen Smith. We find that the material circumstances relevant to this allegation is that the comparator ought to have reported to Kathryn Halford and been involved in a similar near miss for a very important meeting. The Claimant has not provided any evidence that Diane Clements or Colleen Smith had been in a similar situation. She did describe in her evidence an instance where Gemma Blackabee made an error. She had inadvertently sent patient details to an external body. It is clear from the text messages between Gemma Blackabee that she expected to be told off by Kathryn Halford for this. However, no serious criticism was directed towards Gemma Blackabee. The circumstances are not exactly the same but we regard this incident as providing some evidence of a disparity in treatment.

[514]We note that when Kathryn Halford learned that Gary Ethridge had not attended a meeting that she had expected him too the text messages sent by the Claimant suggest that she expected Kathryn Halford to be very angry and to give him a telling off. Whether that actually happened is not in our view as important as the fact that the Claimant knew that Kathryn Halford had a low tolerance of mistakes made by others. She expected others to live up to her standards. Has the burden shifted?

[515]Drawing those threads together we have considered whether the disparities between Kathryn Halford’s treatment of the Claimant and Janet Wingrove and her treatment of Gemma Blackabee together with all the surrounding evidence save for Kathryn Halford’s explanation sufficient that we could draw an inference that disability was a reason for the treatment. We find that she has not.

[516]As we have done elsewhere we shall address the issue of what were Kathryn Halford’s reasons for behaving as she did. We must have regard to the evidence relied upon by the Claimant whish she says supports an inference of discrimination. However, taking that into account, we have reached the conclusion that Kathryn Halford has shown a reason for her behaviour that has nothing to do with disability. She responded as she did because she thought that she was to attend a very important meeting. That meeting was in her diary but there were no details of how to join. She was in a panic. She correctly thought that it was the Claimant’s job to inform her of the contact details. Neither the Claimant nor Kathryn Halford knew that Kathryn Halford had not been invited. We find that any sharpness, or school mistress tone, was adopted because Kathryn Halford felt that the Claimant had not managed her diary with the level of detail that she expected. We find that that was the only reason why she responded as she did. She would have reacted in the same way to a person with or without a disability. It follows that there is a complete explanation for the treatment complained of that is not discriminatory. A18 ‘Ollie, Mrs Halford’s son brought a card and a plant for [the Claimant’] birthday; there was no acknowledgement from Mrs Halford on the card. She did not wish the Claimant a happy birthday…’

[517]In our findings of fact set out above we comment on how surprising it is that the Claimant would elevate this event into an allegation of discrimination. The fact that the Claimant complains about the lack of signature on a birthday card from Mrs Halford in circumstances where she knew that Mrs Halford had arranged for her son to buy a card and gift and to deliver it when she was not expected to be in work is remarkable. It shows a complete loss of perspective.

[518]We have no hesitation in concluding that the failure to sign the birthday card is not something a reasonable employee would consider to be a disadvantage. A reasonable employee would have had regard to the fact that Kathryn Halford had enormous responsibilities at this time. She was involved in real life or death decisions during the Covid pandemic. She was not due into work on the morning of the Claimant’s birthday yet, despite this, she made arrangements to ask her son to deliver a gift. A reasonable employee would have been grateful.

[519]That takes us to the second element of the allegation. The suggestion that Kathryn Halford did not wish the Claimant happy birthday later when she arrived at work. We do not consider that a reasonable employee would regard this as a detriment. If there had ben no card or no gift then we would have agreed with the Claimant that the lack of acknowledgement of her birthday might be a disadvantage. However, in the light of the fact that the Claimant’s birthday had been acknowledged with a marked effort by Kathryn Halford means that any failure later loses any edge whatsoever.

[520]In case we are wrong about the issue of a detriment we should say that we accept Kathryn Halford’s explanation completely. She says that if she did not say anything to the Claimant about her birthday it was most likely to be because the Claimant did not thank her for the card and gift she had provided. We find that that is an explanation that has nothing whatsoever to do with disability.

[521]As we have noted above, the fact that this allegation was made and maintained was, together with some others, a significant reason why we can place little confidence in the Claimant’s perspective of events. A19 ‘Gemma moved back to her role in Band 6…’

[522]There was no dispute between the parties that Gemma Blackabee reverted to the Band 6 role that she had done prior to her promotion. This was not exactly the same as the Band 5 PA role that the Claimant had done because Gemma Blackabee retained some additional responsibilities.

[523]In our findings of fact set out above we have concluded that both the Claimant and Kathryn Halford knew that their working relationship was unsuccessful. The Claimant welcomed the suggestion that she should take up a role in the Patient Experience Team.

[524]Dealing with this allegation on the narrow basis that is set out in the schedule is straightforward. The only reason that Gemma Blackabee returned to working at a Band 6 level was that there was a vacancy once the Claimant agreed to move into the Patient Experience Team. That reason is nothing whatsoever to do with disability. However, we do not think that that approach fully addresses the Claimant’s case as it was presented to us. Essentially what the Claimant says is that she was forced from her role because Kathryn Halford did not want her working as her PA for discriminatory reasons. We consider that in fairness we need to deal with that allegation.

[525]Above and below we have dealt with interactions between the Claimant and Kathryn Halford that have been said to be discriminatory or harassment. We have not found any instances of unlawful treatment. It is against that background that we need to assess whether exploring with the Claimant a move to the Patient Experience Team was an act of direct discrimination by Kathryn Halford.

[526]We accept that whilst the Claimant welcomed the move to the Patient Experience Team it was not something that she would have wanted had the role as Kathryn Halford’s PA worked out. She was disappointed that it had not and we find that that was not unreasonable. We therefore accept that the proposed move was a detriment.

[527]We have set out our analysis of the primary facts that might support inferences of discrimination in more detail elsewhere. For the same reasons we are not persuaded that in the absence of Kathryn Halford’s explanation there is any basis upon which we could properly infer that disability played a part in the Claimant’s treatment.

[528]If we assume that Kathryn Halford does bear the burden of showing a nondiscriminatory explanation of her actions then we find that she has discharged that burden. We find that she was the prime mover behind the proposal to transfer the Claimant to the Patient Experience Team. We find that her reasons for wanting the Claimant to transfer were founded in her concerns set out in correspondence with Christine Smith. In short she did not believe that the Claimant was performing at a sufficiently good standard to remain as her PA. She had proposed training and performance management but turned to the view that moving the Claimant to a role in project management was more aligned with her skills. She thought that the move was best for her and best for the Claimant. We find that those reasons are nothing whatsoever to do with disability. It follows that even viewing this complaint as a general complaint about leaving the role as Kathryn Halfords’s PA it does not succeed. A20 ‘[The Claimant] was moved to the Patient Experience Team to cover two Band 5 and 6 [sic], got paid for band 5’.

[529]We refer to our findings of fact above. The detriment alleged by the Claimant is a combination of the fact that she was doing the work of two people or that she was doing work that should have attracted payment at a higher band. Our findings of fact are sufficient to dispose of this claim. The Claimant was not doing the work of two people. Her work was carefully monitored by Victoria Miles-Gale and was, if anything, less than might have been expected of a person in a band 5 role. The Claimant did take on some duties of Christine Matthews but not those duties that would have meant that the role she did ought to have been considered a band 6 role. The Claimant has not established anything that a reasonable employee could complain about in relation to this allegation.

[530]This is exactly the same allegation as allegation A1, and it is unnecessary to add any further to what we have already said. A21 Mrs Halford told C the 3pm meeting was not in her diary and was concern[ed] that she was not doing her job properly’

[531]This allegation concerns the events of 9 November 2020. We have set out our findings of fact above. We have found that the Claimant failed to pick up from an e-mail that there was intended to be two meetings and had failed to provide Kathryn Halford with details of how to join that second meeting. She had made a mistake. Kathryn Halford did not reprimand the Claimant or say anything about her error to her that was critical on the day of the incident. We have found that Kathryn Halford did not say that the Claimant was not doing her job properly. We find that the Claimant at some level knows that she made a mistake. She has put words in Kathryn Halford’s mouth. We do not accept that the phrase was used.

[532]We do not consider that the Claimant has established a detriment. We do not consider that a reasonable employee in the Claimant’s position would regard the correspondence she received form Kathryn Halford as something that disadvantaged them . The Claimant had made an error and Kathryn Halford was trying to sort it out.

[533]If we are wrong about this then we need to consider why Kathryn Halford corresponded with the Claimant as she did. It is unnecessary to ask whether the Claimant has established a prima facie case. We are in a position to make positive finding of fact.

[534]We find that Kathryn Halford corresponded with the Claimant because she recognised that there was a meeting at 3pm and that she did not have the details she needed to join that meeting. She was asking the Claimant to assist her. She does not criticise the Claimant on the day. We find that her reasons for chasing the Claimant to provide contact details was that she was anxious to attend both meetings. Insofar as that implied any criticism of the Claimant her reason for that was that the Claimant had made a mistake. We find that those reasons were in no sense whatsoever because of

[535]We acknowledge that despite the fact that Kathryn Halford said very little about this incident at the time it fed into her view that the Claimant was not performing to the standards she expected. We have dealt with the more general suggestion that Kathryn Halfords reasons for suggesting a move to the Patient Experience Team were discriminatory above and rejected it. We need not repeat ourselves here. A22 ‘Mrs Halford took [the Claimant’s] NHSE project and gave it to Mrs Blackabee because she said that the Claimant was underperforming’

[536]Our findings of fact set out above are sufficient to deal with this allegation. Our findings are that the ‘NHSE’ project never fell within the Claimant’s remit in the first place. The project was not taken from her by Kathryn Halford who played no part in the allocation of this task to Gemma Blackabee. We have not accepted that Kathryn Halford suggested that the Claimant was underperforming in this context. In short the Claimant has failed to establish the factual basis for this complaint. There is no detriment and the lack of Kathryn Haford’s involvement in the decision means that she could not have discriminated in the way alleged because of disability. A23 ‘The Claimant applied for PA role to [Kathryn Halford] and was told she was overqualified…..she said she would help the Claimant in the business …she never did’

[537]Our findings of fact are sufficient to dispose of parts of this allegation. The Claimant was not overqualified nor did Kathryn Halford suggest that she was. She was in fact less qualified than Janet Wingrave the successful candidate. We have not accepted that Kathryn Halford made any offer to help the Claimant. It follows that there can not have been a reasonable expectation that she would do so. The Claimant has failed to establish that those acts or omissions she relies upon as acts of discrimination ever took place.

[538]What remains is a suggestion that the Claimant was not appointed to the role. However, she was appointed later when Joanne Wingrave resigned. We have considered whether the Claimant has proven facts from which we could conclude that her disabilities were any part of the reasons why she was not appointed. We have concluded that the Claimant has not. Joanne Wingrave was a very well qualified candidate. The Claimant was interviewed but not selected. Taking account of all the evidence there is nothing that would properly support an inference that the Claimant’s disabilities formed any part of the reasons she was not selected. Harassment – Schedule Section B

[539]The Claimant has advanced 13 claims brought under Section 26 and 40 of the Equality Act 2010. In almost all cases the facts relied upon correspond with the facts of the direct discrimination claims. We remind ourselves that we are applying a different legal test however there are aspects of our decisions in respect of direct discrimination that we can import into our findings in respect of harassment. We shall indicate where we do so. Law - Harassment contrary to Sections 26 and 40 of the Equality Act 2010

[540]A claim for harassment under the Equality Act 2010 is made under sections 26 and 40. The material parts of Section 26 reads as follows: 26 Harassment(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.

(2) ….

(3) ….

(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.

(5) The relevant protected characteristics are— age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.

[541]Section 40 of the Equality Act 2010 makes it unlawful for an employer to harass a person who is an employee or has applied for employment.

[542]The question of whether unwanted treatment ‘relates to’ a protected characteristic is to be tested applying the statutory language without any gloss Timothy James Consulting Ltd v Wilton

UKEAT/0082/14/DXA

. In Bakkali v Greater Manchester Buses (South) Ltd

[2018] IRLR 906

, EAT Slade J held that the revised definition of harassment in the Equality Act 2010 enlarged the definition. She said: ‘In my judgment the change in the wording of the statutory prohibition of harassment from 'unwanted conduct on grounds of race …' in the Race Relations Act 1976 s 3A to 'unwanted conduct related to a relevant protected characteristic' affects the test to be applied. Paragraph 7.9 of the Code of Practice on the Equality Act 2010 encapsulates the change. Conduct can be 'related to' a relevant characteristic even if it is not 'because of' that characteristic. It is difficult to think of circumstances in which unwanted conduct on grounds of or because of a relevant protected characteristic would not be related to that protected characteristic of a claimant. However, 'related to' such a characteristic includes a wider category of conduct. A decision on whether conduct is related to such a characteristic requires a broader enquiry. In my judgment the change in the statutory ingredients of harassment requires a more intense focus on the context of the offending words or behaviour. As Mr Ciumei QC submitted 'the mental processes' of the alleged harasser will be relevant to the question of whether the conduct complained of was related to a protected characteristic of the Claimant.’

[543]The need for a tribunal to take a rigorous approach to the question of whether conduct related to a protected characteristic was recently emphasised in Tees, Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

, EAT where the EAT said: ‘The broad nature of the 'related to' concept means that a finding about what is called the motivation of the individual concerned is not the necessary or only possible route to the conclusion that an individual's conduct was related to the characteristic in question. Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the tribunal which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the tribunal may consider it to be.’

[544]The Statutory Code of Practice at paragraph 7.18 says the following about when conduct should be taken as having the effect of creating the circumstances proscribed by Sub-section 26(1)(b): 7.18 In deciding whether conduct had that effect, each of the following must be taken into account: a) The perception of the worker; that is, did they regard it as violating their dignity or creating an intimidating (etc) environment for them. This part of the test is a subjective question and depends on how the worker regards the treatment. b) The other circumstances of the case; circumstances that may be relevant and therefore need to be taken into account can include the personal circumstances of the worker experiencing the conduct; for example, the worker’s health, including mental health; mental capacity; cultural norms; or previous experience of harassment; and also the environment in which the conduct takes place. c) Whether it is reasonable for the conduct to have that effect; this is an objective test. A tribunal is unlikely to find unwanted conduct has the effect, for example, of offending a worker if the tribunal considers the worker to be hypersensitive and that another person subjected to the same conduct would not have been offended.

[545]In Pemberton v Inwood

[2018] IRLR 542

Underhill LJ explained the effect of Sub-section 26(4) as follows [para 88]: ‘In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as3 having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.’

[546]In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

, which dealt with the legislation in place prior to the Equality Act 2010 there is a reminder of the need to take a realistic view of conduct said to be harassment. At paragraph 22 Underhill P (as he was) said: ‘Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very 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. Harassment – Discussions and Conclusions

[547]We shall deal with each of the claims of harassment in turn. Where we have not accepted the factual basis for the claim we shall deal with the claim very briefly.

[548]The Claimant has included comparators in the schedule. There is no requirement for a comparator in a case brought under Section 26 of the Equality Act 2010. That said, evidence of how persons without the relevant protected characteristic were treated might be useful in determining whether treatment was related to the Claimant’s protected characteristic. We have taken that into account in our decisions below but do not go through each alleged comparator in any detail. B-1 ‘Mrs Miles-Gale asking [the Claimant] for updates on the PEEAG and PCC meetings ….which she would not view until Monday’

[549]This allegation has no corresponding allegation of direct discrimination. The Claimant says that the imposition of this deadline was harassment related to age and disability. We have set out our findings of fact about this above. In particular, we have noted that the PCC meeting had taken place on 26 March 2021. The trust had an expectation that minutes would be circulated within 10 days of a meeting. We can see the sense in that. It would mean that the meeting was reasonably fresh in the minds of the participants.

[550]The first issue we need to consider is whether setting a deadline of 9 April 2021 was unwanted conduct. There is no threshold implicit in the word unwanted conduct. We would accept that we should put no gloss on the statute. All that is required is that the recipient of the conduct does not welcome the conduct. The Claimant did not welcome the deadline. She has satisfied the first part of the test.

[551]There is no requirement in section 26 that ‘Person A’ has any knowledge that person B has a disability. Indeed it is possible to harass a person who does not have the protected characteristic(s) the unwanted treatment relates to. We accept the Claimant’s case that she had difficulties in focusing due to what she describes as ‘brain fog’. We would accept that this would make it harder for her to meet deadlines. We accept that Victoria Miles-Gale was unaware of the fact that the Claimant’s disabilities had an impact on her speed of work. That is not fatal to the suggestion that the unwanted conduct related to disability but may be relevant in deciding whether the unwanted conduct had the prescribed consequences. Given the link between the Claimant’s disability and the unwanted deadline we shall proceed on the basis that the Claimant has shown that the unwanted conduct related to disability.

[552]We find that the only way in which setting a deadline could be said to relate to age is where ‘person A’, her Victoria Miles-Gale had the Claimant’s age in mind when the deadline was set. That requires us to make a finding of fact as to what was in Victoria Miles-Gale’s mind.

[553]We are not satisfied that the Claimant has shown any facts from which we could infer in the absence of an explanation by Victoria Miles-Gale that she had the Claimant’s age in mind when she set the deadline she did. If we are wrong about this we look to what evidence there is as to the reasons for the deadline. Victoria Miles-Gale has little memory of these events. Other sources of evidence include the Respondent’s policy that minutes will be circulated within 10 days. We were told and we accept that Victoria MilesGale was forced to allocate time to looking at the Claimant’s work. She has said that she would often do so first thing in the morning. That would in our view provide a good reason for setting a deadline on a Friday despite the fact that the review would not take place until Monday. We have found that the deadline that was set for the Claimant was generous by any standards. The task really was not very difficult. We are satisfied that Victoria MilesGale’s decision to set a deadline on 9 April 2021 did not have anything to do with the Claimant’s age. Whilst that claim fails at this stage we shall go on to consider the other elements.

[554]We then ask whether setting the deadline was for the purpose of violating the Claimant’s dignity or creating the prescribed environment. We have no hesitation in rejecting that. We find that, at least until the issue of the PEEAG agenda and the Claimant telling Victoria Miles-Gale that her colleagues were talking behind her back, Victoria Miles-Gale was doing her utmost to support the Claimant in the Patient Experience Team. Setting a perfectly reasonable deadline would be a very odd way of attempting to subject the Claimant to harassment.

[555]We then look at whether setting the deadline had the proscribed effect. We find that we need to consider whether the Claimant subjectively believed that imposing this deadline violated her dignity or created the proscribed environment. We would accept that the Claimant was unhappy and considered herself under pressure. We have some doubts that she felt as strongly as required by Section 26 but need not rest our decision on that basis.

[556]If the Claimant did subjectively believe that the deadline amounted having the effect required for harassment we need to consider whether in all the material circumstances it was reasonable for the conduct to have that effect. We have no hesitation in rejecting this suggestion. We consider that a reasonable person with the Claimant’s characteristics or age and disability would realise that it was necessary for Victoria Miles-Gale to set deadlines within which the work should be competed. If the deadline had been unfair or unreasonable it might have crossed this threshold. However there was nothing unreasonable about the deadline. The Claimant did not say at the time it was unreasonable and we do not believe she thought that it was. It would be wholly unreasonable for the Claimant to regard Victoria MilesGale’s conduct as having the proscribed effect. B2 ‘Five senior management staff held a meeting to discuss [the Claimant]’

[557]This allegation is made only on the basis of disability and not of age. This refers to the meeting that took place on 23 April 2021. The Claimant is factually correct that this meeting took place. We have found that Kathryn Halford did not attend this meeting.

[558]We would accept that as the meeting concerned the Claimant’s performance it was unwanted conduct.

[559]We would accept for the reasons we allude to above that the meeting related to disability. There were serious performance concerns as well as behavioural concerns that had led to the meting being called. One trigger event, the Claimant telling Victoria Miles-Gale that staff talked behind her back, does not appear to us to have anything to do with the Claimant’s disabilities. However, we have accepted the Claimant’s account of suffering brain fog. We would accept that this had an impact on her attention to detail and speed of her work. These were matters amongst Victoria Miles-Gale’s concerns. We therefore accept that the unwanted conduct related to

[560]We do not accept that the purpose of any of the participants in the meeting was to violate the Claimant’s dignity or create the proscribed environment. We are able to make a finding as to what the purpose of the meeting was. It was to address what was rapidly becoming a further broken working relationship between Victoria Miles-Gale and the Claimant. We find that it was held to address the genuinely held belief of Victoria Miles-Gale that the Claimant’s performance and behaviour was not of an acceptable standard.

[561]The next issue was whether holding the meeting had the proscribed effect. Here we have no doubt that the Claimant subjectively believed that it did. Once again her performance was being discussed by senior managers. She did not think that there was anything wrong with her performance. We accept that she felt humiliated.

[562]The final and more difficult question is whether holding this meeting could reasonably have the proscribed effect. As a tribunal we are acutely aware that performance management of any degree can be regarded as humiliating and offensive by the subject employee. On the other hand, an employer is entitled to expect a reasonable level of conduct and performance from an employee. We consider that that is true even where disability has played a part in the performance issues.

[563]We would approach the issue as follows. If in all the circumstances of the case the employer had a reasonable basis for considering that performance issues needed to be addressed, and if the proposed means were reasonable, then we do not consider that it would be reasonable for an those means to be taken as having the effect amounting to harassment. If that were not the case almost every attempt to manage a disabled employees performance would fall foul of Section 26.

[564]Examining the facts of this case against that standard we reach the following conclusions. We shall deal only with the fact that the meeting was called as B3 and B4 deal with the outcome of the meeting.

[565]We find that Victoria Miles-Gale acted perfectly reasonably in bringing her concerns about the Claimant’s behaviour and performance to Gary Etheridge and then Alan Wishart’s attention. There had been grumbling performance concerns throughout the Claimant’s time in the Patient Experience Team but the two most recent events added a different dimension. The Claimant’s reaction to the information given by Christine Matthews was wholly disproportionate and unpleasant. The response by the Claimant to Victoria Miles-Gale suggesting that she should not be rude about Kathryn Halford and Gary Etheridge was to tell her that her team talked behind her back. The past history was relevant. Kathryn Halford had found that the Claimant’s performance made it unsuitable for her to continue in her previous role. A meeting to discuss this was in our view inevitable. The fact that the Claimant had reduced the normally robust Victoria MilesGale to tears made this ever ore so.

[566]We find that the calling of the meeting passes the test of a reasonable management response to performance concerns that we have identified above. It follows that we do not find that the fact that a meeting was called to discuss the performance issues could reasonably have the effect of creating the proscribed conditions. It follows that this allegation fails on that basis. B3 ‘Mr Wishart told the Claimant to take 6 months money and leave the organisation completely’ B4 ‘Mr Wishart telling the Claimant that Mrs Miles-Gale said she was not performing’

[567]B3 refers to the meeting between the Claimant and Mr Wishart of 5 May 2021. At that meeting Mr Wishart did tell the Claimant that Victoria MilesGale had performance concerns. In fact he went beyond that and told the Claimant that Victoria Miles-Gale wanted to end the secondment and indicated that there might be formal performance management if she did not.

[568]In B4 The Claimant has referred her to the third of the meetings that she had with Mr Wishart on 13 May 2021. In fact at that stage the offer made by Mr Wishart to the Claimant was 10 months salary if she left the Respondent. Mr Wishart did not ‘tell the Claimant’ to take this sum of money he made an offer in that amount. Both he and she knew that she could refuse it. However, the thrust of the Claimant’s complaint is that in all the circumstances any offer at all was made. We accept her evidence that she did not want to leave the trust.

[569]As such the Claimant has established unwanted conduct in respect of each of these allegations.

[570]We accept that the unwanted conduct related to disability for the same reasons as we have given in allegation B2.

[571]For the same reasons as we have articulated in respect of allegation B2 we do not find that Alan Wishart’s reasons for having a series of meetings with the Claimant and making a proposal that she leave the organisation were held with the purpose of creating violating the Claimant’s dignity or creating the proscribed environment. Far from it. We refer back to our findings of fact. The reason that Alan Wishart focussed on a settlement agreement as the way forward was that he wanted to spare the Claimant from the process of performance management which, in his experience, would be unwelcome, distressing and undignified. We accept that these were his strongly held views.

[572]That leaves the issue of whether the content of the meetings on 5, 7 and 13 May 2021 had the effect of violating the Claimant’s dignity or creating the proscribed environment. The fact that Alan Wishart had a subjectively benign motive is irrelevant. We have set out what we consider the proper approach to be above.

[573]We consider our findings about the extent to which the performance issues were a bolt from the blue for the Claimant. It was her case that nobody had questioned her performance in the Patient Experience Team. We have not accepted that. The Claimant was aware that her written work has been considered less than the standard required to go out without amendment. Indeed it is her case that she was reduced to tears by Victoria Miles-Gale correcting her work. Of more significance there were the meetings on 15 and 22 April 2021. The Claimant could not have been unaware that Victoria Miles-Gale thought her response to any inaccuracy in the information provided by Christine Matthews was inappropriate. She can hardly have believed that her remark about team members talking about Victoria MilesGale was not a matter of concern. We do not accept that the Claimant was unaware that Victoria Miles-Gale had concerns about her work and behaviour.

[574]During the meting of 5 May 2021 the Claimant gave an explanation which she said explains any shortfall in performance namely her menopausal symptoms. Alan Wishart explained, in our view in a rather clunky way, that if there was a performance management process these issues could be explored.

[575]We would accept that from one perspective the discussions instigated by Alan Wishart would have given the Claimant the impression that the Respondent thought it best if she left her employment. However, we find that both the Claimant and Alan Wishart knew that she could not be compelled to accept a settlement agreement. Equally they both knew and understood that the alternative to leaving was a process of performance management or possibly a change of role.

[576]The question of whether in the circumstances it was reasonable for the unwanted conduct to have the proscribed effect must take in all the relevant circumstances including the Claimant’s subjective view. We have come to the conclusion that the unwanted conduct could not reasonably have the effect of creating the proscribed conditions. The alternatives to Alan Wishart’s approach were equally stark for the Claimant. She would have faced a performance management process. Her conduct in April amply justified that, whether disability was a contributary cause or not. Giving her the option of avoiding that was in our view insufficient to amount to harassment. B5 ‘The Claimant receiving an e-mail from Mrs Halford accusing her of not following instructions…’

[577]This allegation is a reference to the events of 29 May 2020 where Mrs Kathryn Halford had expected two senior managers to attend a meeting to cover for her.

[578]We believe that we can deal with this allegation very simply. We refer to our findings of fact. Kathryn Halford did not accuse the Claimant of not following her instructions. The Claimant’s view that the correspondence bears this inference does not stand up to objective scrutiny. The Claimant has failed to make out the facts necessary to substantiate this allegation.

[579]We do not need to deal with the question of whether any unwanted conduct related to disability. In this instance the Claimant did not make any error and we struggle to see why the conduct complained off might relate to disability. But we do not need to decide the matter on that basis.

[580]On the actual facts established we would have rejected any suggestion that the purpose of Kathryn Halford’s correspondence was to violate the Claimant’s dignity or create the proscribed environment. Her purpose was quite simply to ensure that people knew what meetings they ought to be attending.

[581]We find that the actual discussions about this issue fell a long way short of the conduct required in order that it would be reasonable for the conduct to have the prescribed effect. If the bar was that low almost any management instruction might amount to harassment. In reaching that conclusion we have viewed this incident against the whole background. We would accept that the Claimant’s working relationship with Kathryn Halford was put under pressure by Kathryn Halford deferring to Gemma Blackabee. We have also had regard to the tendency of Kathryn Halford to speak to junior staff in what has been referred to as a headmistress style. However, even viewed against that background the exchange between the Claimant and Kathryn Halford relating to this matter could not reasonably be regarded as harassment. B6 Mrs Miles-Gale pressures C to finish a meeting minute which was not due until the following week, by asking Mrs Mathews and Mrs Francis ‘would this be done before she leaves this evening’.

[582]This allegation of harassment, said to relate to age and/or disability refers to the Claimant’s preparation of the PEEAG minutes on 2 June 2021.

[583]We accept that the Claimant was given an instruction to prepare the PEEAG minutes of the meeting that took place on 27 May 2021 by 2 June 2021. The Respondent’s general policy required minutes to be circulated within 10 days of a meeting. Giving the Claimant a deadline of 2 June 2021 was slightly in advance of when the policy would expect the minutes to be circulated. We accept that for the Claimant this was unwanted.

[584]We have made findings above about the circumstances when this deadline was imposed. Victoria Miles-Gale made it clear that if there were difficulties meeting this deadline then the Claimant should let her know. She then went to some efforts to relieve the Claimant of other tasks so that she could focus on preparing the minutes.

[585]We accept the evidence of Victoria Miles-Gale that having to check the Claimant’s work was burdensome. She had previously had to spend some time checking the Claimant’s work and making corrections. She says that this is what influenced her decision to impose a deadline. We accept that explanation. We have found above that the deadline was very generous given scope of the task.

[586]We have accepted that Victoria Miles-Gale made enquiries of Christine Matthews and Siobhan Francis about the progress the Claimant was making. We would accept that this was a further aspect of unwanted conduct.

[587]We then turn to the issue of whether the instruction/enquiry related to age. There is nothing inherent in the instruction or enquiry that means that it was. We would accept that if the Claimant’s age was part of Victoria Miles-Gale’s reasons for giving the instructions that would be sufficient. Victoria MilesGale says that the Claimant’s age had nothing whatsoever to do with her actions. Approaching this question in the same way as an allegation of direct discrimination we put to one side Victoria Miles-Gale’s explanations and look to see whether there are facts that would support an inference that age played any part in the instructions. We have come to the conclusion that other than the fact that the Claimant was given a deadline and was at the top of the age range in the team there is nothing that would support an inference that age played any part in the actions of Victoria Miles-Gale. If we are wrong then we go on to find that the only reasons that Victoria MilesGale had for setting a deadline and enquiring about whether it would be met were that she, rightly, anticipated that when the Claimant had completed a draft of the minutes she needed some time to ensure that they were of a good enough standard to be circulated and that she was under pressure herself. We find that these reasons did not relate to age in any way.

[588]By 2 June 2021 Victoria Miles-Gale had some knowledge that the Claimant had symptoms of the menopause. She had been told that on 6 May 2021. We accept the Claimant’s evidence that the symptoms of the menopause made it harder for her to focus and therefore meet deadlines. Whilst we would not accept that the reason that the deadlines was set and the enquiry as to progress made was because of the Claimant’s disabilities we would accept, that on the looser test of ‘related to’ the Claimant can show that the deadline did relate to her disabilities.

[589]Our findings as to Victoria Miles-Gale’s reasons for imposing a deadline are sufficient to dispose of any suggestion that she acted with the purpose of violating the Claimant’s dignity and/or creating the prescribed environment. She did not. It follows that we need to consider whether the treatment should be taken to have that effect.

[590]We accept that the Claimant felt that she was being put under unfair pressure by Victoria Miles-Gale. In the context of the discussions with Alan Wishart and the pending performance management process we would accept that subjectively the Claimant considered that Victoria Miles-Gale was creating an offensive or humiliating environment.

[591]We then need to consider whether it was reasonable for the treatment complained of to have the effect of creating the proscribed environment. It should be apparent from our findings of fact set out above that we consider that the Claimant was given a reasonable deadline to complete a relatively straightforward piece of routine work. We have then accepted that Victoria Miles-Gale diverted other tasks from the Claimant as soon as she raised these as being difficult. The Claimant was in fact able to comply with the deadline she was given although she had to work for a short period after 17:00pm.

[592]We draw on our conclusions in the reasonable adjustment claims. There we have found that regardless of any issues of knowledge it would not have been reasonable for the Respondent, through Victoria Miles-Gale to make any further adjustments for the Claimant. The approach of Victoria MilesGale was sufficiently flexible she gave the Claimant ample time to complete this task even making full allowances for the additional time the Claimant needed.

[593]We conclude that it is not reasonable to regard the actions of Victoria MilesGale as having the proscribed effect. On an objective basis the actions were fair, reasonable and necessary even when any knowledge of the Claimant’s disabilities was taken into account. As such we do not find that Victoria Miles-Gale’s actions amounted to harassment related to age or disability. B7 ‘C was redeployed and Mrs Miles-Gale was still sending her intimidating e-mails….’

[594]This allegation is directed towards Victoria Miles-Gale it is said to be harassment relating to age and/or disability. It concerns a single e-mail where Victoria Miles-Gale asked the Claimant about information that she believed was missing.

[595]We consider that our findings of fact set out above explain why this allegation does not succeed. The e-mail is not intimidating. We very much doubt that the Claimant believed that it was. We have expressly found that that was not its purpose.

[596]We find that the sending of this e-mail did not relate in any way to age or disability. We find that Victoria Miles-Gale’s only purpose in sending the email she did was to seek an explanation about information that was thought to have been missing. That is a complete explanation. The Claimant does not suggest that her disabilities had any connection with the missing documents.

[597]The principle reason why this claim does not succeed is that no reasonable employee in the Claimant’s circumstances would have regarded the receipt of Victoria Miles-Gale’s e-mails as being capable of having the effect of violating her dignity or creating the proscribed environment. It was a simple enquiry, crossed wires at worst. Even against the entire background circumstances including the Claimant’s subjective feelings that e-mail could not reasonably have been regarded as having the proscribed effect. B8 ‘Mrs Miles-Gale amended C’s minutes……’

[598]This allegation relates to the PEEAG minutes of the meeting of 27 May 2021. It is said to be harassment because of age and/or disability. Our findings of fact are set out above. These need to be read with our conclusions on allegation A14 and B7 above.

[599]It is correct that Victoria Miles-Gale made extensive hand written amendments to the draft minutes prepared by the Claimant. We have rejected the Claimant’s criticism of that style as ‘scribbling’. We accept that the Claimant was upset that her work was thought to require such substantial revision. We accept that this amounted to unwanted conduct.

[600]We find that the Claimant has not made out a prima facie case that this conduct related to age. Even having regard to the fact that Victoria MilesGale had made corrections to almost every piece of written work the Claimant prepared and to the fact that Victoria Miles-Gale had by this stage informed Alan Wishart that she did not want the secondment to continue we find that there is insufficient evidence from which we could draw an inference that the reason the amendments were made related to the Claimant’s age.

[601]For the reasons set out when considering the allegation at B7 we accept that the Claimant’s ability to complete the minutes to a professional standard was partially due to her disabilities. Applying the wider test of ‘related to’ we accept that correcting this work did relate to those disabilities.

[602]We are in a position to make a clear positive finding about the reason Victoria Miles-Gale had for making the corrections she did. We find that the reason she made amendments was that she genuinely (and in our view reasonably) believed that the minutes as drafted required improvements before they could be circulated. We find that this was her only reason for making the amendments. It follows that she did not do so for the purpose of violating the Claimant’s dignity or creating the proscribed environment.

[603]We then consider whether the treatment had the proscribed effect. We have already accepted that the Claimant was upset when she saw the scope of the amendments. Against the background of the discussions with Alan Wishart and the pending performance management process we accept that she would have felt deeply wounded at the implication that her work was not up to standard. That is something we need to take into account when assessing whether the treatment amounted to harassment.

[604]We then need to view the Claimant’s subjective feelings against the whole background and ask whether it was reasonable for the treatment she complains of to have the proscribed effect. We ask ourselves what alternatives Victoria Miles-Gale had. She could not have been expected to allow the minutes produced by the Claimant to go out as drafted. They were not to what she regarded as a reasonable standard. She could of course have amended them and not returned them to the Claimant but the Claimant would have learned of that and would have been equally offended. We find that once Victoria Miles-Gale reasonably considered that amendments were necessary she had no realistic option other than to make her amendments and to offer to discuss them with the Claimant and that is what she did.

[605]We have come to the conclusion that objectively the unwanted conduct complained of cannot reasonably have had the effect of amounting to harassment. It follows that this claim cannot succeed. B9 ‘Mrs Miles-Gale felt it necessary to inform the team that C is being performance managed’

[606]We have set out our findings of fact about this above. We have not accepted that Victoria Miles-Gale ever did inform the team that she was being performance managed. We have found that the Claimant told a number of people that she was being performance managed. It may be that that has led her to believe that Victoria Miles-Gale was the source of that. We have not accepted the evidence of Antionette Webber in relation to this. Given that we have not accepted the factual basis for the claim it cannot succeed. B10 ‘…The Claimant was blamed by Mrs Halford for not having the correct information in her diary…’ B12 ‘Mrs Halford telling the Claimant to telephone the organisation to find out who the person is’

[607]This is an allegation against Kathryn Halford relating to the meeting with the NEL Chief Nurse on 29 October 2020. The Claimant says that this was harassment related to disability.

[608]In the way that the Claimant put these two allegations it appeared that she may have been confusing the events of this day with those of 17 September 2020 which form allegations A17 and B11.

[609]In relation to the events of 29 October 2020 we have set out our findings of fact above. We have found that Kathryn Halford was reasonably concerned that she had not known of the subject matter of the proposed meeting in advance. She expected that the Claimant when managing her diary would include sufficient details of proposed meeting that would allow Kathryn Halford to ensure that it was necessary for her to attend personally. She suggested that in future the Claimant might ring the organisers of meetings to get that detail.

[610]We note that there is no threshold for unwanted conduct. We accept that by October 2020 the Claimant did not want any management instructions from Kathryn Halford. As such she has established that something happened that was unwanted.

[611]We are in a position to make clear positive findings as to why Kathryn Halford acted as she did. We find that the only purpose Kathryn Halford had in sending the e-mail she did to the Claimant was to ensure that in the future she had more information in her diary. It is not the Claimant’s case that she made any error that arose from any disability. We do not find that that instruction related to disability in any way whatsoever.

[612]If we are wrong about the ‘related to’ question we consider that our findings as to the reason why Kathryn Halford gave the instructions that she did mean that she did not act with the purpose of creating the proscribed environment.

[613]Even having regard to the difficult relationship between the Claimant and Kathryn Halford we have difficulty accepting that the Claimant subjectively regarded Kathryn Halford’s e-mail of 29 October 2020 as having the proscribed effect. However, assuming that in the Claimant’s favour we still need to consider whether in all the material circumstances, including the poor relationship, it was reasonable for the e-mail to have the proscribed effect. We find that it was not. It was a perfectly sensible management instruction to a PA. Any reasonable employee would have recognised that. It therefore does not amount to harassment. B11 ‘Mrs Halford thought she was invited to the Chief Nurse of England Meeting. She called C and started to shout…accused her of not putting a link in her calendar..’

[614]This allegation relates to the events of 17 September 2020. The Claimant says that Kathryn Halford’s conduct amounted to harassment because of disability. The allegation corresponds with A17. Our conclusion in respect of the claim of direct discriminations is that the actions of Kathryn Halford were not because of disability.

[615]We would accept that the Claimant considered the criticism of her by Kathryn Halford to be unwanted conduct.

[616]The fact that we have decided that Kathryn Halford’s conduct in relation to this incident was not because of disability does not rule out the fact that it might relate to disability. The latter test is broader. However there must still be some basis upon which the treatment might be said to relate to disability. Elsewhere we have accepted that if any error or performance issue arose that was connected with a disability that might suffice. We have found that the Claimant ought to have realised that there was a meeting in Kathryn Halford’s diary and made a proactive effort to acquire joining details in advance. Had she done so she would have discovered that Kathryn Halford had not been invited. We have accepted the Claimant’s evidence that her ability to focus impacted on her performance. As such we accept that this error related to the Claimant’s disabilities.

[617]We draw on our findings in A17. We are satisfied that the reasons for the treatment that we have identified there exclude the possibility that Kathryn Halford acted with the purpose of creating the proscribed environment. She acted as she did because she thought initially that she was going to miss an important meeting and latterly felt that if the Claimant had been proactive this could have been avoided. She did not act with any purpose of making life unpleasant for the Claimant.

[618]We turn then to whether the unwanted conduct had the proscribed effect. We would accept that the Claimant was upset by the criticism of her. In particular when felt that it was unfair when the issue would not have arisen had somebody else not deleted the e-mail informing Kathryn Halford that she had not been invited. We accept that, subjectively, the Claimant though that this amounted to a hostile or offensive environment.

[619]Taking into account all of the surrounding circumstances we have come to the conclusion that it was not reasonable for the Claimant to regard Kathryn Halford’s conduct as having the effect of creating the proscribed environment. When seen against the background a reasonable employee would have recognised quite how concerned Kathryn Halford would have been when she believed that she was going to be unable to join an important meeting with the Chief Nurse of England. A reasonable employee would have recognised that it was not unfair to expect a PA to ensure that there were contact details for any meeting that remained in the diary. In all the circumstances we find that Kathryn Halford’s conduct in articulating those concerns could not reasonably be taken has having the proscribed effect. B13 ‘C made a grievance against management and later on the same day she received a letter stating she was not performing well at work’.

[620]This allegation refers to the fact that on 25 May 2021 the Claimant was sent an invitation to a meeting under the Respondent’s performance management policy by Victoria Miles-Gale. When including this allegation on the schedule the Claimant has identified Kathryn Halford, Victoria MilesGale, Alan Wishart and Kenye Karemo as being the people responsible. The allegation is that sending this letter amounted to harassment because of age and disability.

[621]We find that when it became apparent to Alan Wishart that the Claimant was not going to agree the terms of a settlement agreement he advised that it would be necessary to address any performance concerns through the Respondent’s formal policy. As the Claimant was still under the line management of Victoria Miles-Gale she was the one expected to follow that policy. We find that Kathryn Halford was aware of this but do not accept that she was a decision maker. Kenye Karemo was unaware of the decision. The Claimant during her oral evidence accepted that Victoria Miles-Gale was the person she considered responsible for this claim.

[622]The implication in the allegation is that the performance management process was instigated in response to the grievance. The timing of the emails shows that that cannot be the case.

[623]We accept that for the Claimant the receipt of the letter inviting her to a meeting under the performance improvement policy was unwanted conduct.

[624]We need to consider whether the unwanted conduct related to age. We consider it unnecessary to rely on the burden of proof. We are in a position to make clear findings as to why the letter was sent to the Claimant. We draw on our findings of fact set out above. We find that the reason that Victoria Miles-Gale came to the conclusion that the secondment was not working was a concern about the Claimant’s performance that was then sharply amplified by her wish to blame Christine Mathews for giving her the ‘wrong’ information in respect of the PEEAG agenda and the fact that she would not let this go. This was followed by the Claimant telling Victoria MilesGale that her team talked behind her back. The problem was passed to Alan Wishart who failed to secure a resolution by agreement. That left Victoria Miles-Gale with the job of managing the Claimant. She wanted to address the performance issues she had identified. We have surveyed the entirety of the evidence but found no indication anywhere that the Claimant’s age was taken into account in any way. We are satisfied that the reasons for the treatment that we have identified were the only reasons for Victoria MilesGale taking the steps that she did. We find that the unwanted treatment did not relate to age in any way at all.

[625]We turn to the question of whether the unwanted treatment related to disability. Our findings above are sufficient to exclude any suggestion that the treatment was because of disability per-se. The concerns that led to the decision were not about disability itself but about performance and behaviour. As we have noted elsewhere if disability played a part in the performance that had caused concern then we find that any action in response would relate to disability. We should make it clear. We do not find that all the Claimant’s behaviour and levels of performance are attributable either to anxiety and depression or to her menopausal symptoms or to a combination of both. We have had no example that these disabilities had any part to play in the Claimant to make the unkind and unnecessary comment that team members talked behind Victoria Miles-Gale’s back. However, we do accept that the Claimant’s ability to focus and concentrate was adversely affected and that this meant that her work was slower than it would have been otherwise. Given that the performance concerns included the speed and quality of the Claimant’s written work we are satisfied that the performance concerns can be said to have related to the Claimant’s disabilities.

[626]We rely on our findings above as to the reasons that Victoria Miles-Gale instigated the performance management process. We find that the reasons were only to address genuinely held concerns. We have emphasised the word only to make it clear that we find that those reasons did not include acting for the purpose of violating the Claimant’s dignity or creating the proscribed environment. We find that to be the case notwithstanding the fact that Victoria Miles-Gale knew that the Claimant would be offended by the criticism of her performance. That was an inevitable consequence not a purpose.

[627]We accept that subjectively the Claimant would have regarded being placed on a performance management process to have the effect of creating a humiliating and offensive environment. The Claimant before us was reluctant to accept that there was any issue at all with her performance. In her view she had been singled out for entirely unwarranted criticism. With that in mind there is little doubt that she genuinely felt that the unwanted conduct had the effect of creating the proscribed environment.

[628]The issue for us is whether in all the circumstances it was reasonable to regard the unwanted conduct as having that effect. We find that it was not. In very many cases employees subjected to performance management processes will feel humiliated. That is an understandable subjective response. However, the objective element of Section 26 must in our view have regard to the needs of an employer who genuinely and reasonably has concerns about behaviour and uses reasonable means to address this. Whether a performance management process crosses the line into harassment when some of the performance concerns relate to disability is a question of fact and degree.

[629]We find that the performance concerns held by Victoria Miles-Gale were genuinely held. We find that those concerns were entirely reasonable. We take into account the fact that some aspects of those concerns arose in connection to the Claimant’s disabilities. Having a disability does not require performance concerns to be ignored although they ought to be a factor in any outcome. Here the Claimant had already been told by Alan Wishart that she could raise her menopausal symptoms as an issue during any performance management process.

[630]We find that taking account of these matters and the surrounding circumstances informing the Claimant that she was to be invited to a meeting to discuss her performance could not reasonably have the effect of creating the proscribed environment. Discrimination because of something arising in consequence of disability – Schedule Section D

[631]The Claimant has brought 4 claims under Sections 15 and 39 of the Equality Act 2020. They all differ in their nature and it is necessary to deal with each in turn. Discrimination because of something arising in consequence of disability – Legal principles

[632]Section 15 of the Equality Act 2010 says: 15 Discrimination arising from disability(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.

[633]In Secretary of State for Justice and anor v Dunn EAT 0234/16 the EAT confirmed the position in the Statutory Code of Practice para 5.2, that the four elements that must be made out in order for the claimant to succeed in a S.15 claim are: 633.1. there must be unfavourable treatment 633.2. there must be something that arises in consequence of the claimant’s disability 633.3. the unfavourable treatment must be because of (i.e. caused by) the something that arises in consequence of the disability, and 633.4. the alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.

[634]The Statutory Code describes what might amount to a detriment in paragraph 5.7. It says: For discrimination arising from disability to occur, a disabled person must have been treated ‘unfavourably’. This means that he or she must have been put at a disadvantage. Often, the disadvantage will be obvious and it will be clear that the treatment has been unfavourable; for example, a person may have been refused a job, denied a work opportunity or dismissed from their employment. But sometimes unfavourable treatment may be less obvious. Even if an employer thinks that they are acting in the best interests of a disabled person, they may still treat that person unfavourably.

[635]In Williams v Trustees of Swansea University Pension and Assurance Scheme and anor

2019 ICR 230

, SC the Supreme Court approved the guidance in the Statutory Code with Lord Carnwath, giving the Judgment of the Court saying: ……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 [Counsel] 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.

[636]In asking whether treatment is unfavourable there is no need to seek a comparison with the treatment of others. The Statutory code says, at paragraph 5.6: ‘Both direct and indirect discrimination require a comparative exercise. But in considering discrimination arising from disability, there is no need to compare a disabled person’s treatment with that of another person. It is only necessary to demonstrate that the unfavourable treatment is because of something arising in consequence of the disability.’

[637]At paragraphs 5.8 and 5.9 the Statutory Code says this about the requirement to show that there is ‘something’ that arises as a consequence of disability: 5.8 The unfavourable treatment must be because of something that arises in consequence of the disability. This means that there must be a connection between whatever led to the unfavourable treatment and the 5.9The consequences of a disability include anything which is the result, effect or outcome of a disabled person’s disability. The consequences will be varied, and will depend on the individual effect upon a disabled person of their disability. Some consequences may be obvious, such as an inability to walk unaided or inability to use certain work equipment. Others may not be obvious, for example, having to follow a restricted diet.

[638]The approach to the question of whether unfavourable treatment is ‘because of’ ‘something arising in consequence’ of disability is that set out in Pnaiser v NHS England and anor

2016 IRLR 170

, EAT where Simler P (as she was) said:(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 section15 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, contrary to Miss Jeram's submission (for example at paragraph 17 of her Skeleton).

(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 (described comprehensively by Elisabeth Laing J in Hall), 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, 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 the causal link between the something that causes unfavourable treatment and the disability may include more 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 submission, 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.

[639]To demonstrate that unfavourable treatment was ‘because of’ something arising in consequence of disability it is sufficient to show that the ‘something’ was an effective cause and, if it was, it is immaterial that there were other effective causes of the treatment see Hall v Chief Constable of West Yorkshire Police

2015 IRLR 893

, EAT and Charlesworth v Dransfields Engineering Services Ltd EAT 0197/16

[640]An employer cannot be liable under this section for any unfavourable treatment unless they knew or ought to have known that the Claimant was disabled – see sub-section 15(2) above. The relevant knowledge must be held at the time the employer treats the employee unfavourably see Baldeh v Churches Housing Association of Dudley and District Ltd EAT 0290/18 and Stott v Ralli Ltd

2022 IRLR 148

, EAT.

[641]However, once the employer has the required knowledge of disability it is irrelevant whether they recognised that the ‘something’ that caused their act or omission arose as a consequence of disability, see City of York Council v Grosset

2018 ICR 1492

, CA.

[642]The Statutory Code sets out the requirements of the justification defence – that the treatment is a proportionate means of achieving a legitimate aim. The material paragraphs are 4.26 to 4.32 and will not be reproduced here. The test is the same as in justifying treatment that would otherwise be unlawful indirect discrimination. A convenient summary the relevant principles is set out in Chief Constable of West Yorkshire & another v Homer

[2012] ICR 708

in the opinion of Lady Hale where she said: “19. The approach to the justification of what would otherwise be indirect discrimination is well settled. A provision, criterion or practice is justified if the employer can show that it is a proportionate means of achieving a legitimate aim. The range of aims which can justify indirect discrimination on any ground is wider than the aims which can, in the case of age discrimination, justify direct discrimination. It is not limited to the social policy or other objectives derived from article 6(1), 4(1) and 2(5) of the Directive, but can encompass a real need on the part of the employer’s business: Bilka-Kaufhaus GmbH v Weber von Hartz, Case 170/84,

[1987] ICR 110

. 20. As Mummery LJ explained in R (Elias) v Secretary of State for Defence

[2006] EWCA Civ 1293

[2006] 1 WLR 3213

, at [151]: “. . . the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group.” He went on, at [165], to commend the three-stage test for determining proportionality derived from de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing

[1999] 1 AC 69

, 80: “First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?” As the Court of Appeal held in Hardy & Hansons plc v Lax

[2005] EWCA Civ 846

[2005] ICR 1565

[31, 32], it is not enough that a reasonable employer might think the criterion justified. The tribunal itself has to weigh the real needs of the undertaking, against the discriminatory effects of the requirement.”

[643]Where the unfavourable treatment arises because the employer has failed to make reasonable adjustments, the employer is unlikely to be able to make out the defence of justification. See paragraphs 5.20 – 5.22 of the Statutory Code and see also Griffiths v Secretary of State for Work and Pensions

2017 ICR 160

, CA. Arising from disability claims – Discussion and conclusions D1 Mrs Miles-Gale asking for volunteers to support the communication in the wards……so C could not do the volunteer work’

[644]This allegation is concerned with a request by Victoria Miles-Gale for members of the Patient Experience team to undertake work on the wards as part of the post discharge communication project. The Claimant has suggested a range of dates where she says she was treated unfavourably by Victoria Miles-Gale between 28 May and 1 June 2021. We understand that the range of dates is included as there was a suggestion by the Claimant that there was more than one refusal to allow her to volunteer of this work. In our findings of fact set out above we have found that there was a single e-mail request by the Claimant followed by a single e-mail response from Victoria Miles-Gale. That response was on 28 May 2021.

[645]The Claimant has suggested that there was a refusal by Victoria Miles-Gale to allow her to volunteer for this work. In our findings of fact we have concluded that that is not accurate. It is true that Victoria Miles-Gale expressed reservations about the Claimant undertaking this work but she did not rule it out. Her suggestion was that the matter was discussed at the next one-to-one meeting. That never took place because the Claimant’s line management was changed. In the light of that the Claimant’s complaint can only be sustained on the basis that Victoria Miles-Gale expressed reservations about her volunteering and did not immediately take her up on her offer.

[646]Mr Jones made the point that the Claimant is simultaneously complaining about the pressure she was under in completing the PEEAG minutes at the same time as complaining that she was not allowed to volunteer for work on the wards. There are several contradictory positions taken by the Claimant in this case. However, we would accept that the Claimant wanted to do the work on the wards whilst simultaneously not wanting to be given a deadline for the PEEAG minutes. The positions are not contradictory. The Claimant wanted to do tasks that she enjoyed rather than those she did not.

[647]As we have set out above in our self-direction, in order to establish unfavourable treatment the threshold is low. We accept that against the background of events and in particular the Claimant’s knowledge that Victoria Miles-Gale had told Alan Wishart that she wanted the secondment to end, the Claimant could see Victoria Miles-Gale expressing reservations about her volunteering as a disadvantage. That will suffice for unfavourable treatment.

[648]The Claimant has identified the ‘something arising’ from disability relevant to this allegation as ‘performance issues and seeing OH’. We accept that some of the performance issues that had concerned Victoria Miles-Gale did arise in consequence of disability. We have explained that more fully elsewhere but it is sufficient to say that we accept that the pace and accuracy of the Claimant’s work were negatively affected by her disabilities in combination. We would further accept that the Claimant’s reasons for seeking a referral to the Respondent’s OH provider included a desire to discuss the health conditions that amounted to disabilities and the effect those had on her. As such we accept that both of these ‘something arising’ are a consequence of disability.

[649]We then turn to the reason for Victoria Miles-Gale’s decision. We find that we need go no further than the reasons given in her e-mail of 28 May 2021. The reasons for not immediately accepting the Claimant’s proposal were that she had just made a referral to OH and that she had just set up a performance management meeting. She said that she wished to support the Claimant and did not want to put her under any further pressure. We find that the first of those two reasons were the something arising(s) that the Claimant has identified. It follows that the Claimant has established that she was treated unfavourably because of something arising as a consequence of disability.

[650]We have dealt with knowledge above. We find that by this date the Respondent was fixed with the knowledge of Alan Wishart he ought to have known that the Claimant was disabled by 5 May 2021 by reason of her menopausal symptoms. We have found that on 6 May 2021 the Claimant indicated to Victoria Miles-Gale that there was a connection between her performance and her menopausal symptoms. The Claimant had had requested an occupational health referral. Taking these matters together we are satisfied that the Respondent ought to have known that the Claimant’s menopausal symptoms amounted to a disability.

[651]The remaining issue is whether the Respondent can show that its treatment of the Claimant was a proportional means of achieving a legitimate aim. The legitimate aim identified by the Respondent is the need to manage the Claimant’s welfare and workload.

[652]We would accept that where, as here, an employee has asked to be referred to occupational health in the context of concerns about their performance at work it is a legitimate aim to ensure that their workload is not such that their health will be further affected.

[653]The approach taken by Victoria Miles-Gale was not to refuse the Claimant’s request but to suggest that the request was discussed. That position is logically connected with the legitimate aim that the Respondent relies upon. It is a means of managing the Claimant’s workload by maintaining the status quo until more information is available.

[654]That leaves the issue of proportionality. The disadvantage to the Claimant was that she would be unable to do tasks that she was interested in completing as a part of her role until the matter was discussed at a further meeting. No doubt she would be disappointed in that. That must be balanced against the potential disadvantages for the Respondent. We find that the following matters are relevant to this balancing exercise: 654.1. Victoria Miles-Gale had just commenced the formal performance management process. She did that because of her concerns about how the Claimant was coping with her existing workload. 654.2. The Claimant had approached Victoria Miles-Gale and asked for an Occupational Health referral. However, she had not given Victoria Miles-Gale much information about why it was necessary. The clear implication was however that the Claimant’s health was impacted by her work.

[655]If Victoria Miles-Gale had simply refused the Claimant’s request and declined to discuss it further we would have taken a great deal of persuasion that the treatment was justified. However, that is not what the Respondent needs to justify here. Here the Respondent, through Victoria Miles-Gale, said that this was something that needed to be discussed before it could be agreed. We have come to the conclusion that the reasonable and legitimate concerns about performance and the lack of detailed knowledge about the Claimant’s wish to see the OH provider provide sufficient justification for taking the stance that Victoria Miles-Gale did in her response. In circumstances where many of the Claimant’s complaints are that she had too much to do asking for information and a discussion before allocating additional work was really the only sensible option. D2 ‘Mrs Miles-Gale asked C to come to the office to amend the meeting knowing that the Claimant had OH on that day’

[656]This allegation concerns the Claimant having an OH appointment. That appointment took place on 3 June 2021. The Claimant had finished her draft of the PEEAG minutes the evening before. She told Victoria Miles-Gale that she wanted to take her OH meeting from home in the early hours of 3 June 2021. Victoria Miles-Gale agreed to her doing so. She did comment that the Claimant ought to have let her know that she wanted to work from home earlier.

[657]We have reproduced the allegation as it is set out in the schedule. It appears that the complaint is that Victoria Miles-Gale had asked the Claimant to come to work after her OH appointment. However at times in her evidence the Claimant has made the suggestion that Victoria Miles-Gale was expecting her to take a confidential call with the OH provider in an open plan office. In fact Victoria Miles-Gale had no objection at all to the Claimant’s proposal to take the call at home and the Claimant has conjured an instruction to take the call in an open plan office from her imagination.

[658]There was no instruction to attend the office to take the call from OH and so the claim cannot succeed on that basis. What appears to remain is the expectation that the Claimant would come in to work after the OH appointment. The difficulty for the Claimant in complaining about that is that that was her suggestion made to Victoria Miles-Gale in her e-mail in the early hours of 3 June 2021.

[659]We find that the Claimant has failed to establish that there was any unfavourable treatment. She was not required to take an OH call in the office and she volunteered to come to the office after that call. We suspect that the Claimant’s real complaint is that Victoria Miles-Gale complained of the late notice. As that is not the Claimant’s case we shall deal with it only to the extent of saying that there is clearly a legitimate aim of Victoria MilesGale knowing in advance who is and who is not working from home. Asking for more notice is a proportionate means of achieving that. D3 ‘Mrs Miles-Gale complaining that the Claimant was not doing her job quickly enough (or properly)’

[660]The Claimant says that this occurred on 3 June 2021. We refer to our findings of fact set out above. We are not satisfied that there was any such conversation. We are sure that when the Claimant saw Victoria Miles-Gale’s amendments to her minutes she concluded that Victoria Miles-Gale had concerns both about the speed of her work and her level of performance. However, that was not articulated by Victoria Miles-Gale on that day. It follows that this claim fails on its facts. D4 ‘Mr Wishart told the Claimant, Mrs Halford would give her six months money to leave the organisation’

[661]The manner in which this case has been put in the Claimant’s ET1 and the schedule is not aligned with the way in which the evidence emerged. The Claimant is correct to say that Kathryn Halford suggested to Alan Wishart that an improved offer (actually 10 months’ pay) be made to the Claimant on 13 May 2021. However, the Claimant’s complaint in her evidence and during the grievance process was focussed on the decision of Alan Wishart to open up any discussion of her leaving the Respondent and entering into a settlement agreement. We consider that we should deal with the Claimant’s case at its broadest her as the complaint is at the very core of her case. The outcome means that there has been no prejudice caused to the Respondent by us taking that course.

[662]We accept that Alan Wishart communicating to the Claimant that Victoria Miles-Gales concerns about her performance had led her to believe that the secondment should be ended together with his suggestion that the Claimant considers entering into a settlement agreement were very unwelcome to the Claimant initially on 5 May 2021, again on 7 May 2021 and finally on 13 May 2021 when the increased offer was communicated. The Claimant did not want to leave the Respondent and did not welcome the discussion. The fact that she engaged with the negotiations makes no difference. We have no difficulty in accepting the Claimant’s case that this amounted to unfavourable treatment.

[663]The Claimant identifies the ‘something arising’ as being the performance concerns that had led Victoria Miles-Gale to form her view that the secondment should be ended. We have found that some, but not all, of the performance concerns of Victoria Miles-Gale were matters that were a consequence of the Claimant’s inability to focus on her work because of the effects of her disabilities.

[664]Whilst there are two steps involved we are satisfied that the decision by Alan Wishart to broach the possibility of a settlement agreement with the Claimant did arise because of the ‘something arising’ identified by the Claimant. The first step is that it was those performance concerns that led Victoria Miles-Gale to her conclusion that the secondment was not working out. The Second step was that Alan Wishart though that broaching the possibility of a settlement agreement was the best way of dealing with that situation.

[665]We have found that during the meeting of 5 May 2021 the Claimant put the Respondent on actual or constructive notice that her menopausal symptoms amounted to a disability.

[666]It follows that the Claimant has established that she was subjected to unfavourable treatment because of something arising in consequence of her disabilities. We then need to turn to the question of whether the actions of Alan Wishart were a proportionate means of achieving a legitimate aim.

[667]We have dealt with the same facts as claims of harassment in allegations B2, B3 and B4. We accept that the legal test in a claim under Section 15 is very different to a claim under Section 26. However the reasons we have given for concluding that the Claimant could not reasonably have regarded the treatment as amounting to harassment are provide some assistance to us when deciding whether the Respondent’s actions were a proportionate means of achieving a legitimate aim. We have had them in mind.

[668]Mr Jones set out his submissions on this point in his annotated schedule. The way he put the legitimate aim was consistent with the way the evidence had come out in the tribunal. The uncertainties about how the Claimant’s case made it very difficult for the Respondent to be more precise at any earlier stage. Mr Jones said that the legitimate aim was dealing with the concerns that had arisen in a pragmatic way. We feel it necessary to unpack that a little. There could be no sensible dispute that it was a legitimate aim for the Respondent to ensure that the Claimant was performing her role to an acceptable standard. Once that is accepted we consider that the introduction of the possibility of a settlement is simply one means of achieving that aim. It is not the aim itself. The question is whether in the circumstances of this case using those means was proportionate.

[669]Any assessment of the proportionality must take into account all the surrounding circumstances. Mr Jones expressed his concerns (with all appropriate courtesy) at the tribunal asking questions about the extent of past failures to address performance management concerns formally. It seems to us that those questions are relevant to the issue of proportionality. We would accept that Mr Wishart was not able to turn the clock back. The proportionality of his approach to the situation as it was in May 2021 must be assessed on the basis of the options available to him at the time in order to address the legitimate aim we have identified. As we have identified above in the Section 26 claims the extent to which those concerns were a bolt from the blue for the Claimant is in our view a material consideration. Furthermore the fact that there had been no previous formal processes, despite there being concerns, is a matter that needs to be weighed in the balance when looking at whether raising the option of a settlement agreement was proportionate as opposed, for example, to commencing the formal process first. We consider that our approach is endorsed by the ACAS Guidance to Settlement Agreements 2018. We accept that that guidance is not a part of the statutory code of practice but it is none the less instructive. The material parts say: Employers will, however, want to think carefully about when and how to offer a settlement agreement. Not all disputes or problems in the workplace lend themselves to resolution through a settlement agreement and employers should be careful not to rely on them as an alternative to good management. Settlement agreements are one ‘tool’ to use in appropriate situations, but problems with employees are usually best resolved by talking with the employee and working with them constructively to resolve the issue that is causing the difficulty. In particular, where there has been no previous mention of a problem, such as a disciplinary issue or a grievance, employers will want to consider whether an offer of settlement could appear ‘out of the blue’, and therefore how it might affect an individual’s reaction to the offer and the ongoing relationship if an agreement is not reached.

[670]In weighing up the extent to which Alan Wishart’s approach was a ‘bolt from the blue’ or in the findings of Janet King, might have appeared callous, we repeat what we have said above in respect of the extent that the Claimant know or ought to have known that her performance was an issue. It is the Claimant’s case that she had been in tears on a number of occasions when Victoria Miles-Gale had indicated that there were performance shortfalls. We repeat our findings as to the meetings that took place on 15 and 22 April 2021. The Claimant knew full well that Kathryn Halford had concerns about her abilities. We do not accept that the issue of performance concerns was a ‘bolt from the blue’. We accept that the Claimant might have perceived Alan Wishart to be callous when he raised this with her. We do not accept that he was being callous or that the Claimant’s perception was reasonable.

[671]We find that Mr Jones made a better point when he invited us to look at the disadvantage to the Claimant of Alan Wishart’s approach. He suggested that this was minimal because it was recognised by all that the Claimant could not be obliged to follow this course. We accept this point to some extent. We find that the Claimant ought to, and in fact did, understand that the settlement proposal was an alternative to some performance management process or change of role. In other words if no agreement was reached it was not automatically the case that she would be dismissed. That said, the fact that Alan Wishart raised the possibility of a settlement agreement at all conveyed to the Claimant that there was a very real possibility that she would be dismissed.

[672]We need to deal with Alan Wishart’s suggestion that a settlement agreement is something that in his experience is welcomed. He said that he was concerned for the Claimant’s dignity and wanted to save her from the inevitable stress of performance management. This was an issue where having a full tribunal was of particular assistance. The experience of the non-legal members echoed the experience of Alan Wishart. The tribunal accept that where there has been a history of performance issues any proposal of a settlement can come as much a relief to the employee as it can be for the management. We would accept that the preservation of dignity is a real and important consideration. Indeed that appears to be recognised by the introduction of Section 111A of the Employment Rights Act 1996.

[673]Any assessment of proportionality requires a balance between the advantages and disadvantages of any course of action. We have stood back and looked at the means employed by Alan Wishart to address what were legitimate performance concerns. We find that raising the possibility of a settlement agreement as an alternative to taking any other course including a performance management process was a proportionate means of achieving the legitimate aim that we have identified.

[674]In reaching this conclusion we need to consider whether any less discriminatory measure would suffice. It seems to us that the choices were stark. Doing nothing really was not an option. The performance and behavioural concerns of Victoria Miles-Gale were objectively reasonable. Things could not have gone on in the same vein. The Claimant’s response to the Christine Mathews giving her the ‘wrong information’ was something that needed to be addressed. Attempts had been made on 15 April 2021 and had been met with a doubling down by the Claimant. The Claimant’s comments about the team talking about Victoria Miles-Gale behind her back could not simply be ignored. Something needed to be done to address the Claimant’s performance. Performance management or a further change of role were in our view likely to be no less discriminatory than providing the Claimant with the option of a settlement agreement.

[675]We are satisfied that whilst the unfavourable treatment of the claimant was, in part, because of something arising in consequence of her disabilities the Respondent has shown that the offer of a settlement agreement was a proportionate means of addressing real performance and relationship issues and was justified. The claims that there were failures to make reasonable adjustments – Schedule Section E

[676]The Claimant has advanced three claims where she says that the Respondent failed to make reasonable adjustments for her disabilities.

[677]There is some tension in aspects of the Claimant’s case that we have alluded to above. The Claimant suggests in these claims that she was given insufficient time to complete some tasks. However, she has also complained that tasks she did were taken away and given to others. She has complained that she was discouraged from taking on additional tasks. She has suggested that any concerns about her performance were completely unjustified. She has also said that she should have been given additional training to assist her with her performance issues. Our approach has been to put these tensions aside and to apply the relevant legal principles to our findings of fact. We shall address each of the claims in turn. Failing to make reasonable adjustments Sections 20 & 21 of the Equality Act 2010 – the law we applied

[678]When dealing with a claim that there has been a failure to make reasonable adjustments the Tribunal are obliged to have regard to the relevant code of practice. For claims brought in the employment sphere the relevant code is the Equality and Human Rights Commission Code of Practice on Employment 2011. Paragraph 6.2 of that code describes the duty to make reasonable adjustments as follows: The duty to make reasonable adjustments is a cornerstone of the Act and requires employers to take positive steps to ensure that disabled people can access and progress in employment. This goes beyond simply avoiding treating disabled workers, job applicants and potential job applicants unfavourably and means taking additional steps to which non-disabled workers and applicants are not entitled.

[679]The reference in that paragraph to the right to have ‘additional steps’ taken reflects the guidance given by Lady Hale in Archibald v Fife Council

[2004] UKHL 32

which whilst referring to the Disability Discrimination Act 1995 is equally applicable to the Equality Act 2010. ……this legislation is different from the Sex Discrimination Act 1975 and the Race Relations Act 1976. In the latter two, men and women or black and white, as the case may be, are opposite sides of the same coin. Each is to be treated in the same way. Treating men more favourably than women discriminates against women. Treating women more favourably than men discriminates against men. Pregnancy apart, the differences between the genders are generally regarded as irrelevant. The 1995 Act, however, does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the special needs of disabled people. It necessarily entails an element of more favourable treatment.

[680]The material parts of Section 20 of the Equality Act read as follows: Duty to make adjustments(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 comprises 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. (4)….. (5)….

[681]The phrase ‘substantial’ used in sub-section 20(3) is defined in section 212(1) of the EA 2010 and means only ‘more than minor or trivial’.

[682]Sub-section 39(5) of the Equality Act 2010 extends the duty to make reasonable adjustments to an employer of employees and job applicants.

[683]The proper approach to a reasonable adjustments claim remains that suggested in Environment Agency v Rowan

[2008] IRLR 20

. A tribunal should have regard to: 683.1. the provision, criterion or practice applied by or on behalf of the employer; or 683.2. the physical feature of premises occupied by the employer; 683.3. the identity of non-disabled comparators (where appropriate); and 683.4. the nature and extent of the substantial disadvantage suffered by the claimant.

[684]The requirement to demonstrate a 'practice' does not mean that a single instance or event cannot qualify but that to do so there must be an 'element of repetition' see Nottingham City Transport v Harvey UKEAT/0032/12JOJ. This might be demonstrated by showing that the treatment would be repeated if the same circumstances ever arose again.

[685]The code gives guidance about what is meant by reasonable steps at paragraph 6.23 to paragraph 6.29. Those paragraphs read as follows: 6.23 The duty to make adjustments requires employers to take such steps as it is reasonable to have to take, in all the circumstances of the case, in order to make adjustments. The Act does not specify any particular factors that should be taken into account. What is a reasonable step for an employer to take will depend on all the circumstances of each individual 6.24 There is no onus on the disabled worker to suggest what adjustments should be made (although it is good practice for employers to ask). However, where the disabled person does so, the employer should consider whether such adjustments would help overcome the substantial disadvantage, and whether they are reasonable. 6.25 Effective and practicable adjustments for disabled workers often involve little or no cost or disruption and are therefore very likely to be reasonable for an employer to have to make. Even if an adjustment has a significant cost associated with it, it may still be cost-effective in overall terms – for example, compared with the costs of recruiting and training a new member of staff – and so may still be a reasonable adjustment to have to make. 6.26 [deals with physical alterations of premises]. 6.27 If making a particular adjustment would increase the risk to health and safety of any person (including the disabled worker in question) then this is a relevant factor in deciding whether it is reasonable to make that adjustment. Suitable and sufficient risk assessments should be used to help determine whether such risk is likely to arise. Duty to make reasonable adjustments. 6.28 The following are some of the factors which might be taken into account when deciding what is a reasonable step for an employer to have to take:• whether taking any particular steps would be effective in preventing the substantial disadvantage;

• the practicability of the step;

• the financial and other costs of making the adjustment and the extent of any disruption caused;

• the extent of the employer’s financial or other resources;

• the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and

• the type and size of the employer. 6.29 Ultimately the test of the ‘reasonableness’ of any step an employer may have to take is an objective one and will depend on the circumstances of the case.

[686]Whilst the code places emphasis on the desirability of an employer investigating what adjustments might be necessary for a disabled employee, a failure to carry out such investigations will not, in itself, amount to a failure to make reasonable adjustments although that might be the consequence Tarbuck v Sainsbury’s Supermarkets Ltd

2006 IRLR 664

, EAT. Reasonable adjustment claims – Discussions and conclusions.

[687]We have said elsewhere that we have accepted that the Claimant’s ability to focus on tasks and her attention to detail was adversely affected by her menopausal symptoms. We need only add a little detail here. The Claimant has set out a history, which we accept, of difficulty sleeping through night sweats. Dr Anderson has referred to the Claimant’s already heightened emotional response to feedback being heightened because of the hormonal changes she was experiencing. The Claimant has told us, and we accept, that she used a fan to cool herself when experiencing hot flushes at work. It is clear to us that the Claimant’s work was impacted to some extent by her disabilities. Our approach has ben to consider the effect of both disabilities that we have accepted the Claimant had taken together rather than as separate disabilities. We have focused on the composite effect of both. E1 The PCP is described as: ‘The requirement to work on three to four projects at the same time’

[688]The first dispute that we need to resolve is whether such a PCP was applied generally and if it was whether it was applied to the Claimant. Here we are greatly assisted by the early records of the one-to-one meetings prepared by Victoria Miles-Gale and agreed by the Claimant.

[689]Victoria Miles-Gale says, and we accept, that there is no policy or practice of allocating a specific number or projects to any team member. We find that project work was allocated on the basis of capacity and aptitude rather than the number of projects. Rather than deal with this claim by suggesting that the Claimant has not proven that the PCP she alleges was applied to the team we shall deal with the actual practice that was applied to the Claimant. In doing so we do not consider that there is any injustice to the Respondent. The Respondent has ample opportunity to comment upon the actual practice applied and did so.

[690]From our findings of fact set out above we draw the conclusion that the Claimant’s workload and her ability to cope with it was kept under constant review by Victoria Miles-Gale. The records of the one-to-one meetings and the wellbeing meeting of 17 March 2021 show that the Claimant had very opportunity to raise any concerns about her workload but at that stage never did.

[691]On 15 April 2021 during the one-to-one meeting that took place on that day there was a discussion about the time that the Claimant had taken to complete a project to provide people with additional needs with lanyards. The records of that meeting say, and we accept, that the original deadline for completing this task had expired. Victoria Miles-Gale simply instructed the Claimant to let her know when it was possible for this task to be completed.

[692]The Claimant did suggest that she had too much work on her hands when she was asked to complete the PEEAG minutes by 2 June 2021. We note that when that deadline was set Victoria Miles-Gale asked the Claimant to let her know whether it was realistic. When the Claimant said that the post discharge calls were a barrier to completing the task on time she was relieved of those duties.

[693]The premise of this complaint is that because of the symptoms of her disabilities the Claimant struggled with the volume of work she was given. We have accepted elsewhere that the Claimant’s disabilities had an impact on her ability to focus on her work. We would accept that the longer the Claimant had to do a task the easier it would be for her. We accept that the Claimant found the amount of work she was expected to do difficult. That would be true of more people who shared the Claimant’s disabilities than those who did not.

[694]It follows from our conclusions above the remaining issues are whether the Respondent had actual or constructive knowledge of the disadvantage caused by the Claimant’s workload and, if it did, whether any adjustment would have been reasonable.

[695]We find that at no time other than when given a deadline to complete the PEEAG Minutes on 2 June 2021 did the Claimant ever suggest that she was struggling with the volume of work that she had been allocated. The Claimant had every opportunity to raise any concerns she had about the amount of work she was given. The only time that the Claimant raised an issue her workload was reduced.

[696]We find that Victoria Miles-Gale did not actually know that the Claimant found the amount of work she was allocated placed the Claimant at a substantial disadvantage. We would accept that Victoria Miles-Gale knew that that the Claimant struggled to provide work of an adequate quality. Victoria Miles-Gale also knew in general terms that the Claimant was going through the menopause. She knew that there were circumstances when the Claimant would become anxious. She recognised that the Claimant was not performing to the standard she accepted. That leaves the question of whether armed with that level of knowledge Victoria Miles-Gale ought to have recognised that the volume of work the Claimant was given would have placed her at a substantial disadvantage. When answering this we have regard to the fact that when she had her first occupational health assessment the Claimant’s own view was that her menopausal symptoms were not affecting her performance at work. We find that had Victoria MilesGale asked her the same question she would have responded in the same way. Whilst there are circumstances where, whatever the employee says, an employer ought to recognise that a PCP creates a substantial disadvantage for a disabled employee whether that is the case will depend on the circumstances.

[697]We find that the Respondent has shown that it did not know and could not reasonably be expected to know that the Claimant was placed at a substantial disadvantage by the volume of work she was given. That means that there was no duty to make any adjustments to the volume of work.

[698]Had we come to a different conclusion on knowledge we find that the claim would fail in any event. We shall deal with each of the adjustments the Claimant says were reasonable in turn.

[699]The Claimant says that she should have been given training in how to do spreadsheets and minutes. We had no evidence that the Claimant lacked any skills in completing spreadsheets. She used a spreadsheet when she worked on the post discharge project. We do not consider that there was any problem here that needed to be addressed. In assessing whether an adjustment is necessary we need to consider whether it would alleviate at least to some extent the disadvantage. We find that in respect of using a spreadsheet there was nothing the Claimant did not know how to do. We find that training would have made no difference at all. It follows that it would not have been reasonable to have provided training.

[700]We accept that the Claimant lacked skills when it came to preparing professional and accurate minutes. However, certainly at the time the Claimant disagreed. It was her case that any criticisms of her minutes were unjustified. The efficacy of any training would have been (and in fact was) substantially reduced because the Claimant did not believe that there was a problem. The Claimant was trained on how to do the agenda and minutes for meetings. That training was not external but was given by Victoria MilesGale. Victoria Miles-Gale read all the documents the Claimant had prepared; she proposed amendments and explained the reasons for them. This went on over a period of months. We accept the evidence that was given by Victoria Miles-Gale that the issues she had with the Claimant’s minute taking arose during the Covid pandemic when external courses were unavailable. In the circumstances we consider that all the training that could reasonably have been provided to the Claimant in relation to minutes was provided. It made little difference to the Claimant’s ability to cope with her work.

[701]The Claimant suggests that she should have been given more notice of being allocated projects. We find that the Claimant was given a workload which was carefully and constantly monitored. She raised no complaints about her workload. She had every opportunity to say if she was under pressure. She did not and we do not accept that the timing of any allocation of a project had any impact upon her. The adjustment proposed would have made no difference. The Claimant was struggling to focus on her work. The allocation of work made no difference to this. However, whenever the Claimant asked for additional time or less work it was accommodated. There was simply no need for an additional adjustment of additional time before work was allocated.

[702]The final adjustment proposed is that the Claimant is given less tasks. Our findings are that the Victoria Miles-Gale carefully monitored the Claimant’s level of work. We find that she put the Claimant under no pressure of time generally and where she set deadlines she did so having ensured that the Claimant had the time to comply. The Claimant never suggested that she should be given less work and we find that at the time she recognised that she was capable of dealing with the volume of work. The Claimant’s disabilities had an affect on how hard the Claimant found the tasks. However, had she been given less work she would still have hard to focus upon it. The Claimant has strongly objected to what she saw as her work being removed from her. This is one of the tensions in her claims.

[703]We find that the arbitrary allocation of less projects would have not been a reasonable approach to the fact that the Claimant struggled with some tasks. The approach of Victoria Miles-Gale, which was to allocate work and monitor the Claimant’s ability to complete it was the only adjustment that it was reasonably necessary to make. We find that she was extremely flexible. Nothing more would have been reasonable. E2 ‘All members of staff were expected to do the meeting agenda for a PEEAG meeting, the minutes of the meeting and the reports arising…’

[704]This allegation, brought as a claim that there was a failure to make a reasonable adjustments focuses on one of the Claimant’s principle grievances, her suggestion that she was given the ‘wrong’ information by Christine Mathews. The adjustment she contends for is that she was given extra time and was given the ‘correct written information’.

[705]It is not the case that ‘all members of staff’ were required to do the PEEAG agenda and minutes. The task was allocated depending on capacity. From April it was allocated to the Claimant. We accept that the allocation of these tasks is capable of amounting to a PCP because the task was always going to be allocated to somebody.

[706]We turn to the question of whether the allocation of these tasks to the Claimant placed her at a substantial disadvantage. The Claimant suggests in the schedule that she was ‘unable to capture or remember everything said at meetings’ . Whilst we would accept that the Claimant’s ability to focus was affected by her disabilities and that that would impact on her memory we do not accept that the Claimant actually suffered from this disadvantage. It was her practice to record the meeting. There was only one PEEAG Meeting and the Claimant recorded it.

[707]We would accept that the Claimant’s difficulties with focus and concentration would have made it harder to do her work generally. In this case digest the recording of the meeting into minutes of a good professional standard. We do not say that the disabilities were the sole cause of this. Many of the errors in the minutes cannot be explained by this mechanism but we accept that some can. As she puts it in the schedule ‘she was unable to process large volumes of information and to think quickly’.

[708]After 6 May 2021, when the Claimant told Victoria Miles-Gale that she had been suffering from symptoms of the menopause, we find that Victoria Miles-Gale had constructive knowledge of both the fact that the Claimant had the disabilities she has proven in this case and that she was struggling to do her work because of those disabilities.

[709]The first adjustment that the Claimant has identified was training. We have dealt with the question of training above when addressing E1. The same considerations apply here. We find that the Claimant was given all training that could reasonably have been given by Victoria Miles-Gale.

[710]The Claimant then says that she should have been given more time to complete these two tasks. We find that the Claimant was placed under no time constraints to complete the PEEAG agenda. She was given two days to complete the PEEAG minutes and was relieved of other duties to accommodate this. This was, by any standards, a very generous amount of time to give the Claimant for this task. The question for us is whether it would have been reasonable to give longer. We rely on our findings above. Victoria Miles-Gale knew that she would have to check the PEEAG minutes. In fact they needed extensive corrections. They needed to be circulated within a reasonable time. We find that in the circumstances the Claimant was given as long as reasonably possible to complete the minutes. No further adjustment would have been reasonable.

[711]The final adjustment contended for reflects the Claimant’s real concern. She says that she should have ben given the ‘correct information’ by Christine Mathews. We note that she also says that when she prepared the PEEAG minutes no corrections were made to those parts Christine Mathews had assisted with. It appears that the main thrust of this complaint concerns the Agenda. We find that Christine Mathews was suggested as a person who might assist the Claimant because she was the only available person who had done the PEEAG agenda recently. As we have said above she had not done so for some time and COVID had resulted in changes which she was unaware of.

[712]Against that background we ask how the Respondent was expected to provide the ‘correct information’. Victoria Miles-Gale was able to do that when she corrected the draft minutes. We repeat that she reassured the Claimant that she was unconcerned by the mistakes she had identified.

[713]We do not think that in these circumstances the Respondent could reasonably have been expected to ensure that where the Claimant was directed to a colleague to assist her the information that she was given had to be ‘correct’. We find that the Respondent did everything reasonably possible to alleviate any disadvantage to the Claimant. What Victoria MilesGale could never have anticipated was the Claimant’s extreme and disproportionate reaction to Christine Mathews not being able to assist her to produce an agenda that required no amendments. E3 ‘Requiring everybody in the patient experience team to do the same amount of non-project work….’

[714]There is an almost complete overlap between this allegation and E1. The only material difference is that E1 was limited to project work and this allegation concerns non-project work. When we dealt with E1 we did so on the basis of treating the PCP as being the work that the Claimant was required to do without distinguishing between project work and non-project work. The adjustment contended for is that the Claimant was given less work. We have set out above that the Claimant workload was constantly monitored and adjusted when she raised any issue. For the reasons we set out above we do not consider any further adjustment would have been reasonable. A discriminatory constructive dismissal

[715]Section 39 of the Equality Act 2010 sets out the circumstances where discrimination in the field of employment will be unlawful. The material parts provide (with emphasis added): 39 Employees and applicants (1)…. (2) An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;

(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(d) by subjecting B to any other detriment. (3) ….. (6) (7) In subsections (2)(c) and (4)(c), the reference to dismissing B includes a reference to the termination of B's employment— (a) …. (b) by an act of B's (including giving notice) in circumstances such that B is entitled, because of A's conduct, to terminate the employment without notice. (8) ….

[716]In Williams v Governing Body of Alderman Davies Church in Wales Primary School

[2020] IRLR 589

, the EAT held, at [89], that a constructive dismissal can itself be discriminatory if discriminatory conduct materially influenced the conduct that amounted to repudiatory breach.

[717]In De Lacey v Wechseln Ltd t/a The Andrew Hill Salon

[2021] IRLR 547

the EAT held that a constructive dismissal can be discriminatory even if the last straw was not itself discriminatory and even if the matters which significantly influenced the resignation such as to make the dismissal discriminatory were themselves outside the primary time limit. Discriminatory constructive dismissal – discussion and conclusions.

[718]As can be seen from our self-direction above, to succeed in a claim brought through Section 39(7)(b) of the Equality Act 2010 there must be a dismissal. We shall not address that question here because it is unnecessary for us to do so in the light of our findings above.

[719]For there to be a discriminatory constructive dismissal at least one act that forms part of the conduct said to convert a resignation into a dismissal must be discrimination, harassment or victimisation. We have gone through each of the Claimant’s allegations. We have found none to be acts which are unlawful under the Equality Act 2010. It follows from this that even if there was a dismissal it cannot be discriminatory and fall within Section 39(7)(b). Unfair Dismissal Contrary To Section 94 Of The Employment Rights Act 1996

[720]We turn then to the unfair dismissal claim. Below we set out the legal principles we applied. In the first section we deal with the law as it applies when there is said to be a constructive dismissal. We then go on to set out the law in relation to ‘protected conversations’. We start our discussion and conclusion with that latter issue as it is necessary for us to decide whether the Claimant is entitled to rely on evidence of any protected conversations she had with Alan Wishart. Unfair dismissal – general principles.

[721]Section 94 of the Employment Rights Act 1996 (hereafter ‘the ERA 1996’) sets out the right of an employee not to be unfairly dismissed by her employer.

[722]For the Claimant to be able to establish her claim of unfair dismissal she must show that she has been dismissed. Dismissal for these purposes is defined in Section 95 ERA 1006 and includes in Sub-section 95(1)(c) ‘the employee terminates the contract under which she is employed (with or without notice) in circumstances in which she is entitled to terminate it without notice by reason of the employer’s conduct’.

[723]Western Excavating (ECC) Ltd and Sharpe

1978 IRLR 27

established that in order for the circumstances to entitle the employee to terminate the contract without notice, there must be a breach of contract by the employer, secondly that that breach must be sufficiently important to justify the employee resigning; the employee must leave in response to the breach not some unconnected reason; and that the employee must not delay such as to affirm the contract. The breach relied upon can be a breach of an express or implied term.

[724]In Mahmood v BCCI

1997 ICR 607

it was confirmed that 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. It is implicit in the case of Mahmood v BCCI that any breach of the implied term will be sufficiently important to entitle the employee to treat himself as dismissed and the reason for that it is necessary do serious damage to the employment relationship. That position was expressly confirmed in Morrow v Safeway Stores Ltd

2002 IRLR 9

[725]Where the breach alleged arises from a number of incidents culminating in a final event, the tribunal may, indeed must, look at the entire conduct of the employer and the final act relied on need not itself be repudiatory or it even unreasonable, but must contribute something even if relatively insignificant to the breach of contract see Lewis and Motor World Garages Ltd

1985 IRLR 465

and Omilaju v Waltham Forest London Borough Council

2005 IRLR 35

. In Omilaju it was said: ‘19. … The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase 'an act in a series' in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.20. I see no need to characterise the final straw as 'unreasonable' or 'blameworthy' conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.

21. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.’

[726]The test to be applied in assessing the gravity of any conduct is an objective one and neither depends upon the subjective reaction of the particular employee nor the opinion of the employer as to whether its conduct is reasonable or not see Omilaju v Waltham Forest London Borough Council and Bournemouth University Higher Education Corpn v Buckland

[2011] QB 323

[727]There is no general implied contractual term that an employer will not breach some other statutory right such as the right not to suffer discrimination Doherty v British Midland Airways

[2006] IRLR 90

, EAT. However, the same facts that might support a finding of unlawful discrimination or any disregard of such a statutory right may, depending on the facts, suffice to establish a breach of the implied term of mutual trust and confidence see Green v Barnsley MBC

[2006] IRLR 98

and Amnesty International v Ahmed

[728]Once there is a breach of contract that breach cannot be cured by subsequent conduct by the employer but an employee who delays after a breach of contract may, depending on the facts, affirm the contract and lose the right to treat him/herself as dismissed - Bournemouth University Higher Education Corpn v Buckland.

[729]In Ms Sandra Brooks Appellant v Brooks v Leisure Employment Services Ltd

[2023] EAT 137

the EAT held that the use of a contractual grievance procedure would not normally be taken as evidence that the employee had unequivocally decided to affirm the contract.

[730]The issue of affirmation is to be assessed looking at the conduct of the employee and is not determined merely by the passage of time. Affirmation need not be expressly communicated but might be implied Leaney v Loughborough University

2023 EAT 155

. The EAT set out the following general principles:19. For our purposes the relevant general principles may be summarised as follows. The starting point is that, where one party is in fundamental breach of contract, the injured party may elect to accept the breach as bringing the contract to an end, or to treat the contract as continuing, requiring the party in breach to continue to perform it – that is affirmation. Where the injured party affirms, they will thereby have lost the right thereafter to treat the other party's conduct as having brought the contract to an end (unless or until there is thereafter further relevant conduct on the part of the offending party, a point discussed in Kaur v Leeds Teaching Hospital NHS Trust

[2018] EWCA Civ 978

;

[2019] ICR 1

20. The innocent party may indicate by some express communication that they have decided to affirm, but affirmation may also be implied (that is, inferred) from conduct. Mere delay in communicating a decision to accept the breach as bringing the contract to an end will not, in the absence of something amounting to express or implied affirmation, amount in itself to affirmation. But the ongoing and dynamic nature of the employment relationship means that a prolonged or significant delay may give rise to an implied affirmation, because of what occurred during that period.

21. In particular, acts of the innocent party which are consistent only with the contract continuing are liable to be treated as evidence of implied affirmation. Where the injured party is the employee, the proactive carrying out of duties falling on him and/or the acceptance of significant performance by the employer by way of payment of wages, will place him at potential risk of being treated as having affirmed. However, if the injured party communicates that he is considering and, in some sense, reserving, his position, or makes attempts to seek to allow the other party some opportunity to put right the breach, before deciding what to do, then if, in the meantime, he continues to give some performance or to draw pay, he may not necessarily be taken to have thereby affirmed the breach.

22. In Buckland Jacob LJ recognised the difficult choice which the employee may often face in the following passage: "54. Next, a word about affirmation in the context of employment contracts. When an employer commits a repudiatory breach there is naturally enormous pressure put on the employee. If he or she just ups and goes they have no job and the uncomfortable prospect of having to claim damages and unfair dismissal. If he or she stays there is a risk that they will be taken to have affirmed. Ideally a wronged employee who stays on for a bit whilst he or she considered their position would say so expressly. But even that would be difficult and it is not realistic to suppose it will happen very often. For that reason the law looks carefully at the facts before deciding whether there has really been an affirmation."

[731]The breach of contract need not be the only reason for the resignation providing the reason for the resignation is at least in part because of the breach Nottinghamshire County Council and Meikle

[2004] IRLR 703

.The employee need not spell out or otherwise communicate her reason for resigning to the employer and it is a matter of evidence and fact for the tribunal to find what those reasons were Weatherfield v Sargent

1999 IRLR 94

[732]The proper approach, in the main distilled from the cases set out above has been set out by the Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

per Underhill LJ at paragraph 55. ‘it is sufficient for a tribunal to ask itself the following questions:(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) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) 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?

[733]If dismissal is established sub-section 98(1) ERA 1996 requires the employer to demonstrate that the reason, or if more than one the principal reason, for the dismissal was for one of the potentially fair reasons listed in sub-section 98(2) of the ERA 1996 or for ‘some other substantial reason’. If it cannot do so then the dismissal will be unfair.

[734]If the employer is able to establish that the reason for the dismissal was for a potentially fair reason, then the employment tribunal must go on to consider whether the dismissal was actually fair applying the test set out in section 98(4) of the ERA 1996 which reads: '(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.'

[735]Section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that: ‘any Code of Practice issued under this Chapter by ACAS shall be admissible in evidence, and any provision of the Code which appears to the tribunal or Committee to be relevant to any question arising in the proceedings shall be taken into account in determining that question.’

[736]The relevant code for present purposes is the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015. Section 111A of the Employment Rights Act 1996

[737]Section 111A or the Employment Rights Act says:(1) Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111. This is subject to subsections (3) to (5).

(2) In subsection (1) 'pre-termination negotiations' means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.

(3) Subsection (1) does not apply where, according to the complainant's case, the circumstances are such that a provision (whenever made) contained in, or made under, this or any other Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed.

(4) In relation to anything said or done which in the tribunal's opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.

(5) Subsection (1) does not affect the admissibility, on any question as to costs or expenses, of evidence relating to an offer made on the basis that the right to refer to it on any such question is reserved.

[738]ACAS have issued a statutory code of practice under Section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992. That Code of Practice is entitled, Settlement Agreements (under Section 111A of the Employment Rights Act 1996). Section 207 of the 1992 act requires the tribunal to take the provisions of that code into account.

[739]In Fairthorn Farrell Timms plc v Bailey

[2016] ICR 1054

, Judge Eady gave the following guidance on the legislation and the Code of Practice: 739.1. Section 111A is not simply a rehash of without prejudice law; it has to be applied on its own terms. 739.2. Unlike without prejudice, its operation cannot be waived by the parties, even by mutual agreement; this is the case both under its own wording and (interestingly) under the ERA s 203 which bars contracting out of the Act. 739.3. Section 111A only applies to a subsequent unfair dismissal claim, However, if another claim is brought in addition (e.g. for discrimination) that does not mean that the section no longer applies at all; instead, the tribunal must still exclude the evidence in the unfair dismissal action, even if it is admissible in the other action. 739.4. The section applies to render inadmissible not just the content of the negotiations, but also their very existence. This is shown by subs (2) which defines 'pre-termination negotiations' as 'any offer made or discussions held …'. 739.5. Similarly, it applies not just to evidence of discussions between employer and employee but also to discussions within the employer, e.g. between line manager and HR adviser; this is important in larger organisations and is again justified on the wording of the section. 739.6. In relation to the potentially important exception in sub-s (4) (improper remarks or behaviour) on which the Code gives guidance, the correct interpretation is that this is not the same as the 'unambiguous impropriety' exception to the without prejudice principle. Reference to para 17 of the Code shows that it was Parliament's intent to give more flexibility and a wider discretion to tribunals than under common law. If this question arises, the tribunal should apply a two-stage test: 739.7. was there improper behaviour by either party during the settlement negotiations (in the light of the Code guidance in para 18)? 739.8. if so, to what extent should confidentiality be preserved in respect of those negotiations?

[740]Under both these provisions and the common law on 'without prejudice' communications, a party cannot insist on confidentiality for part of the discussions, while wishing to adduce evidence of another part: Graham v Agilitas IT Solutions Ltd

UKEAT/0212/17

(12 October 2017, unreported). Section 111A - Discussion and conclusions

[741]The parties had initially overlooked Section 111A and the effect that this provision might have on the evidence we were entitled to consider when asking whether there was a dismissal. However, it was common ground that, as Section 111A had no impact on the Equality Act claims, we should consider all the evidence before making any decision as to whether we should disregard any protected conversation for the purposes of the unfair dismissal claim.

[742]We do not think it can be disputed that when Alan Wishart introduced the possibility of the Claimant leaving the Respondent’s employment under the terms of a settlement agreement those discussions amounted to pretermination negotiations for the purposes of sub-section 111A(2). We have considered whether the conversation that led up to the possibility of an exit package falls was itself part of the pre-termination negotiations. The early parts of the conversation included Alan Wishart informing the Claimant that Victoria Miles-Gale wished to end the secondment and included the fact that there were concerns about the Claimant’s performance. It seems to us that the question is whether those parts of the conversation were ‘discussions held’ with a view to the employment being terminated via a settlement agreement. It seems to us that where a party starts a conversation by setting out the reasons why a settlement proposal is going to be made, the ‘discussions’ include those reasons and not just the proposal itself. If that were not the case then any gentle run in to a protected conversation would fall outside the protection of Section 111A. Having that conversation was Alan Wishart’s purpose of calling the meeting in the first place. We find that the subsequent conversations on 7 and 13 May 2021 were also pretermination negotiations.

[743]It follows that the evidence of what was discussed at these three meetings will be inadmissible unless there was some improper behaviour. The main focus of the Claimant’s complaints was that the introduction of any suggestion that she might leave the Respondent’s employment for reasons connected with her employment was a bolt from the blue. She relied upon the conclusions of Janet King in her investigation report. In fact those findings are somewhat nuanced. She had rejected the Claimant’s suggestion that Alan Wishart had behaved in a way that was callous and unprofessional, had a lack of sympathy and understanding. However, she said: ‘The investigator does however find that the message being delivered could reasonably be seen to be callous: SR was being told that she was facing being performance managed when she had not been provided with evidence that supported this; she was told that VMG did not want her in the team and wanted the secondment to end which could reasonably be taken to mean that VMG did not want her back in the office and she could not return to her substantive role, because of the perceived issues there. This put SR in an invidious position; move roles again; be performance managed by a manager that did not want her in the team or exit the Trust. Based on this evidence this allegation is therefore upheld in part.’

[744]We would broadly adopt the findings of Janet King. However we have one reservation. That is that we have found that the Claimant had a greater awareness of the performance concerns that Victoria Miles-Gale had than Janet King appears to have thought. We have found that the Claimant was aware that there were issues with her performance. It is hard to imagine how she could not have done given what was discussed at the meetings of 15 and 22 April 2021.

[745]We accept that at the meeting on 5 May 2021 the Claimant was told that Victoria Miles-Gale wanted to end the secondment. As Janet King rightly notes that would mean that if the Claimant remained in the patient experience team she was going to be performance managed by a person who believed the secondment was not working.

[746]As paragraph 3 of the Code of Practice says settlement agreements may be proposed prior to undertaking any other formal process. Indeed that is the rationale behind Section 111A. Negotiations can commence prior to there being any dispute that would attract ‘without prejudice’ protection. At paragraph 11 the Code of Practice says: ‘How the proposal is made can very depending on the circumstances. It may be helpful if any reasons for the proposal are given when the proposal is made’.

[747]Paragraph 18 of the Code of Practice gives a non-exhaustive list of examples of improper behaviour. We have rejected the Claimant’s contention that Alan Wishart told her that he would not be investing in any training. The Claimant did not suggest that Alan Wishart raised his voice or that he made any threats to her other than the suggestion that she might face a performance management process. We have set out our findings as to the reasons why Alan Wishart held the meeting. These do not amount to victimisation either on its meaning within the equality act or in more common parlance. In those circumstances we do not find that there was any improper conduct that might fall within paragraphs 18 (a) – (c).

[748]We have rejected each of the claims of discrimination made against Alan Wishart. It follows that there was no improper conduct falling within paragraph 18(d).

[749]The conversations between Alan Wishart and the Claimant never got as far as written terms being proposed. The Code of Practice suggests that 10 working days to consider written terms would be a minimum. We do not consider that that has any application to negotiations that have not got as far as written terms being proposed. However, we would accept that if a deadline were imposed to consider terms in principal that might be improper. We find that no such deadline was imposed. The Claimant was not told that any offer made would be ‘off the table’ unless accepted within a deadline. As such we do not consider that there was any improper pressure falling within paragraph 18(e)(i) placed on the Claimant to accept any offer.

[750]Paragraph 18(e)(ii) suggests that it would be improper conduct for an employer to tell an employee that they were going to be dismissed if the settlement agreement is rejected. The Claimant was not told that she would be dismissed. However, she was told that Victoria Miles-Gale wanted to end the secondment. As Janet King found that meant that the Claimant was faced with a performance management process probably conducted by Victoria Miles-Gale or a new role. There is a distinction between a secondment being brought to an end and a dismissal. The Claimant had been expressly promised that if the secondment ended that would not mean that she was dismissed. Alan Wishart acknowledged the possibility of a move to another role.

[751]We find that the Claimant was not told that a decision had been taken that she would be dismissed if she did not agree the terms of a settlement agreement. Alan Wishart’s message was stark but it fell short of the sort of conduct the Code of Practice suggests was improper. The Code is not an exhaustive list of improper conduct. We need to ask ourselves whether what Alan Wishart told the Claimant in relation to the alternatives to agreeing the settlement was improper. We have come to the conclusion that it was not. Alan Wishart acknowledged that the Claimant could not be dismissed without a process being followed. We do not think that anything he said would equate to him suggesting that there was nothing that the Claimant could do or say that would enable her to remain employed. He was honest with the Claimant about the views that Victoria Miles-Gale had of her behaviour and performance. It was that that had led to the conversation taking place. We do not find that this amounts to improper conduct. That is not to say that the Claimant could not feel disappointed at what she was told.

[752]The other examples in paragraph 18 have no application to the present

[753]A matter which we considered in this context is the fact that, for reasons we do not really understand, Alan Wishart told the Claimant expressly that he was not having a protected conversation. He obviously was. This must be seen against the fact that Alan Wishart had not suggested that the Claimant be accompanied, although he later agreed to deal with her trade union representative. The Code of Practice says that whilst it is not a legal requirement employers should allow an employee to be accompanied. We note that it is not suggested in the code that it would be improper not to do so.

[754]We need to stand back and look at all the surrounding circumstances. We find that the Claimant’s performance including her behaviour had caused genuine concern. It had reduced Victoria Miles-Gale to tears. A secondment organised to give the Claimant a fresh start was in danger of breaking down. The Claimant ought to have known of the concerns. Alan Wishart approached the Claimant and offered her an option to avoid a performance management process or another move. Both parties understood that there were alternatives if the Claimant refused the offers made – which she did.

[755]We consider that many of the concerns raised by Victoria Miles-Gale had been rumbling concerns that we find ought to have been addressed sooner. They had been addressed informally but not with the rigour that the Respondent’s policy suggests should be applied.

[756]Taking matters in the round we find that the circumstances that prevailed by 5 May 2021 were exactly the sort of circumstances where it might have been appropriate to have a protected conversation. We have come to the conclusion that a difficult message might have been more tactfully delivered but there was no improper conduct.

[757]If we are wrong about that then if the matters we have addressed above do amount to improper conduct then we find that it would not be just to admit into evidence details of a conversation that fall plainly within the spirit of Section 111A. Objectively Alan Wishart was simply giving the Claimant an option to avoid a difficult performance management process in circumstances where Victoria Miles-Gale felt that she could not continue to work with the Claimant. The fact that that made for some stark choices for the Claimant was simply a statement of the situation as it stood.

[758]It follows that we find that we are not entitled to have any regard to the protected conversations that took place on 5. 7 and 13 May 2021 when deciding whether the Claimant was constructively dismissed. Was there a dismissal?

[759]The way that the Claimant has put her case is that she relied upon each instance that she has alleged was an act of discrimination either individually or cumulatively as amounting to a breach of the implied term identified in Mahmood v BCCI (‘the implied term’). At a preliminary hearing before EJ Ross on 7 December 2022 the Claimant identified the receipt of the outcome of her grievance on 26 November 2021 as being the ‘final straw’. That is the last act which had the quality referred to in Omilaju. There was some discussion in the preliminary hearing that took place before EJ Sugarman on 10 May 2023 about whether the Claimant was bound by that apparent concession. In his judgment EJ Sugarman held that she was (see paragraphs 53 and 57-59) at least for the purpose of the applications before him. At a further preliminary hearing before E Burns the scope of the constructive dismissal was further discussed. The Claimant sought to resile from her concession in respect of the last act contributing to any breach of the implied term. At paragraph 4 EJ Burns made an order that the scope of the allegations said to amount to a constructive dismissal was limited to 26 November 2021 ‘but nothing later than that’. At paragraph 5 he briefly set out his reasons. That order was not the subject of any appeal.

[760]We have noted that in the Claimant’s letter of resignation she complains that the process and outcome of the appeal is unfair. She complained about the extent to which she had been assisted to return to work. The Claimant did refer to these matters in her second ET1 at paragraph 3 and in the particulars at paragraph 7.

[761]This case was the subject of several case management hearings. Most of those hearings considered the scope of the claims. It appears to us that the Claimant’s original pleaded case went beyond the events of 26 November 2021. However, during the case management process it appears that the Claimant made a concession about the scope of her case. She was entitled to do so and, if the concession remained binding she should be taken to have abandoned any part of her case consistent with that concession. Thereafter two other judges had examined whether the Claimant was entitled to expand her case. Both decided that she was not. EJ Burns made an order to that effect. The case proceeded before us on the basis of the order made by EJ Burns. No application to resile from the concession was made by the Claimant. In those circumstances we decided the case on the basis that it was set out in the schedule of issues.

[762]The fact that the Claimant has failed to establish any claims under the Equality Act 2010 is not fatal to her claim of unfair dismissal. An action alleged to be discriminatory might be or contribute to a breach of the implied term even if it was not. We must revisit the allegations of discrimination bearing that firmly in mind.

[763]Given that we have set out in full our findings of fact as to which events occurred and, where necessary, the reasons for any acts and omissions we do not propose to repeat those findings here. We shall instead set out a summary of our conclusions drawn from those findings (found in our general findings of fact and within our conclusions on the Equality Act claims). We then step back to reach an overall conclusion. We shall deal with each period of the Claimant’s employment.

[764]There are two events that the Claimant relied upon during her original band 4 role that she says contributed to a breach of the implied term. These were Alan Wishart telling her that he would not invest in her training and Kathryn Halford telling her she was overqualified to be her PA and offering to assist her career. We have not accepted the factual basis of either complaint.

[765]The case as put in the schedule did not make any allegations about the time that the Claimant worked for Kenye Karemo because, as claims of discrimination, they were struck out. They were removed from earlier drafts of the schedule. In fairness to the Claimant, we have considered whether any events that the Claimant has referred to during that period contributed to a breach of the implied term. We have reviewed our findings of fact. We have accepted Kenye Karemo’s account of all material contentious events. With the single exception of the communications around the issue of whether the Claimant’s secondment was to be made permanent we find that there was nothing said or done by Kenye Karemo that a reasonable employee would complain of. In respect of that latter matter, we have accepted Kenye Karemo’s explanation for why she asked the Claimant to accept a 6 month extension. However we found that: ‘this was a sloppy process and the Claimant was understandably annoyed’. This is not conduct that, of itself, would be capable of amounting to a breach of the implied term, but we accept that if there was other conduct of a like nature it might contribute to such a breach.

[766]We have reviewed our findings in respect of the time that the Claimant was working as Kathryn Halford’s PA. Our findings are very broadly consistent with those of Janet King. Whilst we have found that the Claimant’s performance gave rise to genuinely held and legitimate concerns we must focus on the conduct of Kathryn Halford and not that of the Claimant.

[767]We find that during the Claimant’s time working for Kathryn Halford there were matters that she could legitimately complain about. Whilst she had a very demanding job and whilst she was under huge pressure we agree with Janet King that when Kathryn Halford spoke to junior staff, including the Claimant, she would adopt a tome that has been described by others as ‘school mistress like’. We would prefer to say that she appeared to talk down to junior staff members. We accept that she did not know that she did and we accept that she did not intend to offend but that is beside the point.

[768]A further significant matter of which the Claimant could legitimately complain is the difficulties she experienced because Kathryn Halford continued to depend on Gemma Blackabee. It was clearly a significant source of frustration to Joanne Wingrave. The situation persisted when the Claimant took over the role. Christine Smith, very astutely, saw that ‘history was repeating itself’. We accept that to an extent Kathryn Halford’s reasons included the unfortunate IT difficulties experienced by the Claimant but that is not a full explanation.

[769]We consider that these two features of the time that the Claimant worked for Kathryn Halford were capable of damaging the necessary trust and confidence. We test that against the fact that Joanne Wingrave though the situation so intolerable that she resigned. That said, we do not consider that this conduct in isolation would have reached the threshold of seriously damaging the necessary trust and confidence. We should make it clear that it comes very close.

[770]We do not consider that the Claimant can reasonably complain of her move to the Patient Experience team. She welcomed that. We need to consider whether anything that Victoria Miles-Gale did breached or contributed to a breach of the implied term.

[771]To summarise our findings of fact above we have found that when the Claimant arrived in the Patient Experience Team Victoria Miles-Gale recognised that she had had a difficult time working for Kathryn Halford and that she was fragile. She put into lace a system of monitoring and mentoring that until April 2021 was working well. We find that she made every effort to bring the Claimant’s performance and her self confidence up to par. We find that whilst Victoria Miles-Gale had performance concerns about the Claimant during this period she believed that the situation would improve. We find that there was nothing whatsoever that the Claimant could reasonably complain of about Victoria Miles-Gale’s conduct towards her or her workload during this period. We have rejected any suggestion that she was doing more work than could be expected under her contract. She was doing less.

[772]We have found that Victoria Miles-Gale’s opinions changed following the Claimant’s response to Christine Matthews input into the PEEAG Agenda. That caused Victoria Miles-Gale to criticise the Claimant both at the time and during the meeting on 15 Aril 2021. In the meting of April 2021 the Claimant told Victoria Miles-Gale that her team talked behind her back. This led Victoria Miles-Gale to believe that the secondment was not working. This led to the meeting of 23 April 2021 and in turn to Alan Wishart meeting with the Claimant on 5 May 2021.

[773]We find that Victoria Miles-Gale had reasonable cause to question whether, after months of careful coaching, the secondment should not be brought to an end. We remind ourselves that the test for whether there is a breach of the implied term includes the qualification that the employers acts are without reasonable cause. We do not consider that to be the case here. The Claimant’s allegations against Christine Matthews were a wholly unwarranted attack on her integrity. Her comments about Victoria MilesGale were remarkably tactless and unkind. We find that it was inevitable that something needed to be done.

[774]We have rejected the Claimant’s suggestion that there was some plan orchestrated by Kathryn Halford to get Victoria Miles-Gale to performance manage the Claimant out from the outset, or indeed at any time. We have not accepted a great deal of the evidence of Antionette Webber who subscribes to the same evidentially unfounded theory as the Claimant. The early months of Victoria Miles-Gale’s management of the Claimant, clearly evidenced by agreed one-to-one notes, show a totally different picture than that painted by those two witnesses.

[775]We have found that we are not entitled to have any regard to the protected conversations on 5, 7 and 13 May 2021.

[776]We would accept that the relationship between the Claimant and Victoria Miles-Gale between 6 May and 3 June 2021 when she left the department was strained. However we have not upheld any of the Claimant’s claims for this period and having regard to our findings we conclude that there was nothing that the Claimant could reasonably complain about.

[777]The final period of the Claimant’s employment that we need concern ourselves with is the period up to 26 November 2021. We make the following findings.

[778]During this period the Respondent continued to keep in contact with the Claimant. We find that the management of her ill health was conducted in a reasonable and sensitive way.

[779]We find that it was sensible, and in accordance with the Claimant’s own wishes, that her grievances were investigated by an independent person. We find that the investigation was very thorough. We do not accept that there was any intimidation of the Claimant’s witnesses.

[780]We find that Janet King conducted a thorough investigation. Furthermore she did so in a reasonable time given the complexity and scope of the complaints. Her report is balanced and fair. Having heard evidence over many days in the employment Tribunal we have come to similar if not identical conclusions. In particular, it recognised the difficulties that the Claimant experienced when working for Kathryn Halford. We find that Caroline Roberts acted entirely reasonably in adopting the conclusions and recommendations.

[781]In conclusion we find that there is nothing from the point in time that the Claimant joined the Patient Experience Team that the Claimant could reasonably have complained of.

[782]We have asked ourselves whether the matters that we have identified as being capable of contributing to a breach of the implied term taken together did breach that term. We have come to the conclusion that the matters we have identified do not reach that threshold. We accept that the Claimant had a reasonable cause to complain. What we do not accept is that the conduct, objectively, was sufficient to seriously damage the trust and confidence necessary for the employment relationship.

[783]That conclusion is fatal to the Claimant’s contention that there was a serious breach of contract. However, lest we have fallen into error we shall deal with the additional points below.

[784]If we are wrong about the gravity/impact of Kathryn Halford’s conduct then we would need to consider whether the grievance outcome amounted to a ‘last straw’. We need to consider whether it had the qualities identified in Omilaju. We have already indicated that the grievance process was at least reasonable. The outcome in respect of the allegations against Kathryn Halford was that the grievance resulted in recommendations that if implemented would have addressed the Claimant’s complaint. Kathryn Halford did not escape without criticism. In those respects the Claimant was told that she was right. We recognise that in many areas the outcome of the grievance was a disappointment to the Claimant but mainly because she had made allegations that were unsupported by evidence. Standing back and asking whether the grievance outcome added anything however slight to a breach of the implied term we have come to the conclusion that it did not.

[785]We shall deal only briefly with the issue of affirmation. We shall assume that we are wrong about the final straw and that the relevant period that we need to consider is 26 November 2021 through to 1 July 2022.

[786]Whilst we are precluded from considering any event during that period as a breach of contract because of the way that the Claimant put her case it does not mean that we cannot have regard to what happened when deciding whether the Claimant affirmed the contract.

[787]The Claimant was off work through the entire period. She did not provide her services. However, she continued to be paid her contractual sick pay and resigned at the point that that would have ended. She continued to liaise with the Respondent’s occupational health service and received advice and recommendations beneficial to her health.

[788]As we have indicated the Claimant appealed the outcome of the grievance. It is clear that she did not consider that she had received sufficient redress. She received the outcome of that appeal in March 2022.

[789]We are aware that there were discussions that took place during this period that were conducted on a without prejudice basis. We know nothing more about those. If they were discussions that fell within Section 111A we would not be entitled to have regard to them for any purpose.

[790]We do not consider that the Claimant ought to be taken to have affirmed the contract in circumstances where she was pursuing a grievance appeal. She was clearly protesting about her treatment. However, the Claimant then delayed for several more months before handing in her resignation. We have considered whether she should be taken to have affirmed the contract during that period. We remind ourselves that the mere passage of time is not enough of itself to indicate affirmation. Taking on board that she was very unwell during this period and having regard to the fact that she was taking a decision to leave the NHS, her employer for many years, we do not find that the Claimant should be taken to have affirmed the contract. However, given our other findings it is of no consequence because she was not entitled to treat herself as being dismissed. There was no serious breach of contract that entitled her to do so. Wrongful Dismissal

[791]The Claimant had indicated a claim for notice pay in her ET1. Neither party focussed on that claim but we deal with it for completeness. In the light of our finding that the Claimant was not dismissed by the Respondent that claim cannot succeed. An apology

[792]This decision is very long and very late. This is entirely the fault of the Employment Judge and not that of the lay members. The reasons for this have been communicated to the parties separately and shall not be repeated here other than to say that the Employment Judge apologises for the delay and the distress that he recognises this will have caused. Approved by: