Employment Judge A.M.S. GreenIn person for claimantMr D Tatton Brown - Counsel for respondentDate 14 April 2026
JUDGMENT
[1]The claimant’s claim to be disabled has no reasonable prospect of success and her disability related claims are struck out under Rule 37.[2]The claimant’s indirect sex discrimination/part-time workers discrimination claims having no reasonable prospect of success are struck out under Rule 37.
REASONS
[1]For ease of reference, I refer to the claimant as Mrs Ward and the respondent as Sternberg Reed.[2]Mrs Ward is a solicitor who worked at Sternberg Reed, a firm of solicitors, in their Clinical Negligence Department. In September 2022, she was dismissed. Sternberg Reed maintains that her dismissal was because her position was redundant on the premise that they decided to close down the Clinical Negligence Department. Mrs Ward does not agree with this, and she presented several claims to the Tribunal on 27 October 2023 following a period of early conciliation which started on 25 August 2022 and ended 28 on September 2022. She alleges that her dismissal was unfair and that her dismissal was an act of direct race discrimination and that she suffered victimisation. Mrs Ward is a black British female of Caribbean descent. Mrs Ward also brought a number of disability related and part-time workers discrimination claims. She has also brought complaints regarding nonpayment of historic bonuses.[3]Mrs Ward alleges that in February 2019 she was diagnosed with anxiety and depression [17]. She avers that she was again diagnosed with the same condition in March 2022 [28]. She maintains that her condition is an impairment, and that she is disabled for the purposes of the Equality Act 2010, section 6 (“EQA”). Sternberg Reed denies that Mrs Ward is disabled. Alternatively, if Mrs Ward was disabled at the relevant time, Sternberg Reed says that it did not know or could not be taken to have known that she was disabled.[4]Regarding the non-payment of her bonuses, her claims are limited to bonuses that she says should have been paid in the years 2017/18 and 2018/19. Mrs Ward does not complain about her bonus in the years 2019/20, 2020/21 or 2021/2022. Sternberg Reed maintains that these claims are significantly out of time and should be struck out.[5]This hearing was listed to consider Sternberg Reed’s application to have Mrs Ward’s disability and disability related claims struck out or, in the alternative, to require Mrs Ward to pay a deposit as a condition of being allowed to continue to pursue those claims.[6]Sternberg Reed maintains that the disability and disability related claims should, in summary, be struck out or be subject to a deposit order as follows: The C’s contention that she was disabled at the time of her dismissal/the process associated with her dismissal has no reasonable prospect of succeeding. It follows that all her disability related claims should be struck out. … Alternatively, those claims have little reasonable prospect of success. In the further alternative, if ( contrary to the above) the ET is not persuaded that the C has little prospect of showing that she was disabled at the material time and is not persuaded that she has little prospect of showing that the R knew or ought to have known of her disability, nevertheless she has little prospect of establishing both those things so she ought to be required to pay a deposit as a condition of proceeding with her disability claims.[7]Sternberg Reed maintains that the indirect sex discrimination/part-time workers discrimination claims should, in summary, be struck out will be subject to a deposit order as follows: The C has no reasonable prospect of success in succeeding with her complaints regarding a bonus scheme introduced in July 2017. This is because the claims are manifestly out of time and she has no reasonable prospect of persuading the ET to extend time. … Alternatively, the C has little reasonable prospects of success in succeeding in showing that that her 2017/18 bonus was a detriment to which she was subjected on the ground that she was a part time worker or establishing that ET has jurisdiction to consider her bonus complaints and she should be required to pay a deposit as a condition of continuing with them.[8]At the hearing, we worked from a digital bundle. Given that Sternberg Reed were seeking a deposit order, I required Mrs Ward to give oral evidence as to her means and her ability to pay should I be minded making a deposit order. Although, she had not prepared a witness statement, Mr Tatton Brown did not object to Mrs Ward giving oral evidence and he crossexamined her. Mrs Ward and Mr Tatton Brown made closing submissions.[9]In reaching my decision, I have carefully considered the oral and documentary evidence, the written and the oral submissions. The fact that I have not referred to every document produced in the hearing bundle should not be taken to mean that I have not considered it. Mrs Ward’s disability impact statement[10]Mrs Ward has prepared a disability impact statement [194]. I have carefully considered what she has written and do not intend to paraphrase the contents of her statement but, I note the following statement she makes concerning her alleged disability: … 5. I suffer from a mental impairment, anxiety and depression due to work-related stress. 6. I was first diagnosed with work-related stress, anxiety and depression around February 2019. I consulted my GP, who signed me off work. I was on sick leave between February and July 2019. I was signed off work again by my GP in March 2022, due to work-related stress, anxiety and depression. I returned to work in July 2022. After I returned, I suffered a major setback, due to being unsupported and eventually being made redundant. Again, I consulted my GP for support during the period of my return to work on redundancy. He suggested signing me off again but I had only just returned to work. I wanted to build some resilience, get back to normality and I was also concerned about losing my livelihood. 7. I believe that my mental impairment is now long term, as it seems to heighten/recur when I’m exposed to high levels of stress. Applicable
Law
[11]Rule 53 (1) (c) of the Rules of Procedure confirms that a Tribunal has the power to consider the issue of strike at out a preliminary hearing. Rule 37 sets out the grounds on which a Tribunal can strike out a claim or response (or part). A claim or response (or part) can be struck out on a variety of grounds including that it is scandalous or vexatious or has no reasonable prospect of success (rule 37 (1) (a)).[12]In Anyanwu and anor v South Bank Student Union and anor 2001 ICR 391, HL, discrimination cases are generally fact sensitive, and any issues should usually only be decided after all the evidence has been heard. However, in that case, Lord Hope observed: The time and resources of the employment tribunals ought not to be taken up by having to hear evidence in cases that are bound to fail[13]In Chandhok v Tirkey [2015] ICR 527 Langstaff P cited Anyanwu and went on to say at paragraph 20: This stops short of a blanket ban on strike-out applications succeeding in discrimination claims. There may still be occasions when a claim can properly be struck out—where, for instance, there is a time bar to jurisdiction, and no evidence is advanced that it would be just and equitable to extend time; or where, on the case as pleaded, there is really no more than an assertion of a difference of treatment and a difference of protected characteristic which (per Mummery LJ in Madarassy v Nomura International plc [2007] ICR 867 , para 56): “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.” Or claims may have been brought so repetitively concerning the same essential circumstances that a further claim (or response) is an abuse. There may well be other examples, too: but the general approach remains that the exercise of a discretion to strike out a claim should be sparing and cautious.[14]The Tribunal must take a view on the merits of the case and only where it is satisfied that the claim or response has no reasonable prospect of succeeding can it exercise its power to strike out.[15]In Ahir v British Airways plc 2017 EWCA Civ 1392, CA, the Court of Appeal asserted that tribunals should not be deterred from striking out even discrimination claims that involve disputes of fact if they are entirely satisfied that there is no reasonable prospect of the facts necessary to find liability being established, provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been explored. The Court accepted that the test for strike-out on this ground with its reference in rule 37(1)(a) to ‘no reasonable prospect of success’ was lower than the test in previous versions of the strike out rule, which referred to the claim being frivolous or vexatious or having ‘no prospect of success’. In this case, the Court upheld an employment judge’s decision to strike out the victimisation and discrimination complaints of an employee who had been dismissed for falsifying his CV. His claims were based on allegations that six managers who had each separately considered the admitted misconduct of the employee during the disciplinary process had allowed their decisions to be tainted by the protected acts of the employee even though there was no evidence to suggest that they were aware of those protected acts. The Court concluded that the employment judge had rightly described the allegations as ‘fanciful’ and struck out the claims as having no reasonable prospect of success.[16]In Kaur v Leeds Teaching Hospitals NHS Trust 2019 ICR 1, CA, Lord Justice Underhill reiterated the sentiment he had previously expressed in Ahir when concluding that an employment judge had correctly struck out a constructive dismissal claim based on a final straw incident on the basis that it had no reasonable prospect of success. His Lordship observed: ‘ Whether [striking out] is appropriate in a particular case involves a consideration of the nature of the issues and the facts that can realistically be disputed. There were in this case, no relevant issues of primary fact. Had the matter proceeded to a full hearing the job of the tribunal would not have been to decide the rights and wrongs of the [final straw] incident of 22 April, and it would not have heard evidence directly about that question. The issue would have been whether the disciplinary processes were conducted seriously unfairly so as to constitute, or contribute to, a repudiatory breach of the Appellant’s contract of employment. The evidence relevant to that question in substance consisted only of the documentary record. It is true that if there were any real grounds for asserting actual bad faith on the part of the decision-makers that could not have been resolved without oral evidence; but that was not the pleaded case, and the employment judge was entitled to conclude that there was no arguable basis for it.[17]In E v X, L and Z UKEAT/0079/20 (10 December 2020, unreported) the immediate point in this appeal was that a second Employment Judge had erred in overturning a case management decision of the first Employment Judge without these being a change in circumstances. However, of more general importance is the context, namely a striking out of a claim raising the always difficult area (on time limits) of whether the claimant can rely on the concept of 'acts extending over a period'. The judgment of Ellenbogen J in the EAT at [50] subjects this question to lengthy guidance in the light of six leading cases, namely Sougrin v Haringey Health Authority [1992] IRLR 416, Robinson v Royal Surrey County Hospital NHS Foundation Trust UKEAT/0311/14 (30 July 2015, unreported), Sridhar v Kingston Hospital NHS Foundation Trust UKEAT/0066/20 (21 July 2020, unreported), Caterham School Ltd v Rose UKEAT/0149/19 (22 August 2019, unreported), Lyfar v Brighton & Sussex University Hospitals NHS Trust [2006] EWCA Civ 1548, and Aziz v FDA [2010] EWCA Civ 304. The guidance is lengthy, but is important and is set out here in full:a. In order to identify the substance of the acts of which complaint is made, it is necessary to look at the claim form: Sougrin.b. It is appropriate to consider the way in which a claimant puts their 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.c. 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.d. It is important that the issues for determination by the tribunal at a preliminary hearing have been identified with clarity. That will include identification of whether the tribunal is being asked:(1) to consider whether a particular allegation or complaint should be struck out, because no prima facie case can be demonstrated; or(2) substantively to determine the limitation issue: Caterham.e. 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.f. 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.g. 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.h. In an appropriate case, a strike-out application in respect of some part of a claim can be approached assuming, for that purpose, the facts to be as pleaded by the claimant. In that event, no evidence will be required – the matter will be decided on the claimant's pleading: Caterham.i. 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.j. If a strike-out application succeeds, on the basis that, even if all the facts were as pleaded, the complaint would have no reasonable prospect of success (whether because of a time point or on the merits), that will bring that complaint to an end. If it fails, the claimant lives to fight another day, at the full merits hearing: Caterham.k. Thus, if a tribunal considers (properly) at a preliminary hearing that there is no reasonable prospect of establishing at trial that a particular incident, complaint about which would, by itself, be out of time, formed part of such conduct together with other incidents, such as to make it in time, that complaint may be struck out: Caterham.l. Definitive determination of an issue which is factually disputed requires preparation and presentation of evidence to be considered at the preliminary hearing, findings of fact and, as necessary, the application of the law to those facts, so as to reach a definitive outcome on the point, which cannot then be revisited at the full merits hearing: Caterham.m. If it can be done properly, it may be sensible, and, potentially, beneficial, for a tribunal to consider a time point at a preliminary hearing, either on the basis of a strike-out application, or, in an appropriate case, substantively, so that time and resource is not taken up preparing, and considering at a full merits hearing, complaints which may properly be found to be truly stale such that they ought not to be so considered. However, 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 be 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 to 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.[18]EQA, section 6 defines a ‘disabled person’ as a person who has a ‘disability’. A person has a disability if he or she has ‘a physical or mental impairment’ which has a ‘substantial and long-term adverse effect on [his or her] ability to carry out normal day-to-day activities.’ The burden of proof is on Mrs Ward to show that she meets this definition.[19]In J v DLA Piper UK [2010] ICR 1052, the EAT was concerned with the question whether conditions described as “depression” will amount to impairments. Underhill P said: 42. The first point concerns the legitimacy in principle of the kind of distinction made by the tribunal, as summarised at para 33 (3) above, between two states of affairs which can produce broadly similar symptoms: those symptoms can be described in various ways, but we will be sufficiently understood if we refer to them as symptoms of low mood and anxiety. The first state of affairs is a mental illness-or, if you prefer, a mental condition-which is conveniently referred to as “clinical depression” and is unquestionably an impairment within the meaning of the Act. The second is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work) or-if the jargon may be forgiven- “adverse life events”. We daresay that the value or validity of that distinction could be questioned at the level of deep theory; and even if it is accepted in principle the borderline between the two states of affairs is bound often to be very blurred in practice. But we are equally clear that it reflects a distinction which is routinely made by clinicians-it is implicit or explicit in the evidence of each of Dr Brener, Dr MacLeod and Dr Gill in this case-and which should in principle be recognised for the purposes of the Act. We accept that it may be a difficult distinction to apply in a particular case; and the difficulty can be exacerbated by the looseness with which some medical professionals, and most lay people, use such terms as “depression” (“clinical” or otherwise), “anxiety” and “stress”. Fortunately, however, we would not expect those difficulties often cause a real problem in the context of a claim under the Act. This is because of the long-term effect requirement. If, as we recommend at para 40 (2) above, a tribunal starts by considering the adverse effect issue and finds that the claimant’s ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for 12 months or more, it would in most cases be likely to conclude that he or she was indeed suffering “clinical” depression rather than simply a reaction to adverse circumstances: it is a commonsense observation that such reactions are not normally long-lived.[20]Underhill P’s statement above was referred to and approved by the EAT in Herry v Dudley Metropolitan Council UKEAT/0101/16. It went on to say: 56. Although reactions to adverse circumstances are indeed not normally long-lived, experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers little or no apparent adverse effect normal day-today activities. A doctor may be more likely to refer to the presentation of such an entrenched position as stress and as anxiety or depression. An Employment Tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with the decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by and Employment Tribunal) are not of themselves mental impairments: they may simply reflect a person’s character or personality. Any medical evidence in support of the diagnosis of mental impairment must of course be considered by an Employment Tribunal with great care; so must any evidence of adverse effect over and above and unwillingness to return to work until an issue is resolved to the employee’s satisfaction; but in the end the question whether there is a mental impairment is one for the Employment Tribunal to assess.[21]EQA, section 123(1) legislates for time limits in bringing discrimination claims. It provides that proceedings of this nature 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, orb. such other period as the employment tribunal thinks just and equitable.[22]EQA, section 123 and its legislative equivalents do not specify any list of factors to which a tribunal is instructed to have regard in exercising the discretion whether to extend time for ‘just and equitable’ reasons. Accordingly, there has been some debate in the courts as to what factors may be relevant to consider.[23]To establish whether a complaint of discrimination has been presented in time it is necessary to determine the date of the act complained of, as this sets the time limit running. Where the act complained of is a single act of discrimination, this will not usually give rise to any problems. A dismissal, for example, is considered to be a single act and the relevant date is the date on which the employee’s contract of employment is terminated. Where dismissal is with notice, the EAT has held that the act of discrimination takes place when the notice expires, not when it is given (Lupetti v Wrens Old House Ltd 1984 ICR 348, EAT). Rejection for promotion is also usually considered a single act. In this case, the date on which another person is promoted in place of the complainant is the date on which the alleged discrimination is said to have taken place (Amies v Inner London Education Authority 1977 ICR 308, EAT). Steenberg Reed’s submissions[24]Mr Tatton Brown provided the Tribunal with a 15-page skeleton argument which he adopted and expanded upon when he made his oral submissions. I do not propose paraphrasing the skeleton argument, but it is referred to and incorporated herein for the sake of brevity.[25]Mr Tatton Brown made the following key submissions on the facts relating to Mrs Ward’s claim to be disabled because of anxiety and depression:a. Mrs Ward’s case is that she suffers from a mental impairment of sufficient severity to satisfy the definition of disability as set out in EQA, section 6. She relies upon her claim that she suffers from anxiety and depression having been diagnosed with that condition twice, first in February 2019 and secondly in March 2022. Mrs Ward claims that this impairment is long-term and substantial. Steenberg Reed maintains that this claimed disability has no reasonable prospect of success because Mrs Ward has not provided any evidence to the Tribunal that she was suffering from anxiety and depression. Mr Tatton Brown acknowledged that Mrs Ward had provided considerable evidence to the Tribunal of her dealings with her GP [164-188]. These records run to 25 or 26 pages although the original records indicate that there were 46 pages in total. The Tribunal did not have all 46 pages. Furthermore, many of the records were redacted.b. The current problems that Mrs Ward suffers from are listed on the first page of the GP records. In the section headed “Significant Past”, running from 29 December 1977 until 6 July 2022, there were no significant past problems identified by the GP to suggest a mental impairment relevant to the claim of disability.c. The section in the GP records entitled “Minor Past” has entries running from 14 September 2006 until 8 September 2022. There were two records relating to stress at work. The first is on 4 March 2022 and the second is on 8 September 2022.d. The medical records indicated that Mrs Ward took time off work through illness based on work-related stress in 2019. Indeed, Mrs Ward has pled this. Similarly, the records show that she took time off work through illness based on work-related stress in 2022. Mrs Ward relies on these two absences in support of her contention that she was disabled in 2022. Mr Tatton Brown submitted that Mrs Ward’s claimed diagnosis of anxiety and depression was not referred to as a past minor problem.e. The medical records are detailed, and Mr Tatton Brown did not propose going through them exhaustively. However, the critical point that he made was that nowhere in the 46 pages was any reference made to depression. In his submission it was a source of concern to Steenberg Reed for Mrs Ward to claim that she had been diagnosed with anxiety and depression twice. Mr Tatton Brown acknowledged that there was an entry in the GP records for 11 January 2019 [185] where it was commented that Mrs Ward may have had an anxiety and panic attack. This related to the first period of absence from work in 2019. I was then taken to the entry for 8 February 2019 [185] where the GP identifies the problem as work-related stress.f. Mr Tatton Brown submitted that there was no reference to anxiety in the GP records relating to Mrs Ward’s absence from work in 2022. During that period, Mrs Ward regularly attended her GP as evidenced by the contemporaneous notes. It appeared that she had visited her GP for various reasons. Nowhere in those notes was there any reference to depression. Any references made to anxiety were fleeting and limited to 2019.g. In view of the foregoing, Mrs Ward had no reasonable prospect of establishing that she had been diagnosed with anxiety and depression and was unable to meet the statutory definition set out in EQA, section 6.h. I was then taken to an occupational health report dated 21 May 2019 [190]. Mrs Ward had a face-to-face meeting with Mr Jonathan Crabtree. The reason for the referral was work-related stress and not depression. Paragraph 3 of the report records that Mrs Ward had been absent from work since 7 February 2019. The main cause for this absence is reportedly linked to a breakdown in relations between Mrs Ward and her manager. Mr Crabtree also recorded that Mrs Ward was generally fit and well and had not declared any health issues that were likely to impact on her ability to undertake a job role. Mr Crabtree records that Mrs Ward was not taking any medications that were likely to impact on her ability to undertake a job role. He noted that Mrs Ward had sought appropriate advice from her GP during her period of absence and that she is regularly reviewed. Mr Crabtree then states [192]: Johanne has not declared any health conditions that are likely to come under the terms of the Equality Act (2010) however this is a legal rather than a medical decision.i. In Mr Tatton Brown’s submission, the absence of evidence undermined Mrs Ward’s case to establish that she is disabled. Furthermore, the periods of absence from work did not meet the 12-month threshold required to meet the statutory definition of disability.j. I was then taken to Mrs Ward’s response to the application to strike out her claims. She had referred to her counselling records [127] which had a manuscript note “reactive low” against a line entry entitled “Depression”. This related to a meeting between Mrs Ward and her counsellor in April 2019. Mrs Ward’s counsellor was a psychotherapist and not a medical doctor [128]. The records show that Mrs Ward was suffering difficulties at work, and she had been signed off by her GP for work-related stress. Her GP had recommended counselling. Mrs Ward had not been diagnosed or signed off with anxiety and depression. Her anxiety was linked to her work and relationship problems with her manager. There was also reference to issues that Mrs Ward had with her relationship with her husband. Mr Tatton Brown acknowledged the entry identifying low reactive depression. However, in his submission low level depression was reactive to events at work and did not come close to establishing a diagnosis of anxiety and depression. In any event, these are related to 2019.k. Mrs Ward had responded to clarify that the main reason that she had consulted her GP was because she was suffering stress at work. In Mr Tatton Brown’s submission this was not a medical condition but a state of affairs causing stress and anxiety. The key point was that as Mrs Ward was no longer at work after September 2022 that state of affairs could not have continued thereafter. I was taken to the GP records and, in particular, the entry for 14 December 2022 where the GP recorded, during a mental health review, that Mrs Ward was doing alright and felt better as she does not have to communicate with her work. She is recorded as having more good days than bad days and her sleep was better. She is recorded as having spoken to her counsellor and she did not have suicidal thoughts. This did not indicate that Mrs Ward was suffering from a continuing impairment.l. Mr Tatton Brown submitted that Mrs Ward was advancing a case that she was disabled as of September 2022. Such a claim had no reasonable prospect of success. Mr Tatton Brown acknowledged that the Tribunal should approach a strike out application cautiously given this was a discrimination case. However, he distinguished this case from others on the basis that Mrs Ward had to prove that she was disabled. She had not done that on the evidence. She had been given ample opportunity to provide the evidence and had failed to do so.m. By way of completeness, Mrs Ward had provided a letter from her GP Dr Hameed dated 28 July 2023 [323]. This referred to Mrs Ward first consulting Dr Hameed on 4 March 2022 because of work-related stress. He then narrates the history of further consultations during 2022 and 2023. The reference for December 2022 (after her employment ended) indicated that Mrs Ward was feeling mentally well because she did not have to communicate with her workplace. In Mr Tatton Brown’s submission, this proved that her stress ended when her employment ended and was not continuing. This was another adminicle of evidence showing that the statutory definition of disability could not be met. Further on in the letter, reference was made to Mrs Ward suffering from stress, but this is connected to life events such as the Tribunal claim. Finally, Dr Hameed summarised his conclusion as follows: In summary, Mrs Ward has had two episodes of work-related stress but was affecting her mental health that led to anxiety and low mood. These episodes affected her so badly that she had to take time off work and she experienced anxiety, palpitations, dizzy spells, sleep disturbances, low mood and low in confidence.[26]Mr Tatton Brown then addressed me on the alternative argument that on the hypothesis that Mrs Ward was disabled, Steenberg Reed did not know or could not reasonably have known of her disability at the relevant time. In particular, he submitted:a. Mrs Ward had claimed that the basis of Steenberg Reed’s knowledge was derived from the fact of her long-term absence from work. Mr Tatton Brown submitted that both periods of absence were nowhere near close enough to 12 months. The absences consisted of Mrs Ward being signed off at two weekly intervals for stress at work. Cumulatively, both periods amounted to 6 months after which Mrs Ward was able to return to work. The specified reason for absence was stress at work which was insufficient to impute knowledge on Steenberg Reed that Mrs Ward was suffering from anxiety and depression.b. I was taken to paragraph 31 of the skeleton argument where Mr Tatton Brown summarised the documents relied upon by Mrs Ward to establish Steenberg Reed’s knowledge (actual or constructive). None of these documents established that Steenberg Reed knew or ought to have known about the claim disability. At its highest, the formal grievance raised by Mrs Ward in an email dated 12 July 2022 [307] referred to the possibility that Mrs Ward was disabled. Steenberg Reed accepted what was written in that email, but it did not constitute information upon which it could be said that it knew or ought to have known that Mrs Ward was disabled. Mrs Ward could say that in the light of her assertion that she was disabled, Steenberg Reed ought to have commissioned an occupational health report to investigate that assertion. That was accepted as a factual issue that would have to be resolved by the Tribunal. There was no evidence that Mrs Ward had been seen by occupational health and that a hypothetical person would have produced a report that concluded that she was disabled. The mere fact that suggested that an occupational health consultation should take place did not mean that Steenberg Reed ought to have known that Mrs Ward was disabled. Mr Tatton Brown submitted that this was a “Micawber” and impermissible approach to imputing knowledge on the premise that “something might turn up” if there had been a referral to occupational health. There was no real prospect of Mrs Ward establishing that Steenberg Reed new or ought to have known that she was disabled.c. If I was not with Mr Tatton Brown on the application to strike out the disability claim, I was invited to make a deposit order.[27]Mr Tatton Brown then addressed me on the bonus claim. In summary, he said as follows:a. The claim was years out of time and had no reasonable prospect of success.b. The burden was on Mrs Ward to persuade the Tribunal to exercise discretion to extend time.c. The statutory limitation period was three months. The bonus claims related to payments that should have been made in 2017/18 and 2018/19. In subsequent years, there have been bonuses declared. Mrs Ward had not complained about those. In Mr Tatton Brown’s submission, this established that bonuses were declared annually and could not be seen as a continuing series of acts. On that analysis, Mrs Ward’s complaints related to one-off acts in each of the years 2017/18 and 2018/19. This was an obvious point. I was referred to Mrs Ward’s email to Kelly Rotherham dated 19 January 2022 [336] where Mrs Ward had made a proposal regarding her bonus for the year 2021/22. Mrs Rotherham rejected that proposal on behalf of the partners in an email to Mrs Ward on 8 February 2022 [336]. In Mr Tatton Brown’s submission, this was evidence that decisions regarding the payment of the bonus were not only discretionary but made on an annual basis and were selfcontained. Every year, there would be a discussion about the payment of a bonus and eligibility thereto. This was further evidence against any suggestion that the exercise of discretion regarding bonuses constituted a continuing series of acts.d. On the premise that the decisions regarding the payment of bonuses in 2017/18 and 2018/19 was stand-alone and not continuing acts, then the burden would fall on Mrs Ward to persuade the Tribunal to exercise discretion to extend time on the basis that it would be just and equitable to do so. Mrs Ward had not offered any basis to enable the Tribunal to extend time.e. Mr Tatton Brown also submitted that Mrs Ward had not complained about these bonuses at the time. Although she was a litigant in person, she is a solicitor albeit not an employment lawyer. However, she was quite capable of complaining and only did so when she raised a formal grievance in 2022. Given her background in practicing clinical negligence and personal injury cases, she would have been well aware and familiar with the importance of time limits, and she would or ought to have known where to find details of the time limits that were applicable.f. Given the foregoing, there was no justification to extend time in respect of what was an unmeritorious case. If time were to be extended, the Tribunal would have to hear a completely new body of evidence about decisions that were taken many years ago. Mrs Ward had made no attempt to explain why it was just and equitable to extend time and it was not appropriate for the Tribunal to wait and see if something turned up as part of disclosure. I was invited to strike out the claim or, to make a deposit order.g. Mrs Ward had other claims which are proceeding to the seven-day final hearing that had already been listed. If I did not strike out the claim as identified in the application or grant the deposit order, the effect would be greatly to complicate matters, requiring further time for the final hearing which would, in turn increase the cost in defending claims that were years out of date. Mrs Ward’s submissions[28]Mrs Ward prepared a 10-page response to the application dated 4 August 2023 [228] which she adopted and expanded upon when she made her oral submissions. I do not propose paraphrasing the response, but it is referred to and incorporated herein for the sake of brevity.[29]Mrs Ward submitted that most discrimination cases are fact sensitive and require the evidence to be tested at a final hearing. Consequently, Steenberg Reed’s application to strike out some of her claims was premature. Furthermore, the application predated disclosure which was due to happen next month. Even though Mrs Ward had provided some documentary evidence, she said a lot more was still to come. Consequently, the Tribunal only had a snapshot of the evidence before it and, by implication, not the complete picture.[30]Regarding her GP notes, I was referred to the entry for 11 January 2019 which referred to Mrs Ward suffering from anxiety and panic attacks [185]. I was referred to numerous entries in the GP records for the following dates: 4 April 2019, 15 May 2019, 3 & 24 June 2019, 11 October 2019, 8 November 2019, 9 December 2019.[31]I was referred to Dr Gormley’s referral letter of 13 February 2019 [296] referring to Mrs Ward suffering with fairly significant workplace stress and with what sounded to them like anxiety and significant panic attacks.[32]Mrs Ward said that she had a diagnosis of anxiety and depression, but she accepted that the word depression was not referred to in her GP records. She said that she had been prescribed sertraline and had been referred to counselling because of mental impairment. She said that her stress at work had been accompanied by anxiety and depression.[33]Mrs Ward referred to her length of absence and the fact that she had to return to work on a phased basis which had taken longer than she had expected [297-301]. She had returned to work in July 2022 but had encountered further issues with the way that she was treated as set out in her return-to-work interview record [311-313].[34]Mrs Ward maintained that she suffered from anxiety and depression and there was sufficient evidence before the Tribunal to support that conclusion. It would be unjust and premature to strike out her disability claims or to issue a deposit order. She also believed that referral to occupational health would have caused Steenberg Reed to conclude that she was disabled.[35]I was also referred to the GP records the 2022 as further evidence of her disability.[36]Turning to the application to strike out her indirect discrimination and bonus claims, Mrs Ward repeated her contention that these were fact sensitive and to strike them out before disclosure would not only be premature but also unjust.[37]Mrs Ward submitted that whilst the bonus claims went back to 2017, she only became aware of various discrepancies in Steenberg Reed’s records on her billing and previous bonus payments made to her over a number of years when she obtained information from them in July/August 2022. She had not raised anything before because she was unaware of the situation.[38]In response to Mr Tatton Brown’s contention that the setting of bonuses was a discrete act, if that was the case, Mrs Ward questioned why she had not been informed on an annual basis what her bonus target was after 2019. Mrs Ward had asked for an explanation back in 2022 which was only provided in March 2023, and which still made no sense to her. She submitted that without proper disclosure from Steenberg Reed, she could not work out what bonuses she was entitled to receive. The basis upon which it would be just and equitable to extend time for these claims was set out in paragraph 58 of her response.[39]Regarding the bonus for 2019/2020, Mrs Ward submitted that she could not complain if she did not have verifiable information. The information that had been provided to her did not make sense. Steenburg Reid’s rebuttal[40]Regarding the disability claim, Mr Tatton Brown said that Mrs Ward had taken the Tribunal to a large number of documents upon which she relies but there was no evidence that there was a diagnosis of depression and anxiety. This continued to be a cause of concern because she was asserting that there was such a diagnosis at specific points in time. The headline point was that the GP notes were very extensive, they recorded conversations that took place between Mrs Ward and her GP. The further letter of support issued by Dr Hameed did not support Mrs Ward’s case at all. Mrs Ward had not identified a diagnosis of anxiety and depression.[41]On the question regarding whether it would be just and equitable to extend time because there were historic complaints about bonuses, Mrs Ward had argued that this discretion should be exercised in her favour on the basis that she had only recently received relevant information last year. Mr Tatton Brown submitted that this was a hopeless submission and did not provide a basis upon which time should be extended. He reminded the Tribunal that this related to an indirect sex discrimination claim and my attention was drawn to paragraphs 63 and 65 of the amended particulars of claim [74 & 75] which allege that Mrs Ward’s bonus targets should have been adjusted to reflect her part-time status and that more women than men work parttime. The failure to make that adjustment acted to Mrs Ward’s detriment. Steenberg Reed did not accept this but, that argument did not depend on identifying some sort of comparator when Mrs Ward said she had made her claim late and could not bring it any earlier because she had learned that other employees had been given a bonus. Such a line of argument would be relevant to a claim of direct discrimination. However, Mrs Ward was making a claim of indirect sex discrimination. Her claim was confused and should be struck out. Discussion and conclusions The disability related claims[42]I find that the disability related claims have no reasonable prospect of success and are struck out for the following reasons:a. Mrs Ward, contrary to what she states in her disability impact statement, and in her particulars of claim, has never received a diagnosis of anxiety and depression from a GP or other medically qualified doctor.b. Mrs Ward has suffered from anxiety in 2019 and in 2022. This was connected to work-related stress. She had two periods of sickness absence. However, both periods were substantially less than 12 months.c. Since leaving her employment, she has not suffered from work-related stress, although she has experienced some stress arising from these Tribunal proceedings. Her health appears to have improved. I accept that her psychotherapist expressed the opinion that Mrs Ward had lowlevel reactive depression in April 2019, but this was clearly linked to problems that she was having at work. Mrs Ward’s stress was caused by her difficulties at work, which in itself does not amount to a disability. The indirect sex discrimination/part-time workers discrimination claims[43]I find that the indirect sex discrimination/part-time workers discrimination claim should be struck out as having no reasonable prospect of success for the following reason.[44]Steenberg Reed operates a bonus policy. Bonuses are declared annually and are subject to the exercise of discretion each year that they are awarded. They are discrete stand-alone exercises. They are not part of a continuing series of acts. Mrs Ward’s claims in respect of the 2017/2018 and the 2018/2019 bonuses are significantly out of time. I do not accept her argument that she was only able to advance these claims after being provided with information from Steenberg Reed last year. If she was unhappy about the fact that she was not paid a bonus in those years, she could have raised a grievance at the time. As an experienced litigation solicitor she would have been well aware of the importance of time limits for issuing proceedings. It is telling that she has not taken exception to bonuses that were declared after 2018/2019. There are no just and equitable grounds to extend time to allow these claims to be heard by the Tribunal.[45]Given that the evidence of both parties was deficient and that we had fewer witnesses than EJ Feeney was anticipating, we decided to use the reading time given in EJ Feeney’s timetable to allow the claimant to write/complete her witness statement and for Mrs Rotheram to supply an amended statement and additional bundle that filled in the gaps in the respondent’s case. We made the following orders:45.1 The case was adjourned until 2:00pm on the second day; 23 of 5845.2 By 4:00pm on Monday 1 July 2025, the respondent was to produce a supplementary bundle of documents dealing with the claimant’s bonus claim and send a copy to the Tribunal and the claimant; and;45.3 By 12:00pm on Tuesday 2 July 2025, the parties were to exchange the claimant’s witness statement and the respondent’s supplementary statement from Mrs Rotheram.[46]We ended the hearing at 11:06am and released the parties until 2:00pm on the second day. We used the rest of the day to complete our reading. Whilst reading the documents, we noticed that there were no documents concerning the claimant’s grievance that was submitted on 12 July 2022, and no evidence that covered it. This was relevant because the claimant asserted that the grievance was a protected act in her victimisation claim.[47]We asked our Clerk to write to the respondent, copying in the claimant, as follows: “EJ Shore has asked me to write to you about one or two matters that have come up during the Tribunal’s reading of the papers.• Could you email in a Word copy of the List of Issues [pages 91-84 of the bundle], please?• Whilst there are mentions of a second grievance in the claimant’s ET1 and in the Chronology (Grievance submitted on 12 July 2022; Grievance meeting 7 September 2022; Grievance decision given to claimant on 27 September 2022; Appeal made 30 September 2022; Grievance appeal 31 October 2022, etc,, there do not seem to be any documents about the process in the bundle and none of your statements make reference to the second Grievance. Could you provide electronic and hard copies of the missing documents and cover the second Grievance in the witness statement that is to be produced tomorrow, please? Could you also indicate by tomorrow at 12:00pm if you intend to call Jane Morel, please?”[48]We had asked the question about Ms Morel because the respondent’s case appeared to be that they and the claimant had agreed that the claimant was not interested in a job as a Private Client Solicitor at the respondent’s Grays office as a suitable alternative vacancy to redundancy. Ms Morel was the respondent’s Head of Private Client who interviewed the claimant. Day Two[49]The respondent sent a supplementary bundle to the Tribunal and the claimant at 3:03pm on Monday 1 July 2025. It consisted of 354 pages, including an index. If we refer to pages from the supplementary bundle, the page number(s) will be in square brackets, with the prefix “SB” to indicate that the document is from the supplementary bundle (e.g. [SB 101-123]). 24 of 58[50]The claimant submitted a witness statement by the prescribed time. It was dated 2 July 2025 and consisted of 174 paragraphs.[51]The respondent submitted a supplementary witness statement from Mrs Rotherham by the prescribed time. It was also dated 2 July 2025 and consisted of fifty-eight paragraphs.[52]We read the witness statements and the supplementary bundle of documents. The claimant’s witness statement contained a great deal of background information that was not relevant to the issues that we had to determine in the case. That is not a criticism of her; it is a statement of fact. Mrs Rotheram’s statements also contained evidence that addressed background matters and were not relevant to the matters we had to determine.[53]We started the hearing at 2:00pm and confirmed which documents we had received. Mr Ward then told us that he had submitted some additional documents at approximately 1:15pm that day. Mrs Rotheram confirmed that she had received the documents but had not opened or read them. The documents were:53.1 The claimant’s appraisal dated 10 September 2019;53.2 The claimant’s appraisal dated 19 January 2015;53.3 An email dated 6 March 2017 from Kathryn Turner, who was the respondent’s Head of Clinical Negligence at the time to Dino Enahoro (a Solicitor in the respondent’s Clinical Negligence department) and the claimant about fee targets for the year.53.4 An email dated 14 May 2023 from Lauren Collins, who worked as a [title] in the respondent’s Clinical Negligence department to the claimant with the heading “Redundancy”;53.5 The claimant’s contract of employment with the respondent dated 20 March 2006;53.6 The respondent’s Sickness Policy, which was described as dated from 2022;53.7 The claimant’s grievance appeal dated 23 July 2019;53.8 An email dated 13 October 2015 from the Kathryn Turner to the claimant;53.9 Emails of various dates in 2021 between the claimant and Darren Conway, who was the former Head of Clinical Negligence for the respondent;53.10 An email dated 21 May 2015 from the claimant to Mrs Rotheram and partners in the respondent headed “Career Progression”;53.11 An extract from the respondent’s manual headed “Performance Management Policy and Procedures”; 25 of 5853.12 The claimant’s appraisal dated 19 January 2015;53.13 An email dated 4 January 2018 from Frances Anderson, a former partner in the respondent, who had been Head of Operations before she retired in June 2020, with an Associate - Competency Assessment Form;53.14 Emails dated 20 September 2019 and 4 October 2020 from the claimant to Mrs Rotheram about the caseload of Darren Conway, who had recently resigned; and53.15 A letter from the respondent to the claimant dated 20 March 2006 offering her employment with the respondent. We subsequently added all the documents to the bundle. We have noted the page numbers from the hearing bundle (HB) that we allocated to the documents.[54]Mrs Rotheram asked for additional time to link the claimant’s witness statements to the relevant pages in the bundle to assist her cross-examination. Mr Ward asked for additional time to consider the new documents received from the respondent.[55]Before making our decision on the question of further time, we asked the parties how long they anticipated questioning each other’s witnesses. Mrs Rotheram said she thought she may be an hour with the claimant. Mr Ward gave the same estimate for the respondent’s witnesses. We found it unlikely that sets of crossexamination would be over in 60 minutes but decided to adjourn the hearing until 10:00am on 3 July 2025 when we would hear from Mrs Ward.[56]We then amended the timetable. We reconsidered the timetable on our own initiative (because I miscounted the days available to us) as follows, which allowed some slippage time if cross-examination went on longer than anticipated: Day Morning Afternoon 3 Claimant’s evidence Respondent’s evidence 4 Closing arguments (30 Deliberations minutes each side) Deliberations 5 Deliberations Deliberations 6 Deliberations Delivering Judgment on Liability 7 Dealing with remedy Delivering Judgment on Remedy 26 of 58
Remedy
[57]It was intended that the parties would exchange closing submissions at 9:00am on Friday 4 July. We notified the parties of the change by email on 3 July 2025.[58]We released the parties at 2:30pm. Day Three[59]The Tribunal received an email from the respondent copied to the claimant at 1:14pm on 2 July (Day Two) that was forwarded to us at 9:37am on Day Three. It objected to the inclusion of two of the documents that the claimant had submitted, emails from the respondent’s former HoD in the Clinical Negligence department and Lauren Collins, who was also made redundant from the respondent’s Clinical Negligence department at the same time as the claimant.[60]The hearing started at 10:10am. We dealt with the additional documents first. The other documents submitted by the claimant were accepted by the respondent. The two email statements dated 25 October 2021, and 14 May 2023 respectively were objected to as hearsay. We explained that there was no rule against hearsay in the Employment Tribunal, but as the authors of the emails had not been called to give evidence, we could give the statements little weight.[61]Mrs Rotheram said that the respondent had not seen the documents before. Mr Ward said that they had been sent to the respondent some time ago and would confirm the date of the email that contained the two documents. We left if to the parties for the claimant to determine when the documents were sent to the respondent and for the respondent to check whether it had received them and got on with the evidence.[62]The claimant gave evidence on oath from 10:25am and relied on her witness statement dated 2 July 2025 that consisted of 174 paragraphs. We had read the witness statement the previous day and found that it contained many paragraphs that were background, which we defined as information that may be important to the claimant, but which did not help us determine the issues in the case. We indicated to the claimant that we would not give much weight to the background information. We indicated to Mrs Rotheram that we would not require her to crossexamine the claimant on the following paragraphs of the claimant’s witness statement: 1-52; 61-75; 80 (this paragraph dealt with a without prejudice discussion about the claimant’s employment which is protected by privilege and should not have been disclosed to the Tribunal. We ignored the paragraph in our consideration of the facts.); 84-88; and 89-97. These paragraphs constituted about half of the claimant’s witness statement.[63]As an adjustment, we took breaks every hour or so. At every break we indicated to the claimant that she could not speak to anyone about the case during the break. We repeated this warning to all subsequent witnesses where appropriate. We took our first break from 11:15am to 11:26am. We broke again between 12:15pm and 12:20pm and took lunch between 1:05pm and 2:05pm.[64]On the resumption, cross-examination of the claimant continued until 3:05pm, when we took a break until 3:15pm. Cross-examination ended at 3:25pm. There were no questions from the Tribunal and no re-examination. 27 of 58[65]Jane Morel, the respondent’s Head of Private Client Department, gave evidence on oath for the respondent from 3:30pm. Her witness statement was dated 9 September 2024 and consisted of seventeen paragraphs [WS 34-37]. There were no supplemental questions.[66]Mr Ward cross-examined the witness from 3:30pm until 3:42pm. Mrs Henry asked one question of the witness. Professor Ukemenam asked one question. I had no questions for the witness. Mrs Rotheram asked one re-examination question, which prompted Professor Ukemenam to ask a further four questions. There was no further re-examination, and the witness was released with the agreement of Mr Ward at 3:52pm.[67]We then discussed the case with the representatives and asked them to be prepared to make closing submissions on the following day. The hearing closed at 4:00pm. Day 4[68]We started the hearing on the fourth day at 10:18am. We advised the parties that as we had not completed the evidence, we would hear closing submissions at the start of the fifth day, which would give them the weekend to hone their closing arguments.[69]Mr Ward advised the Tribunal that the additional documents that he submitted to the Tribunal had been sent to the respondent on 28 September 2023. This was not disputed, so we allowed the documents to be admitted.[70]We then heard evidence on oath from Soulla Kokkinos, the respondent’s Head of Family Department. Her witness statement was dated 9 September and consisted of sixty-five paragraphs.[71]Ms Kokkinos was cross-examined from 10:20am until 11:15am, when we took a break. We resumed at 11:25am and continued until 11:30am. Professor Ukemenam asked three questions. Mrs Henry asked five questions. I asked one question. The Tribunal questions ended at 11:49am. Mrs Rotheram asked reexamination questions until 11:54am. The witness was released with the agreement of Mr Ward.[72]Kelly Rotheram, the respondent’s CEO gave evidence on oath. Her witness statement was dated 9 September 2024 and consisted of ninety-three paragraphs. Whilst she was giving evidence, Ben Thomas, a partner in the respondent, took over as its representative.[73]We allowed Mr Thomas to ask supplementary questions to address the matters raised by the documents produced to the Tribunal by the claimant. Mr Thomas asked eight questions, ending at 12:15pm. Mr Ward then cross-examined the witness until 12:50pm, when we broke for lunch.[74]We resumed at 1:50pm and continued until 2:32pm, when Mr Ward finished his cross-examination. Professor Ukemenam asked one question. Neither Mrs Henry nor I asked any questions. There was no re-examination and we took a break at 2:40pm. 28 of 58[75]On the resumption at 2:48pm, Emily Minton, who is an Associate Solicitor for the respondent, gave evidence on affirmation. Her witness statement was dated 5 September 2024 and consisted of fifty-one paragraphs.[76]There were no supplementary questions. Ms Minton was cross-examined by Mr Ward until 3:01pm. Mrs Henry asked the witness two questions. Professor Ukemenam asked one question. There was no re-examination. The witness was released with the agreement of Mr Ward. We closed the hearing for the day at 3:08pm. Day 5[77]The Tribunal received the respondent’s closing submissions at 7:37am and the claimant’s closing submissions at 9:52am. Our assigned Clerk was ill, and replacement was not allocated until 9:45am, so we did not get the submissions until after 10:00am. The air conditioning unit in the hearing room sprung a leak and we had to call in the maintenance team to deal with the situation.[78]A journalist had applied for CVP access to the hearing, which the Clerk had to set up. In the event, the journalist did not attend. We eventually started the hearing at 10:58am. We apologised to the parties.[79]Mrs Rotheram relied on her closing submissions, which consisted of 71 paragraphs. She made no references to any case law. Mrs Rotheram spoke from 10:58am to 11:30am. I asked her about the claimant’s unauthorised deduction from pay claim, which appeared to be conceded. It was agreed by Mrs Rotherham that the claimant was owed the sum of £1,281.20 gross without deduction of Income Tax or employee’s National Insurance contributions. Mr Ward accepted the calculation after discussion. The figure proposed by the respondent was more than the figure claimed by the claimant.[80]Mr Ward relied on his closing submissions that consisted of 65 paragraphs. He relied on one case: Coulson v Rentplus UK Ltd [2022] EAT 81, which concerned a sham redundancy process after a decision to dismiss had been taken long before the redundancy process started. We closed the hearing for the day and advised the parties that we would consider our decision and give a judgment on liability, which would include any findings on Polkey and/or contributory fault at 10:00am on Day 7.[81]We started our deliberations ta 11:45am on Day 5 and continued until the evening of Day 6. We put the start of the hearing on Day 7 back to 12:00pm. Day 7[82]We started the heating at 12:00pm and delivered our extensive oral Judgment and Reasons until 12:30pm. The claimant asked for written reasons.[83]Note from EJ Shore – It is entirely my fault that the written Judgment and reasons in this case have ben delayed by four months. I make an unreserved apology to the parties and my colleagues. The reasons for the delay are the health of my family, my own health, and the pressure of other Judgments that were heard before this case at a time when I was under a 29 of 58 great deal of pressure due to my responsibilities as a carer to elderly relatives who subsequently died, and the fact that I sit part-time at East London and have duties in another region. Undisputed Facts[84]We should record as a preliminary finding that a number of relevant facts were not disputed, not challenged, or actually agreed by the parties. These were:[85]The claimant was employed by the respondent, a firm of solicitors, from 3 July 2006 to 9 September 2022, when her employment was terminated for the stated but disputed reason of redundancy. The claimant had joined the respondent as a Solicitor but at the time of her dismissal, she was employed as an Associate Partner in the respondent’s Clinical Negligence department.[86]The claimant started early conciliation with ACAS on 25 August 2022 and obtained an ACAS early conciliation certificate dated 28 September 2022. She presented her ET1 and Attachment on 27 October 2022 [11-29]. The claimant was represented by a solicitor, Ms Grieff, at this time, who drafted the ET1 and Attachment. Ms Grieff represented the claimant on a pro-bono basis.[87]The claimant brought claims of:87.1 Unfair dismissal;87.2 Direct discrimination because of race;87.3 Indirect discrimination because of sex;87.4 Detriment because she was a part-time worker;87.5 Discrimination arising from disability;87.6 Failure to make reasonable adjustments;87.7 Victimisation; and87.8 Unauthorised deduction from wages.[88]The respondent presented a response form (ET3) [30-37] and Grounds of Resistance [38-49] on 28 November 2022.[89]It was agreed that the claimant reduced her working hours to 27 hours per week in August 2014. It was agreed between the parties that the claimant met the definition of part-time worker. 30 of 58[90]It was agreed that the claimant raised the possibility of raising a grievance about her perceived lack of career progression (she had not been promoted to Associate Solicitor) in March/April 2015.[91]The respondent launched an Associate and Partner Development Programme (“APDP”) in June 2015. The claimant joined the Programme.[92]In December 2017, Kathryn Turner, the HoD in the respondent’s Clinical Negligence department, began a period of maternity leave. The claimant acted up as HoD during Ms Turner’s maternity leave.[93]Between 5 February 2019 and 30 April 2019, the claimant was absent from work due to ill health, returning on a phased return.[94]On 24 May 2019, the claimant raised a grievance [643-663] against Kathryn Turner (she was then known as Kathryn May). She alleged “bullying and harassment.” The grievance was not upheld at a meeting on 17 June 2019, and the claimant appealed the decision on 25 July 2019 by a document dated 23 July 2019.[95]The grievance appeal was heard by Mohinder Gill, who was a partner in the respondent at the time, but who retired in June 2024. The appeal was not upheld. The claimant was notified of this on 6 August 2019.[96]On 10 September 2019, the claimant had her annual appraisal with Mrs Rotheram and Frances Anderson, a partner in the respondent and Head of Operations, who retired in June 2020.[97]In April 2020, Kathryn Turner left the respondent. Darren Conway, a Solicitor with a Legal Aid qualification that qualified him to run state-funded Clinical Negligence cases, was promoted to Head of Department of the respondent’s Clinical Negligence department. The claimant had not applied for the role outright but had suggested that she undertake the role jointly with Mr Conway. The respondent rejected the claimant’s suggestion that the role be shared. The claimant agreed that she did not have the Legal Aid qualification that Mr Conway had.[98]In December 2020, the respondent informed the claimant (and others) that it was considering promoting some Solicitors to Fixed Equity Partnership. The new status would mean that the claimant would have become self-employed and would be required to invest capital into the respondent, amongst other things. On 25 May 2021, the claimant was offered either a Fixed Equity Partnership, or Associate Partner status. An Associate Partner has no equity in the business and is an employee of the respondent. She would be held out as a Partner to the outside world. On 26 May 2021, the claimant chose to accept the offer of Associate Partnership.[99]On 1 July 2021, the respondent converted its status from a partnership to a Limited Liability Partnership (“LLP”). The claimant’s employment transferred to the LLP under The Transfer of Employment (Protection of Employment) Regulations 2006 (“TUPE”). 31 of 58[100]On 12 July 2021, Darren Conway resigned. He left the respondent on 8 October 2021. On 3 August 2021, the claimant was advised that she would not be promoted to HoD of Clinical Negligence; Mohinder Gill, Head of Civil Litigation, would head the Clinical Negligence team. The claimant was told she would report to Mrs Rotheram.[101]On 5 August 2021, the claimant was told that she would receive a pay rise, backdated to 1 April 2021. The claimant requested a higher pay rise. The request was refused on 16 August 2021.[102]On 1 October 2021, the respondent announced to staff the Partner and Associate Partner promotions that had been agreed, including the claimant’s promotion to Associate Partner.[103]On 10 February 2022, the respondent held a Partnership Meeting at which it was decided to look at the options for the future of the Clinical Negligence department.[104]On 15 February 2022, the claimant emailed all Partners and expressed the opinion that she was not being given adequate support by Mrs Rotheram and that her concerns had not been addressed.[105]On 4 March 2022, the claimant began a period of sick leave[106]On 25 March 2022, Julie Young (HR) made a note of a conversation with the claimant [552 HB].[107]On 24 May 2022, the respondent granted the claimant additional paid leave to cover her sickness absence to 30 June 2022. Without this concession, the claimant would no longer receive employer’s sick pay on the expiry of three months’ sickness absence.[108]On 30 May 2022, the claimant asked Julie Young from HR if she was a disabled person [563 HB]. Mrs Rotheram respondent on 31 May 2022 [577 HB].[109]In June 2022, a firm of solicitors confirmed an offer to take the respondent’s Clinical Negligence cases.[110]On 15 June 2022, the claimant indicated that she hoped to return to work “…in July…” 2022. On 29 June 2022, the claimant confirmed her return date as 18 July 2022.[111]On 8 July 2022, the claimant, Emily Minton, and Lauren Collins received a written notice that their positions were at risk of redundancy, which included a calculation of their redundancy pay entitlement. On 12 July 2022, there was a meeting of the respondent’s Clinical Negligence team, which included the claimant, Emily Minton, Lauren Collins, Kelly Rotheram, and Charlotte Woolven-Brown (a nondesignated member of the LLP, Human Resources Partner, and Head of Employment who left the respondent in September 2023).[112]On 12 July 2022, the claimant submitted a grievance alleging [57-65 SB] that she was a disabled person and that the respondent’s bonus arrangements were unfair and/or unreasonable. 32 of 58[113]On 13 July 2022, the claimant submitted alternative proposals to redundancy to the respondent. On the same date, the claimant was advised of the roles at the respondent that were available as alternatives to redundancy.[114]On 15 July 2022, the claimant’s last MED3 certificate from her GP expired.[115]On 18 July 2022, the clamant returned to work.[116]On 23 August 2022, the claimant met with Julie Young for a return-to-work interview.[117]On 29 July 2022, the respondent confirmed that the claimant’s redundancy would proceed and confirmed the potential alternative roles available to the claimant were in the Family and Private Client departments.[118]On 2 August 2022, the claimant advised the respondent that she wished to be considered for roles in both departments.[119]On 23 August 2022, the claimant attended a return-to-work interview with Julie Young (HR Manager) [574-576 HB] at which the claimant raised her disability and requested that she be allowed to work from home for all her contracted hours. The claimant was on annual leave from 24 August 2022 to 6 September 2022. The claimant began early conciliation with ACAS against the respondent on 23 August 2022.[120]On 1 September 2022, the claimant was invited to two meetings on 8 September 2022.[121]Charlotte Woolven-Brown heard the claimant’s grievance on 7 September 2022. The claimant was accompanied by her husband, Jason Ward.[122]On 8 September 2022, the claimant was interviewed by Soulla Kokkinos (HoD Family) and Francesca Clay (Partner Family) for the vacancy in the Family Department. On the same date, she was interviewed by Jane Morel (HoD Private Client) for the vacancy in the Private Client department.[123]On 8 September 2022, the two interviews took place.[124]On 9 September 2022, the claimant was notified that she was to be made redundant, and her contract of employment was terminated on 9 September 2022. It was agreed that this was the effective date of termination.[125]On 13 September 2022, the claimant appealed her redundancy dismissal. On 23 September 2022, the respondent invited the claimant to an appeal hearing, which took place on 27 September 2022. The claimant was accompanied by her husband. The appeal was heard by Richard Cooper, a Partner in the respondent’s Crime department. Julie Young took notes.[126]On 27 September 2022, the claimant was advised of the outcome of her grievance by Charlotte Woolven-Brown. The grievance was not upheld. 33 of 58[127]On 28 September, ACAS issued the claimant with and Early Conciliation certificate.[128]On 30 September 2022, the claimant appealed the grievance decision. The grievance appeal was acknowledged by the respondent on 4 October 2022. The meeting to hear the appeal before Ben Thomas (Partner, Crime) was scheduled for a date after his return from annual leave.[129]On 10 October, the respondent sent the claimant the decision in her appeal against dismissal. The appeal was rejected.[130]On 26 October 2022, the respondent sent the claimant the minutes of the grievance meeting on 27 September 2022.[131]The claimant presented her ET1 and Attachment on 27 October 2022 [11-29 SB].[132]The grievance appeal hearing was held on 31 October 2022. Ben Thomas was the respondent’s decision maker. Julie Young took notes. The claimant was accompanied by her husband.[133]The claimant was advised that her grievance appeal was not upheld on 22 December 2022. The respondent provided the claimant with reasons why the grievance appeal had not been upheld on 23 March 2023. Points of Dispute[134]We have not made findings of fact on much of what is alleged by the claimant in her lengthy witness statement because we did not find that many of the matters referred to therein were relevant to the issues that we had to determine. We notified the claimant and her representative of our intentions before she gave evidence. We did not make findings of fact on the evidence of Ms Rotherham which we did not find assisted us to make findings of fact that were relevant to the Issues in the case. We did consider matters that were not claims of themselves but were background from which we might make inferences about the actual claims before us.[135]The Tribunal must deal with matters in a proportionate way – we must allocate time and resources to an Issue (a question that we must find the answer to) that is proportionate to its importance or value. This must be done through the lens of the List of Issues, which sets out the claims, and in a way that ensures that we only address matters that are relevant to the issues we must determine.[136]We will therefore address the findings of fact in the order of the issues set out in the list of issues. It may be that some findings made in the earlier issues are relevant to later issues. 34 of 58 Unfair Dismissal (ss.94-98 Employment Rights Act 1996) Reason for Dismissal[137]We find that the respondent has shown on the balance of probabilities that the reason for dismissal was redundancy. We make that finding because we find:137.1 The claimant was one of three fee-earners (including Lauren Collins, who checked medical records and reports but was not a Solicitor or engaged in purely legal work) in the respondent’s Clinical Negligence department at the time of her redundancy. This was never disputed;137.2 The respondent decided to stop doing Clinical Negligence work137.2.1 The partners in the respondent voted to stop doing the work on 10 February 2022 [329 HB];137.2.2 The rationale for stopping Clinical Negligence work was contained in Mrs Rotheram’s report to the partners dated 6 February 2022 [325-328 HB] and listed the following factors:137.2.2.1 The respondent had twenty-eight current Clinical Negligence files;137.2.2.2 Only three of the twenty-eight cases were cases that were likely to generate substantial fees (i.e., they were designated as “large cases”);137.2.2.3 All three of the large cases were unlikely to be resolved for some years;137.2.2.4 The firm had lost its Head of Department (Mr Conway) in October 2021, which had presented an issue with the firm’s Legal Aid position, as he had been its Legal Aid Supervisor and the firm had no one to replace him, as no one in the department was on the Clinical Negligence Panel;137.2.2.5 Mrs Rotheram had limited trust in the remaining members of the department being able to handle the more complex cases;137.2.2.6 The claimant, as the senior remaining lawyer in the department, was unlikely to achieve Panel status within the 3-month timescale that Mrs Rotherham anticipated would be the maximum time that the Legal Aid Authority would give the respondent to find a replacement. We find that Mrs Rotherham’s evidence on the point was credible; and 35 of 58137.2.2.7 The respondent had failed to find a suitable replacement as Head of Department and did not consider that the claimant was ready to take up the role.137.2.3 Additionally, the following factors were also in play:137.2.3.1 The respondent had been notified of an exceptionally large professional negligence claim against it from a former client. Its Professional Indemnity Insurance (“PII”) insurers had advised the respondent that its premiums would rise by over £200,000 per year because of the claim and that the respondent may not be insurable if it did not drop Clinical Negligence work. We take judicial notice (facts that we can accept to be to be true without requiring formal proof of evidence) that a firm of solicitors cannot practice without appropriate PII;137.2.3.2 The respondent’s After the Event (ATE) insurer had indicated that it would no long offer the respondent cover for Clinical Negligence cases because of the low volume of claims it was handling. It was agreed evidence that the claimant read the first letter from the ATE insurer about its proposal to cease offering insurance; and137.2.3.3 The level of incoming new cases was falling; and137.2.3.4 The respondent’s first plan was to sell the Clinical Negligence cases to one of two other specialist Clinical Negligence firms at a premium.137.2.4 None of the respondent’s evidence above was seriously disputed by the claimant.137.3 In its At-risk Notice letter to the members of the Clinical Negligence department dated 8 July 2022, the respondent repeated some and added further details of the reason for its decision to close the department [166-168 HB]:137.3.1 Reducing profitability because of the implementation of fixed fees in Clinical Negligence work;137.3.2 The removal of ATE funding;137.3.3 The unsustainable nature of the funding of Clinical Negligence work given the long-term nature of the work (i.e., the respondent had to pay for the legal 36 of 58 work and disbursements such as medical reports as they were incurred but only received payment for the case on its conclusion); and137.3.4 The general high-risk profile of Clinical Negligence work not aligning with the firm’s strategy to reduce risk and avoid significant increases in its insurance premium.137.4 We find that the respondent has shown on the balance of probability that the requirements of the business for employees to carry out work of a particular kind (namely Clinical Negligence legal work) had diminished and were expected to cease in February 2022, which is one of the definitions of redundancy in section 139(1)(b) of the Employment Rights Act 1996. The claimant did not dispute the reduction in work or that the majority of the twenty-eight files were transferred to other firms. Four were settled by Ms Minton, and some were discontinued. We find that by the time that the claimant was dismissed, there was virtually no Clinical Negligence work for her (or anyone else) to do. Fairness of Dismissal[138]We find that the dismissal of the claimant was fair for the following reasons:138.1 In paragraph 15 of his closing submissions, Mr Ward noted that there was no evidence of a contract or agreement to sell the Clinical Negligence work or any effort to transfer the claimant to the firm that took most of the files under The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). As we indicated to Mr Ward at the end of his closing submissions:138.1.1 There was no claim for a breach of TUPE before this Tribunal. We heard and saw no evidence that would enable us to make any findings on the point;138.1.2 There was no application to amend the claim to include a claim for breach of TUPE;138.1.3 The unchallenged evidence of Mrs Rotheram was that the respondent had attempted to sell the remaining Clinical Negligence files to two other law firms but neither deal materialised. If such a deal had materialised, it is possible that the claimant would have TUPE’d across to the firm that took on the files;138.1.4 In the end, the files were mostly transferred to the firm to which the former HoD, Mr Conway, had gone, although other files had gone to several other firms. We find that the evidence of the respondent that the only formal 37 of 58 documentation it received from the receiving firms was a lien on the file in respect of the respondent’s legal costs;138.1.5 The transfer of files had been on receipt of signed authorities from the clients; and138.1.6 We took judicial notice that in the circumstances, there would have been no contract between the respondent and the receiving firms in respect of the files.138.2 The claimant, Associate Partner, and Lauren Collins, Medico-Legal Advisor, were made redundant from the Clinical Negligence department. Emily Minton was offered an alternative role as a Solicitor in the Family department without being interviewed.138.3 The respondent’s unchallenged evidence was that it disposed of its entire Clinical Negligence caseload and stopped doing the work.[139]We find that parts of the respondent’s process in the redundancy around the issues of who were required to attend interviews, what roles were on offer or were being interviewed for, and what was said about retraining were shambolic, but do not find that the procedure taken in the round was a sham. We reject Mr Ward’s closing submissions to the contrary in paragraph 13 of his closing arguments for the following reasons and findings:139.1 We find that the decision to close the Clinical Negligence department was made on 10 February 2022.139.2 We do not find that the respondent determined that the claimant and her colleagues in the department were condemned to redundancy at the time that the decision to close the department was made because a final decision had not been made. There were options open to the respondent to sell the work or reorganise the department without making redundancies. If the work was sold, there would have been a possibility of a TUPE transfer.139.3 We do not find it unreasonable that the respondent sought to sell the Clinical Negligence files to one of several potential purchaser practices, as a sale of all the files to a single practice may have saved some jobs through TUPE.139.4 We find that the negotiations were long and arduous, but ultimately unsuccessful.139.5 The three members of staff affected by potential redundancy were notified of a group redundancy consultation meeting and provided with an at-risk letter [166-168 HB] and redundancy calculation [169 HB] on 8 July 2022.139.6 On 11 July 2022, the claimant was sent details of a one-to-one meeting on 13 July 2022 to discuss alternative roles and policy documents [176-180 HB]. 38 of 58139.7 The group consultation meeting took place by video on 12 July 2022.139.8 On 13 July 2022, the claimant sent her alternatives to the proposal to close the department to the respondent [193-196 HB].139.9 The claimant met with Charlotte Woolven-Brown, a partner in the respondent on 13 July 2022. The claimant was accompanied by her husband. She advised Ms Woolven-Brown that she had sent in her alternative proposals for the department and said she was interested in the alternative roles of Solicitor in the Family department or Solicitor in the Private Client department. The meeting was adjourned so the respondent could consider the claimant’s alternatives to redundancy.139.10 Ms Woolven-Brown wrote to the claimant on 29 July 2022 [199-201 HB] with the response to the claimant’s proposals. The respondent rejected the alternative business strategy that the claimant had proposed. It is not the Tribunal’s job to go behind the commercial decision made by the respondent. We would comment, however, that we found no obvious logical fault in the respondent’s reasoning.139.11 Ms Woolven-Brown also addressed the claimant’s request to be considered for Solicitor roles in the Family and Private Client departments. The claimant was informed that the level of role that the respondent could offer in Family was dependent on her working knowledge of Family Law and the associated Legal Aid rules. The claimant was told that “…doing a module on the LPC many years ago is unlikely to provide you with sufficient knowledge. We would be happy to retrain you but to do that we would need an initial period where you worked as a paralegal before we could release you to conduct files of your own.”139.12 As far as the Private Client role was concerned, Ms Woolven-Brown told the claimant that as she had no previous experience of Private Client work, “…we would have to put you through an extensive period of retraining. Before we commit to that, we would need to know that were committed to remaining in the role long term.”139.13 Ms Woolven Brown also indicated to the claimant that the respondent was happy to allow the claimant to remain off work on full pay as “additional leave” and added the comment that the additional leave would “…allow you space to consider whether a change in legal career is something you want to pursue.” [201 HB]139.14 The claimant was also told that she was due to be made redundant on 3 August 2022, but that the date of redundancy would be extended if she took the opportunity to apply for the roles in Family and Private Client.139.15 The full-time salary for a Family Solicitor was stated to be £40,000 pa. The full-time salary for a Family Paralegal was stated to be £23,000 pa. The full-time salary for a Private Client Solicitor was stated to be 39 of 58 £30,000 pa. The claimant was earning £44,415 pa as an Associate Partner on a .747 FTE equivalent working week (28 hours per week when the respondent’s full-time working week was 37.5 hours in Clinical Negligence). The claimant’s full-time equivalent salary was £59,484.00 pa in Clinical Negligence.139.16 We find that the claimant has misunderstood how section 138 of the Employment Rights Act 1996 works. Her case is that she was entitled to a four-week trial period in one of the roles in which she was interested. That is not correct. Section 138 means that if someone’s employment is terminated or is due to be terminated and that she is then re-engaged or her contract is renewed, she has a four week period after the new contract or re-engagement happens as a trial period, at the end of which, she is entitled to continue in the role, or decide that it is not for her and effectively opt for the terms she was entitled to on the termination of her previous post. In practical terms, this means that she could collect her redundancy and notice entitlements.139.17 The unambiguous evidence in this case is that the claimant’s contract of employment was ultimately terminated on 9 September 2022 and that she was not offered re-engagement or a contract renewal.139.18 The requirement of Williams v Compare Maxim (see above), is that an employer makes reasonable efforts to identify suitable alternative employment for an employee at risk of redundancy.139.19 We find that, given the claimant’s lack of knowledge and practical experience in the areas of Family Law and Private Client Law, it was entirely reasonable for the respondent to require her to interview for the positions.139.20 We find that the evidence did not show that the respondent had acted unfairly or unlawfully by failing to appoint the claimant to any of the Solicitor or Paralegal roles that she interviewed for. We make that finding because:139.20.1 There was nothing in the claimant’s CV [217-220 HB] or career history in 2022 that suggested she had knowledge or experience of Private Client law or practice.139.20.2 We therefore find that the claimant could have no reasonable expectation of being appointed to the role of Solicitor in that department, as very few of her skills were transferable from her Clinical Negligence practice that she had followed for more than 20 years.139.20.3 We find that the claimant agreed with Jane Morel, HoD for Private Client that she was not a good match for the Private Client role. 40 of 58139.20.4 We find that it is likely to have taken the claimant 12 months or more to be a functioning Private Client Solicitor.139.20.5 We find that Mrs Rotheram’s unchallenged evidence was that the role was at the respondent’s Grays office and was unsupervised.139.20.6 We find that the claimant’s qualification for the Family roles was based on:139.20.6.1 A Family Law module in her LPC course in the late 1990s; and139.20.6.2 Two short periods as an Outdoor Clerk and Legal Assistant in 1996 and 1999.139.20.7 The claimant had not practised family law in over 20 years and had developed a specialist in Clinical Negligence.139.20.8 We accepted the unchallenged evidence of Ms Kokkinos, the respondent’s Head of Family department, that the nature of Family Law and the corresponding Legal Aid provisions had changed beyond recognition since the turn of the century. We find that in July 2022, the claimant had no practical skills in Family Law or related Legal Aid matters. We do not find it unreasonable for the respondent to consider that any of the roles in Family were suitable alternatives. We find that no reasonable employer would have found the roles to be suitable.139.20.9 We find that the claimant had some transferrable skills, but not many that would be relevant to a Family Law practice. She could gain those skills, but we find that this would be a long and arduous task for her. We do not find it unreasonable for the respondent to consider that any of the roles in Family were suitable alternatives. The cut in pay for the claimant between her FTE salary of £59,484 to a Solicitor role at £40,000 and a Paralegal role at £23,00 was substantial. We find that no reasonable employer would have found the roles to be suitable alternatives.[140]We find that the respondent notified the claimant of her potential redundancy, undertook meaningful consultation with her, and made efforts to find alternative employment within its business.[141]We do not find that the Family Law roles or the role in Private Client were suitable alternative vacancies. If the claimant had been offered any of the roles and had refused them, we would not have found such refusal to have been unreasonable or that it would have disqualified her for a redundancy payment.[142]We find the dismissal to have been fair, if not flawless. Those flaws were: 41 of 58142.1 The delay in arranging the interviews. It was not clear why the interviews did not take place earlier in August 2022;142.2 Not following a formal interview process. The interviews were variously described as an informal chat and an interview, which was inconsistent;142.3 The interview with Ms Kokkinos was a mixture of formal and informal elements.142.4 If it was intended to be a formal interview, the Scenarios should have been sent to the claimant in advance of the interview to enable her to prepare; and142.5 The decision to raise the Scenario and then drop it when it became apparent that the claimant could not answer the questions was inconsistent.[143]However, the flaws in the procedure were insufficient to lead us to a finding that the dismissal was unfair. We would add, in anticipation of our findings below, that we did not find the dismissal was tainted by discrimination. Direct Race Discrimination (s. 13 Equality Act 2010)[144]The claimant self identifies as a Black British woman of Caribbean descent.[145]There was some discussion in the hearing about comments made in the respondent’s announcement of several internal promotions (including the claimant’s promotion to Associate Partner and Mrs Rotheram’s witness statement (paragraph 40 [9-10 WB])) about diversity, to which the claimant took offence.[146]We reminded ourselves of the guidance in Chapter 8 of the Equal Treatment Bench Book (May 2025 update) and shared this with the parties. At paragraphs 11 to 14, the ETBB states the following: “Many believe that the reason ethnic minorities face ongoing disadvantage in many aspects of life is primarily because of institutional/systemic racism and historical injustices; others disagree with this analysis. Institutional racism was defined in the 1999 Macpherson report as: “The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amounts to discrimination through unwitting prejudice, ignorance, thoughtlessness, and racist stereotyping which disadvantage minority ethnic people.” In 2021, the government-commissioned Sewell report came to the conclusion that, “Put simply we no longer see a Britain where the system is deliberately rigged against ethnic minorities. The impediments and disparities do exist, they are varied, and ironically very few of them are directly to do with racism. Too often ‘racism’ is the catch-all explanation and can be simply implicitly accepted rather than explicitly examined. The evidence shows that geography, family influence, socio-economic background, culture, and religion have more significant impact 42 of 58 on life chances than the existence of racism. That said, we take the reality of racism seriously and we do not deny that it is a real force in the UK.” Numerous charities and activist groups, and some politicians, have criticised the report, emphatically disagreeing with its conclusions and pointing to statistics which they believe necessarily implicate racism as the primary factor. According to race equality thinktank Runnymede Trust, “The people involved in this Commission had no interest in genuinely discussing racism, but even this Government does not go as far as to say that we are post racial. The least the Commission could have done is acknowledge the very real suffering of Black and minority ethnic communities here in the UK.” It is not the role of this Bench Book to form an opinion on the causes of any disadvantage, rather to set out differences to assist judges, and provide information to help them deal fairly with people from different ethnic minority backgrounds. As mentioned at the start, fair treatment is a fundamental principle embedded in the judicial oath and is, therefore, a vital judicial responsibility. Judges are expected to be ever vigilant to ensure decisions are not influenced by their own personal biases, beliefs, or perspectives.”[147]We do not find that any of the statements that the claimant was unhappy about could reasonably be taken to be discriminatory because if race. Dismissal[148]We find that the evidence showed facts from which we could conclude, in the absence of explanation that the claimant may have been dismissed because of her race. The facts were the claimant’s evidence plus the fact that Ms Minton, a White Solicitor in the Clinical Negligence department was dropped into a role with the Family department without an interview, whilst the claimant was not.[149]However, we find that the respondent has shown that there was not a contravention of section 13 of the Equality Act 2010. We make that finding149.1 We find that neither of the comparators named by the claimant in this claim, Ms Minton, or Ms Collins were true comparators. They were not materially the same as the claimant save for the protected characteristic. The evidence is summarised in the claimant’s own table of comparisons contained in her witness statement and in the claimant’s closing submissions.149.2 The claimant is Black, whereas Ms Minton and Ms Collins are White, which is the basis of the claimant’s comparison, however:149.2.1 The claimant was an Associate Partner with 20 years’ experience. Ms Minton was a newly qualified Solicitor and Ms Collins was a Medico-Legal Adviser who was not legally qualified;149.2.2 The claimant had very limited experience in Family Law and practice that had been gained in the 1990s, whereas Ms 43 of 58 Minton had a few years of recent experience in the respondent’s Family Law costs department and had achieved a very high mark in the LPC Family Law module just before joining the respondent. We find that the claimant’s table incorrectly recorded Ms Minton’s experience;149.2.3 The claimant was paid £59,454 pa (FTE), whereas the comparators were paid £36,000 (Ms Minton) and £30,000 (Ms Collins).149.2.4 Ms Collins had no Family Law experience. She had no legal or specific Family Law experience. We find that she was made aware of the Paralegal role in the Family department, but it was agreed that she would not be suitable for such a role, and it was not offered. She was made redundant.149.3 In the alternative, the claimant relied on a hypothetical comparator. We find that the claimant did not switch the burden of proof in respect of a hypothetical comparator because she did not bring evidence of how a hypothetical comparator (a Clinical Negligence Associate Partner with more than 20 years’ experience in that specialism, whose department was closing and who had done an LPC module and had done a few months of paralegal-type work in the 1990s) would have been treated differently.149.4 Further, we found the evidence of the respondent’s witnesses about the claimant was that she was well-liked and popular in the firm.149.5 We find that it dilutes the strength of her race discrimination claim (and her other claims) that the claimant also alleges that her dismissal was unfair under the Employment Rights Act; and/or because she was a part-time worker; and/or because she did protected acts; and/or she was disabled. The scatter-gun approach leaves the Tribunal with the impression that the claimant did not have compelling evidence to show an unlawful reason for her dismissal, so made multiple claims in the hope that one of them stuck. Alternative Role[150]We repeat our findings above about the switching of the burden of proof and direct comparators and hypothetical comparators.[151]We find that the claimant had a genuine and understandable grievance about Ms Minton being given a Family Law Solicitor role whilst she was denied even a Paralegal role. However, we find that Ms Minton was not a true comparator.[152]We find that Ms Collins was not offered a role in the Family department. We repeat our finding above find that she was made aware of a Paralegal role in Family but as she had no relevant knowledge or training, it was agreed that she would not fit the role. Her assertion in her email to the claimant was successfully rebutted by the respondent’s evidence. We prefer the respondent’s evidence as it was given live and was internally credible and consistent with the documents 44 of 58 and circumstances. Ms Collins was made redundant as she was not a suitable candidate for the Paralegal role, which was not a suitable alternative.[153]We find that the respondent has shown clearly that the reason that it did not offer the claimant a role in Private Client or Family was that her legal training in the former was non-existent and her legal training on the latter was more than 20 years out of date, and her experience in Private Client was also non-existent and her experience in Family was a period of few months more than 20 years earlier.[154]Ms Kokkinos was the expert in Family Law before us, and we accept her evidence that the claimant would not have been able to function as a Family Law Solicitor for a period of at least 12 months that would have made her employment in the department unfeasible. We also accept Ms Kokkinos’ evidence that it would be months before the claimant would be ready to work unsupervised as a Family Law Paralegal. We also accept from Ms Kokkinos’ evidence and the transcript of the interview that the claimant appeared to have done little research or preparation for the interview.[155]We would criticise the respondent, however, for failing to let the claimant have the Scenario that Ms Kokkinos started to question her on in the interview in advance of the interview itself, so she could prepare. We took into account that the claimant would have been nervous at the interview and had recently recovered from mental illness. That criticism is not enough to swing the claim in favour of the claimant, however, and we repeat our findings about her suitability for the role made above. We acknowledge that the entire process must have been stressful for the claimant, especially as she had a concurrent grievance ongoing. Indirect Sex Discrimination (s.19 Equality Act 2010)[156]This claim is that the bonus scheme introduced by the respondent in 2017 was an act of indirect sex discrimination because it adversely affected part-time workers to a greater extent than full-time workers and that women were more likely to be parttime because of childcare responsibilities.[157]We find that the presumption that women have more responsibility than men for childcare is still a valid one (Report of the ONS “Families and households in the UK 2022”).[158]However, we find that the premise of the claimant’s claim is based on a misunderstanding of how the bonus scheme worked. This is reflected in our finding that none of the claimant’s asserted PCPs are made out. We make that finding because:158.1 The claimant entered the 2017 bonus scheme voluntarily and received an increase in salary for agreeing to the updated terms.158.2 The scheme replaced a previous scheme that gave the claimant a 20% bonus on fees billed and paid, which exceeded her annual salary by three times. That scheme made no recognition for part-time status. 45 of 58158.3 We find that the respondent had good reason to change the scheme, as the old scheme was vulnerable to manipulation, and that it was perceived that the targets were too high to be motivating for most feeearners. The Clinical Negligence team had relatively few files. Payment of the respondent’s fees on the files generally happened at the end of the case. Some of the more complex files could generate fees of six figures. A fee-earner could game the system by loading their billing into one financial year, rather than spreading the fees over two or three years. For example, they could delay a bill until the start of a new financial year or accelerate another file, so it was billed just before the end of a financial year. We should note that there was no evidence that the claimant did this, although Mrs Rotheram gave unchallenged evidence that another fee-earner at the respondent did indulge in the practice.158.4 We accept the evidence of Mrs Rotheram about how the new scheme worked, as she was its designer and demonstrated a thorough understanding of it, which was in sharp contrast to that of the claimant and her representative.158.5 The claimant was provided with a document titled “Bonus Details” [318- 319 SB] at a meeting with Ms Rotheram and the then HoD for Clinical Negligence on 4 July 2017. A summary of the meeting was sent to the claimant by email on 4 July [17 SB]. It was explained that the bonus scheme had a provision for fee-earners who were working on big cases where fees were sporadic (such as Clinical Negligence).158.6 The 2017 scheme for fee-earners where income receipts are sporadic worked like this:158.6.1 An assessment was made of the fee-earner’s current caseload and work in progress, with particular emphasis placed on any large cases which could impact either positively or negatively on forecasted billing performance. The feeearners participated in the process of setting the anticipated fees and success rates, so had a part in setting the targets.158.6.2 A target figure was then calculated as the anticipated fees on each file in the year multiplied by the percentage chance that the claim will be successful.158.6.3 The fee-earner was credited with the proportion of recorded time that they had spent on the file. So, if there was £100,000 of time recorded on a file and fee-earner A had recorded £80,000 of it, whilst fee-earner B had recorded £20,000 of it, only £80,000 of the fees would count towards fee-earner A’s bonus.158.6.4 The fee-earner was paid a bonus of 20% of any fees recovered in the bonus year that exceed the target. 46 of 58158.7 For the first bonus year, the claimant’s target was assessed like this: File No. Likely % Budget Fees (£) Probability Settlement GRI0215/1 35,000 100% 35,000 MCG0161/2 50,000 100% 50,000 BRO1124/2 40,000 50% 20,000 MCV0010/2 30,000 65% 19,500 RAH0063/2 80,000 65% 52,000 ELL0213/2 40,000 50% 20,000 Target 196,500158.8 It was not disputed that, as part of this consultation, the claimant successfully sought amendments to her salary and sick pay provisions but accepted the bonus scheme as it was written.158.9 We find that, in relation to the first PCP contended for, the respondent did not impose a target that was always higher than the claimant’s previous 3x salary scheme. The target was set by reference to the work in progress, the anticipated settlement date and likely percentage chance that the case would succeed.158.10 Therefore, in 2020/2021, the claimant’s target was £80,000, which was far less than 3x her salary. Her target for 2021/2022 was £75,000, which was also far less than 3x her salary.158.11 We find that, in relation to the second PCP, there was no correlation between a fee-earner’s target and their working hours, as the target was a function of their caseload, its prospects of settlement and percentage chance of winning.158.12 We therefore find that the respondent did not apply the PCPs contended for and the claimant’s claim falls at the first hurdle. We note the decision of HHJ Shanks in the EAT, which was made about prospects of success. We have had the benefit of all the evidence and find that the claim fails on its facts.158.13 We would also note that whilst there was no claim that the claimant had been underpaid her bonus entitlement, an alleged underpayment was the basis of the claimant’s clams of indirect sex discrimination and detriment because of part-time status. We find that the claimant’s mathematics was at fault in the allegation that she had been 47 of 58 underpaid. The claimant based the allegations on summaries of bonus entitlement that were produced by the respondent (for example [201- 207 SB]). The figures included negative figures that referenced work done by fee-earners other than the claimant and whose work, therefore, could not count towards the claimant’s bonus.158.14 The claimant had turned the negative numbers into positive numbers so, for example, -£1,500 was turned in to +£1,500 by the claimant, a differential of £3,000 between the claimant and the respondent. Mr Ward accepted that this was his error, and we find that this error, which was repeated, was the cause of the entire alleged difference between the claimant’s bonus figures and those of the respondent. Part-time Worker Detriment (Regulation 5 - Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000) Bonus Scheme[159]It was agreed that the claimant was a part-time worker.[160]We repeat our findings above that there was no interaction between the revised 2017 bonus scheme and the claimant’s part-time status. Her part-time status was entirely neutral under the 2017 scheme because of the way that the bonus was calculated.[161]The claimant did not identify an actual comparator. There is no provision allowing a hypothetical comparator in part-time worker detriment cases (Carl v University of Sheffield [2009] IRLR, EAT).[162]This claim was misconceived and fails.[163]In respect of the claim that Ms Kokkinos said to the claimant at an interview for the role in Family on 8 September 2022 that, “…they were not fond of it [having part-time workers] before…”, we find that on balance, the words were not said by Ms Kokkinos. We make that finding because:163.1 The words do not appear in the notes of the meetings;163.2 Ms Kokkinos denied saying them;163.3 In cross-examination, the claimant agreed that the respondent’s notes were an accurate account of the meeting;163.4 The notes indicate that Ms Kokkinos said “…four days a week would be fine.”; and163.5 The claimant did not identify an actual comparator. There is no provision allowing a hypothetical comparator in part-time worker detriment cases (Carl v University of Sheffield [2009] IRLR, EAT.[164]The claim fails. 48 of 58 Disability (s.6 Equality Act 2010)[165]We find that the claimant did not meet the definition of disability following her period of ill-health absence between 5 April 2019 and July 2019. We made that finding after following the guidance in the cases of Parnaby, Morris, and All Answers Ltd, (see above) and applying it to the documents and evidence of the claimant in her impact statement. The respondent did not cross-examine the claimant on her impact statement.[166]We find that the naming of the mental illness that affected the claimant is secondary to its effects on her ability to carry out normal day-to-day activities. We find that at no time during her employment with the respondent were the claimant’s reasons for absence noted as anxiety and depression. When she was absent because of her mental health, her absence was recorded as “work-related stress” on her MED3 certificates.[167]The respondent obtained an Occupational Health (OH) Report dated 21 May 2019 [190-192 PH] that records that the claimant’s absence from 5 February to 30 June that year was a breakdown in the relationship between the clamant and her then HoD, Kathryn Turner. The opinion of the OH professional was that the claimant would be able to return to the workplace provided the working relationship issues had been addressed. The OH professional was of the opinion that the claimant did not meet the definition of disability under the Equality Act[168]The claimant was able to return to work after her grievance had been determined and there was a change in management arrangements.[169]The claimant was absent from 5 February 2019 to 30 June 2019.[170]There was no evidence presented of any absence due to mental illness from the claimant’s phased return on 16 December 2019 to the start of her second period of long absence on 7 March 2022. That absence continued until 15 July 2022.[171]Ms Turner left the respondent in April 2020. We find that the stressor was removed and that claimant’s mental illness was not likely to last for a total period of 12 months. The claimant was not absent with any mental health issue until 4 March 2022.[172]We find that the claimant did meet the definition of disability for the period starting on 4 March 2022 and continuing until the last act complained of: the rejection of her Grievance appeal on 22 December 2022 [263 SB]. We make that finding on the unchallenged evidence of the claimant in her impact statement and the fact that the stressor that caused her initial absence was added to by the risk of redundancy; her subsequent dismissal; and the issue of these proceedings. In those circumstances we find the claimant’s mental health condition was likely to last 12 months. Failure to make Reasonable Adjustments (ss.20-21 Equality Act 2010) Appointment to Family Team Without Interview 49 of 58[173]Although no PCP was set out in the List of Issues, and no reference was made to it in the claimant’s evidence or closing submissions, the PCP must be the respondent requiring the claimant to attend an interview for the Family and Private Client roles.[174]We cannot see that the claimant produced any evidence as to why this placed her at a substantial disadvantage compared to someone without the claimant’s disability. Her case was simply an assertion that she should have been placed straight into a vacant role in the Family department.[175]When she was interviewed, the claimant had been certified fit for work. We do not agree that a requirement for the claimant to be interviewed for the Family department role put her at a substantial disadvantage compared with someone who did not have a mental health condition. If the claimant was fit to work, she was fit to be interviewed.[176]This claim intersects with the claimant’s claims of unfair dismissal and other matters as it refers to the suggested adjustment of giving her a trial period in a Family team role. We repeat our findings above that it was reasonable of the respondent to assess the claimant’s suitability for the role in the Family department and that it was reasonable to conclude that she was not suitable.[177]We find that the respondent did not know or could reasonably have known that the claimant was likely to be placed at the disadvantage alleged as we find that there was no disadvantage.[178]This claim was misconceived. Requirement to Return on Full Time Hours[179]We find this claim also to be misconceived. Factually, the claimant was not required to return to work on full time hours, as she was a part-time worker. It was her request to return when she did on 18 July 2022, having given a month’s notice of her intention to return.[180]The claimant did not request a phased return at the time and was not allocated much work to do, as her department was shutting down. She was not required to attend work when she did return to work and was told that she remained on what was, effectively, paid leave. It was her choice to return to work in a department that was closing down and which had no new incoming work.[181]As there was virtually no work to return to, and no prospect of being retained as an employee unless she was appointed to a new post in Family or Private Client, we find it was not a reasonable adjustment to order an OH report in July 2022. The appropriate time to order such a report would have been if and when the claimant had secured an alternative post with the respondent, which she never did. Discrimination Arising from Disability 50 of 58[182]The claimant alleged that she was treated unfavourably because of her absence from work and that the absence arose from her disability. We should note that we have only found that the claimant was a disabled person from 4 March 2022. Failure to Provide Information[183]This claim is vague. It does not specify a date or dates and does not state what information the respondent failed to provide the claimant with, or what a “return to work plan” is or would entail. The claimant’s evidence in chief did not address the point. We could not find facts from which we could conclude, in the absence of explanation, that there could have been a breach of sections 20 and 21 of the Equality Act 2010. Change in Legal Career[184]We find that the alleged detriment is not a detriment. We make that finding because we do not accept that any reasonable person would interpret what Ms Woolven-Brown wrote in her letter to the claimant on 29 July 2022 [199-201] as anything but sensible advice. We find that the claimant had indicated that she was willing to make a complete change of specialism after more than 20 years developing a career in Clinical Negligence. She could have sought work as a Clinical Negligence Solicitor at another firm, where she would have had realistic expectations of a senior role with a remuneration package around that which she was receiving from the respondent.[185]Instead, she had indicated she was prepared to take a huge cut in salary and status by starting a new career in Family or Private Client work.[186]The claimant had just returned from a period of ill health absence that had lasted over four months, and we find it supportive of Ms Woolven-Brown to grant the claimant additional paid leave at home “…to allow you space to consider whether a change in legal career is something you want to pursue.”[187]The claimant prayed in aid an allegation that a Black former colleague who was a qualified lawyer was offered a job as a cleaner in the redundancy round that took place when the respondent closed its Personal Injury department some time before it closed its Clinical Negligence department. No direct evidence was led by the claimant on this point. We prefer Mrs Rotheram’s evidence in crossexamination that at the time of the closure of the PI department, the only job that was available in the respondent was as a cleaner. The list of available jobs was shown to those at risk. There was only one job on the list, as a Cleaner. We find that the list was shown to all those at risk (irrespective of colour) as proof of what was available, rather than an offer of a cleaning job which qualified lawyers may have found demeaning. Criticising the Claimant for Taking Annual Leave[188]This is an allegation that is said to have happened on 1 September 2022 in a letter from Mrs Young [210 HB]. 51 of 58[189]We find that there was no criticism of the claimant for taking annual leave in the letter. There was no detriment. This is an example of the claimant perceiving discrimination where there was none. Dismissing the Claimant[190]We refer to our previous findings. The reason that the claimant was dismissed was redundancy. The claimant did not show facts from which we could have concluded in the absence of explanation that the respondent had contravened the Equality Act 2010 other than her assertion. There was nothing to add to her assertion.[191]The claim fails. Failing to Transfer the Claimant[192]This is another attempt to make a different claim from the same circumstances. We repeat our findings above. In relation to a section 15 claim, the claimant did not show facts from which we could have concluded in the absence of explanation that the respondent had contravened the Equality Act 2010 other than her assertion. There was nothing to add to her assertion.[193]The claim fails. Victimisation (s. 27 Equality Act 2010) Protected Acts[194]We find that the claimant’s email to the respondent dated 30 May 2022 [303] was not a protected act as it did not meet any of the requirements of section 27 (2)(a- d) of the Equality Act 2010.[195]We find that the claimant’s grievance dated 12 July 2022 was a protected act.[196]We find that the claimant’s presentation of her ET1 in this case on 27 October 2022 was a protected act. Detriments OH Report[197]We do not find the respondent’s failure to refer the claimant to OH on or shortly after 30 May 2022 to be a detriment because the claimant did a protected act. We make that finding because:197.1 We find that there was no connection between the claimant’s protected act and the failure by the respondent to request an OH report which was requested by the claimant on 30 May 2022. The respondent’s witnesses were not challenged on the point and made no admissions.197.2 We find that the claimant’s request for an OH report to determine whether she was a disabled person was not made to assist her return 52 of 58 to work, but to provide her with evidence for a contemplated Tribunal claim. We find it unusual for the claimant to have anticipated her return to work in July 2022 in an email dated 15 June 2022 and for her then to have confirmed the date of return (18 July) in an email of 29 June 2022.197.3 We find that the respondent’s explanation for why no OH report was requested was logical and credible:197.3.1 On 15 June 2022, the claimant advised she would be returning to work in July 2022. On 29 June 2022, the claimant confirmed she would be returning on 18 July 2022;197.3.2 The respondent was contemplating selling the Clinical Negligence department’s work, or closing the department;197.3.3 The claimant was not required to attend work from 18 July 2022; and197.3.4 It was likely that her employment with the respondent would terminate, and she would not return. If she did return, that would be the time to ask for an OH report.[198]Having found that the claimant’s email of 30 July 2022 was not a protected act, there was no protected act that predated the alleged detriment. 2022 Grievance[199]We find that the respondent did not fail to investigate the claimant’s grievance of 12 July 2022 [57-65 SB] fairly. The respondent did not uphold the grievance, but we find that this was not because she did a protected act. We make these findings199.1 The respondent’s witnesses were not challenged on the point;199.2 The claimant produced no evidence other than her own assertion that the respondent investigated her grievance in the way that it did and/or failed to uphold her grievance because she did a protected act. There was no additional evidence to take into account. The claimant did not transfer the burden of proof to the respondent;199.3 We find that the respondent’s investigation of the claimant’s grievance was one that came within in a band or reasonable responses to the grievance;199.4 The claimant has no right to expect a grievance to be upheld; and199.5 On our findings above, the claimant’s grievance about her bonus entitlement were unfounded, so the outcome was, on our findings, fair. Return to Work Plan 53 of 58[200]We find that this allegation was vague and was not explained in the claimant’s evidence in chief. We assume that it refers to her return to work in July 2022. We find that no “return to work plan” was put in writing, but that the arrangements for the claimant’s return to work were clearly explained to her in an email that told the claimant that she was not required to attend work and would be given light work to do at home as the Clinical Negligence department was closing, the files were being transferred elsewhere, and Ms Minton was handling the transfers.[201]The claimant was told that she would participate in the selection interviews for jobs in Family and Private Client.[202]We therefore find that the claim has no basis in fact. Change in Legal Career[203]We repeat our findings above about Ms Woolven-Brown’s letter of 29 July 2022 [199-201 HB]. We do not find that the words “…to allow you space to consider a change in legal career is something you want to pursue” to be a detriment.[204]The claimant did not provide any evidence, other than her assertion, that the statement was made because the claimant did protected acts. Suitable Alternative Employment[205]We find that this claim also fails on the findings of facts we have made above. We have found that none of the jobs available in Family of Private Client were suitable alternative employment. We find that the concept of suitable alternative employment is a joint one between the employer and the employee. In a hypothetical example, an employee who is employed as an Electrical Fitter may think that being an Accounts Manager is suitable alternative employment, but unless they have the appropriate skills and experience, the employer is unlikely to agree.[206]We have set out above our findings as to why we consider that there were no suitable alternative jobs available at the respondent for the claimant.[207]Additionally, the claimant provided no evidence, other than her own assertion, that there was a connection between her doing protected acts and the failure of the respondent to offer her an alternative job. 2 Days’ Notice of Appeal[208]This claim fails on the facts. The claimant was given notice of her appeal against redundancy on Thursday 22 September 2022 for a meeting on Tuesday 27 September 2022.[209]We find that four days’ notice of an appeal is reasonable and not a detriment.[210]If we are wrong about that, we find that the claimant has not established facts from which we could conclude in the absence of explanation that the respondent breached section 27 of the Equality Act 2010. 54 of 58 Redundancy Appeal Hearing[211]We find this allegation fails on the facts. The claimant alleges that during the redundancy appeal on 27 September 2022, Mr Cooper, who heard the appeal, focussed on whether the claimant had obtained an independent medical report to support her assertion that she met the definition of disability.[212]The claimant made a record of the meeting [278-281 HB] that does not appear to us to be a contemporaneous note of what was said in the meeting. It is written in the past tense. We do not regard it as an accurate record of the meeting.[213]The respondent’s minutes of the meeting [260-266 HB], which appeared to last 53 minutes, were not disputed by the claimant. The question of disability is mentioned once in the meeting [263] in this exchange: “RC - …Have you any evidence that you meet s.6 EQA 2010 criteria? JCW - I am not a medical expert can only tell you from the fact, I have anxiety and depression, been on long term sick leave, consulted with my GP, been prescribed medication. As an employee did not know I had to provide a medical report. RC - I am not trying to go behind what you may or may not have. You say in your letter that you contend you are disabled. JCW - I think the focus should be given to what support given to me during…what was given.”[214]We find that the above exchange is four lines in seven pages of notes. We find that the exchange was not focussing on the claimant having an independent medical report. The claimant was not asked for an independent medical report. She was asked for evidence of disability. When she indicated that she had no evidence other than what she mentioned in the exchange, Mr Cooper moved on.[215]We find that when an employee asserts disability, it is not unreasonable for an employer to ask for evidence. We find that the conduct of Mr Cooper is not a detriment. If we are wrong about that, we find that the claimant has not established facts from which we could conclude in the absence of explanation that the respondent breached section 27 of the Equality Act 2010.[216]We also note that the claimant’s record of the meeting states “He asked me what evidence I have that I am disabled and whether I have provided a medical report.” We find that the word “independent” was not used. Redundancy Appeal - OH[217]The claimant’s claim is that Mr Cooper, during the redundancy appeal meeting on 27 September 2022, failed to address why the claimant had not been assessed by OH. This complaint must be seen in the context of the claimant’s redundancy appeal email dated 13 September 2022 [255 HB].[218]The appeal listed five grounds of appeal: 55 of 58218.1 The respondent had provided no evidence that her application for the four vacancies had been “…unsuccessful and, if so why this was the case”.218.2 The respondent had “…provided no evidence that they considered the statutory framework provided by s.138 ERA and which I was entitled to in relation to these four vacancies.”218.3 The respondent “…failed to consider in a reasonable manner whether with training and as allowed for by s.138 ERA that would have allowed me to be a suitable candidate for the four vacancies and thereby preventing my dismissal on grounds of redundancy.”218.4 That “further and without prejudice to the foregoing,” the decision to dismiss her was because of her protected act, which she identifies solely as her grievance of 12 July 2022.218.5 That in deciding to dismiss her, the claimant had failed in its duty to make reasonable adjustments as per s20-21 of the Equality Act 2010.[219]There is no mention of an OH report in the grounds of appeal.[220]We repeat our finding above that we find the respondent’s notes of the appeal to be an accurate record of the appeal meeting. The only mention of an OH report is contained in the exchange between the claimant and Mr Cooper set out above under the previous claim.[221]We find that the appeal itself did not require the respondent to explain why it had not addressed why the claimant had not been assessed by OH. We find that the Claimant did not ask the question in the redundancy appeal meeting. We therefore find that the allegation is not made out on the facts.[222]If we are wrong about that, we find that the claimant has not established facts from which we could conclude in the absence of explanation that the respondent breached section 27 of the Equality Act 2010. Dismissal[223]We repeat our previous findings about the reason for the claimant’s dismissal. We repeat that the sole reason for the claimant’s dismissal was because the Clinical Negligence department was closing and the respondent could find no alternative job for the claimant, having made reasonable efforts to do so. Redundancy Appeal Investigation and Outcome[224]The claimant’s closing submissions had no comment on any of the victimisation claims. The List of Issues alleges that the respondent failed to investigate fairly and/or uphold the claimant’s redundancy appeal.[225]In respect of the outcome of the appeal, we find that given our findings on the dismissal itself, the respondent could not be criticised for refusing the appeal. That claim therefore fails on the facts. 56 of 58[226]In respect of the investigation, the claimant gave no details of the allegation that the respondent had failed to properly investigate her appeal in her ET1 [22-23 HB] despite her Details of Claim [11-29 HB] being nineteen pages long.[227]The claimant’s witness statement (paragraphs 154-160) contained her evidence of her victimisation claim. She dealt with her redundancy appeal at paragraph 132. The claimant provided no evidence of any failings by the respondent to fairly investigate her appeal.[228]We therefore find that this claim fails on the facts. The claimant’s case at its highest does not show facts from which we could conclude without further investigation that the respondent had contravened section 27 of the Equality Act Grievance Appeal[229]The claimant’s allegation was that the respondent failed to consider the claimant’s grievance appeal thoroughly and fairly.[230]In her Details of Claim (paragraph 57 [23 HB]), the claimant made no criticism of the investigation of the grievance, although the grievance appeal had taken place at the time the document was written.[231]The claimant’s closing submissions had no comment on any of the victimisation claims.[232]The claimant’s witness statement covered the grievance appeal in one sentence (Paragraph 135): “I lodged a Grievance Appeal and the Hearing took place on 31 October 2022.”[233]There was nothing in the claimant’s witness statement about the grievance appeal in the section headed “Victimisation” (paragraphs 154-160).[234]We therefore find that this claim fails on the facts. The claimant’s case at its highest does not show facts from which we could conclude without further investigation that the respondent had contravened section 27 of the Equality Act Jurisdiction/Time[235]We find that all the claims that we have dealt with above were made in time save for the claims of part-time worker detriment and indirect sex discrimination relating to the bonus scheme that failed on the facts in any event.[236]We find that the just and equitable test in section 13 of the Equality Act 2010 and Regulation 8 of The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 apply to the claims of part-time worker detriment and indirect sex discrimination. The relevant dates are: 57 of 58236.1 The claim of part-time worker detriment arose on the inception of the new scheme in 2017. The claimant made no complaint until her grievance in 2022.236.2 The indirect sex discrimination claim relating to the bonus arose on the same date as the part-time worker claim.236.3 The claimant started early conciliation with ACAS on 25 August 2022 and obtained an ACAS early conciliation certificate dated 28 September 2022. She presented her ET1 and Attachment on 27 October 2022 [11- 29 HB]. The claimant was represented by a solicitor, Ms Grieff, at this time, who drafted the ET1 and Attachment.[237]We find that the bonus claim is a matter that has no factual or legal connection to the other claims of discrimination that the claimant makes. As we have found that none of her claims of discrimination succeed, she cannot tether these claims to later claims that were presented in time.[238]We do not find it just and equitable to extend time to allow the claims. The claimant could and should have made the claims in time.
Summary
[239]As we have dismissed all claims except the unauthorised deductions from wages claim, which was settled between the parties, there is no requirement for a remedy hearing.[240]We empathise with the situation that the claimant found herself in during 2022, but on our findings, the respondent had no choice but to close its Clinical Negligence department and her redundancy was an inevitable consequence of that. We sincerely hope she can draw a line under these events and move on with her life and career. Approved by: