Ms A Rosu v Network Rail Infrastructure Ltd: 3207924/2021 and 3200962/2022

EMPLOYMENT TRIBUNALS

Case No 3207924/2021, 3200962/2022

Between

Ms A RosuClaimant

Network Rail Infrastructure LtdRespondent

Before

Employment Judge Heath

Members

Ms J Clark

Ms A Berry

Ms A Hart for claimant

Ms R Levene for respondent

Date 10 April 2023

JUDGMENT

[1]The claimant was at the relevant time a disabled person for the purposes of section 6 and Schedule 1 of the Equality Act 2020.

[2]The following claims are dismissed on their withdrawal:-a. Direct discrimination in relation to recruitment of Senior Buyers roles (Issue 3.1.2 List of Issues).

b. Discrimination arising from disability in relation to recruitment of Senior Buyers roles (Issue 4.1.2 List of Issues).

c. All harassment claims (Issue 5 List of Issues).

d. Victimisation in relation to application for the role of Commercial Manager (Issue 6.2.3 List of Issues)

[3]The claimant’s remaining claims of direct discrimination, discrimination arising from disability and victimisation are not well-founded and are dismissed.

REASONS

[1]This matter was listed for a final hearing at a Case Management Preliminary Hearing before Employment Judge Green on 12 August 2022. In essence, the claimant alleges that she was a disabled person for the purposes of the Equality Act 2010 (“EA”) (not conceded by the respondent) by virtue of back injuries sustained during a road traffic accident. The claims which the tribunal determined were ones of:a. Direct discrimination and discrimination arising from disability in relation to the ending and non-extension of a secondment. For her direct discrimination claim the claimant additionally, and in the alternative, relies on discrimination by perception of her disability; and

b. Victimisation in the form of certain remarks made by a manager and failing to pursue what was known as a “soft launch” secondment into a particular role following a grievance in which she alleged disability discrimination.

[2]During the course of the hearing the claimant helpfully conceded that she would not be pursuing certain of her claims and withdrew them. This left the following issues which the tribunal determined.a. Whether the claimant was a disabled person for the purposes of the EA?

b. Whether the respondent had directly discriminated against the claimant by ending the claimant’s secondment into the role of Senior Buyer and/or not extending her secondment into the role of Senior Buyer beyond 13 October 2021;

c. Whether the respondent treated the claimant unfavourably by ending the claimant’s secondment into the role of Senior Buyer and/or not extending her secondment into the role of Senior Buyer beyond 13 October 2021 because of certain things said to arise in consequence of her disability, namely: i. Her sickness absence following a car accident; and/or ii. Her having required and undergone a phased return to work; and/or iii. The likely recovery period required because of the injuries sustained in a car accident.

d. Whether such treatment a proportionate means of achieving a legitimate aim.

e. Whether the claimant did a protected act by submitting a grievance on 4 October 2021?

f. Whether the respondent subjected the claimants to a detriment by: i. Mr Holmes making certain comments on 11 October 2021 in relation to the grievance; ii. Mr Holmes deciding not to pursue a “soft launch” secondment into the role of Commercial Manager.

g. Whether this was because the claimant did a protected act, all but the respondent believed she had done or might do a protected act?

h. Whether the respondent had taken all reasonable steps to prevent employees from doing the discriminatory act or doing anything of that description.

[3]The full list of issues, including those withdrawn by the claimant, is annexed to these Reasons.

Procedure

[4]The final hearing was held remotely by CVP, albeit with the claimant attending the Tribunal Hearing Centre with Ms Hart and making use of tribunal facilities to access the video hearing from a tribunal room. At the start of the hearing Ms Hart requested that the claimant be permitted to stand up and walk around from time to time in order to manage her back pain, and also indicated that the claimant may need more breaks than usual. The tribunal was happy to make these adjustments/accommodations and made it clear that the claimant should ask for a break at any time if she felt herself in difficulty.

[5]On the morning of the second day of the hearing the tribunal took a 10 minute break. At the end of this break must Hart told us that the claimant was in some pain and distress and was lying down in a waiting room. Ms Hart made it clear that although there was some pressure to get through the hearing within the allotted time, this must not be at the expense of taking breaks. Ms Hart also was concerned that the claimant (whose first language is not English) may be struggling to respond to what she described as “relentless” questioning, possibly because of language difficulties or because of her pain. Ms Levene offered to slow down her questioning. We also gave the claimant more time to manage her pain. The pace of the claimant’s cross-examination slowed somewhat after this point. The claimant and Ms Hart did not indicate any further difficulties requiring adjustments for the rest of the hearing.

[6]We were provided with a 932 page bundle. On 17 February 2023 we were provided with some additional disclosure, which, after discussion between counsel, we were not asked to read. The tribunal heard live evidence from the following witnesses, who provided witness statements: For the claimanta. The claimant;

b. Ms D Vercedea (Commercial Manager); For the respondent

c. Ms G Kaur (Head of Sourcing (Eastern Region));

d. Mr M Holmes (retired Senior Commercial Manager);

e. Mr J Ward (Senior Programme Development Manager);

f. Ms J Parkes (Human Resources Business Partner).

[7]Mr C Bodych provided a witness statement for the respondent and was due to give evidence. Following the withdrawal by the claimant of one of her claims, Ms Hart indicated she did not seek to cross-examine him and he was not called to give evidence.

[8]The evidence was completed within the three-day window and both counsel produced written submissions and made oral closing submissions. The tribunal reserved its decision. Unfortunately, the tribunal was unable to deliberate in chambers as soon as would have been hoped.

The facts

[9]The respondent is a company which operates and maintains Britain’s rail network and infrastructure. The claimant started employment with the respondent on 8 October 2018, initially as a Buyer (band 5) in the Pre-– Contract Service Team of Eastern Region Commercial Services (this team is also referred to as the “Pre-Contract Services Team” or the “Procurement Team”).

[10]The respondent has policies in respect of secondments and recruitment. Relevantly, for the purposes of this hearing, its Recruitment and Selection policy provides as follows:a. At paragraph 4.1 “All permanent and fixed term contract vacancies will be advertised internally for a minimum of 14 calendar days…”

b. At paragraph 4.6 “All secondments over 6 months in duration, or initial secondments under 6 months that are subsequently extended to the period over 6 months, must be advertised on the internal vacancy list for 14 calendar days. Where a secondment has the potential to become a permanent role this should be made clear in the initial advert. There will then be no requirement to readvertise at a later stage – providing the succumbed it employee accepts the permanent placement”.

[11]A secondment for six months or under therefore does not have to be advertised and opened up to a formal recruitment process. This type of secondment was sometimes referred to as a “development secondment” or in one instance as a “soft landing”.

[12]An Internal Secondment Position Statement – April 2016 defines a secondment as “the planned temporary transfer of an employee to another role within Network Rail lasting for a minimum of 6 months up to a maximum of 12 months. Duration will be determined by the reason for the secondment”. This document sets out the purpose of secondment which is the benefit both the employer and employee. Reasons for secondment could include helping fulfil a business need, employee development, broadening an employee’s organisational and business knowledge and experience, and helping an employee fulfil their personal development needs.

[13]The Position Statement sets out that “A secondment is a temporary transfer and the secondee will normally have the right of return to their substantial position”. It further sets out “Where the secondment has the potential to become a permanent role this should be made clear in the initial advert. There will then be no requirement to readvertise at a later stage – providing the succumbed it employee accepts the permanent placement”.

[14]Ms Parkes, a Human Resources Business Partner, gave evidence that the length and type of secondment comes down to business need at the time. She told us, and we accept, that extensions to secondments were extremely rare and that she could “count on the fingers of one hand” number of secondments she has been asked to extend. Reasons for this might involve, for example, long-term sickness in key safety roles or where there was a live recruitment exercise for the role in question which might finish shortly.

[15]On 2 September 2020 the claimant was offered a six-month secondment to the position of Commercial Manager reporting to Ms Simane, which she accepted. She therefore left the Procurement Team. Ms Simane (as she was later to tell a manager investigating a subsequent grievance of the claimants) had initially looked to recruit to a permanent position which the claimant applied for. After some discussion, it was agreed that the claimant would take up the position as a six-month secondment. It was made clear to her that she would have to reapply for the role formally to take up this role either as a further six months extended secondment or as a permanent role.

[16]On 20 January 2021 the claimant emailed Mr Falconer, Procurement Manager, who had been her line manager in the Procurement Team “to discuss my development journey”. She told him that her “next goal is to progress into a Senior Buyer role”. She followed this email up on 10 February 2021 asking Mr Falconer for an update on her “development journey and potentially returning on a SB [Senior Buyer] role”. She pointed out that she had only two months left in her current secondment and she wanted to know where she stood in order to discuss her next steps with Ms Simane.

[17]On 11 February 2021 Mr Falconer replied saying that he had spoken to his manager, Ms Kaur, Head of Sourcing (Eastern Region), regarding a potential secondment in the team. There was one role which had not been recruited into and it was hoped that this could be used for a secondment, “however this is subject to HR”. Mr Falconer promised to get back to the claimant after Ms Kaur had a meeting with HR the following Monday to discuss recruitment.

[18]Ms Kaur had taken up her role with the respondent in January 2021. She managed 20 to 25 people and had four direct reports. As she was new in her role, she was reliant on HR advice on issues such as recruitment, and she regularly sought advice and information from them.

[19]Later, on 11 February 2021 the claimant responded to Mr Falconer. She said she did not have the time for him “to play kindergarten with me” as he had done in the past when she had asked previously for secondment. She said that Ms Simane had offered her an extension of her current secondment for another six months and she needed to decide whether to take it or not. She said she was “tired of all these lies and I’m tired of you to give chances to everyone else but me”. She accused him of dragging her down and not supporting her.

[20]Mr Falconer replied that he had spoken to Ms Kaur about the possibility of arranging a secondment for her to come back into the Procurement Team in a Band 4 role rather than her substantive Band 5 Buyer role. He went on “I am sorry I do not have the authority to give you a secondment. Guv [Ms Kaur] is speaking with HR and if this is a possibility then we will make it happen, I am also pushing to make this happen for you”.

[21]On 14 February 2021 the claimant travelled to Romania. She continued to work whilst overseas, probably contrary to work policy, but with the knowledge of her then line manager Ms Simane. She had a further telephone conversation with Mr Falconer when there were further discussions about a possible secondment into the role of Senior Buyer.

[22]It has not been easy to piece together what may or may not have been discussed between Mr Falconer and the claimant during this period. To an extent, we have had to rely on subsequent email communication where these individuals are setting out recollections and to some extent we are relying on overall likelihoods. We bear in mind how easy it is for people to create a narrative and only take in things which confirm this narrative and to screen out what does not correspond to it. This is not dishonest, but simply cognitive biases we are all subject to.

[23]We find that the likelihood is that there was discussion between the claimant and Mr Falconer about the claimant taking up a 12 month secondment. Given Mr Falconer’s earlier apology that he did not have the authority to give her a secondment and his suggestion that the decision lay with Ms Kaur in conjunction with HR, we do not find that he would have given any cast-iron guarantees of a 12 month secondment without any formal recruitment process applying. We find it likely that Mr Falconer would have been telling the claimant that he would be looking, or pushing, to get her a 12 month secondment. However, we find it easy to accept that what the claimant was taking from these conversations was that she was going to be offered a 12 month secondment.

[24]On 2 March 2021 Mr Falconer emailed the claimant about a Chartered Institute of Procurement Supply professional qualification assessment. In passing wrote “also I spoke with Guv and we have a meeting with HR to confirm a 12 month secondment option”. Again, it is easy to understand how the claimant may have understood that a 12-month secondment was about to be offered.

[25]Mr Falconer around this time discussed with Ms Kaur the possibility of seconding the claimant into a Senior Buyer role. Mr Falconer queried whether it would be possible for there to be a 12-month secondment. At this point Ms Kaur was still heavily reliant on HR for assistance with policy and procedure and any decision in this regard would need to involve them.

[26]On 5 March 2021 the claimant sent a stand-alone email (i.e. not in reply to an earlier email) saying “As per our discussion today, please take this email as my acceptance for the 12 months Senior Buyer secondment”.

[27]On 10 March 2021 the claimant was involved in a car accident in Romania. She suffered a head contusion and a spine fracture (wall compression of the T6 vertebra). She was told she did not need surgery but would need to be in a metal brace to keep her spine straight to allow it to heal. She was prescribed painkillers and anti-inflammatory medication and initially told not to move or get out of bed.

[28]The claimant discharged herself after two days and went to stay in her parents’ house. She was told to be immobilised in bed with a Hessing brace for six weeks and to have a follow-up appointment with an orthopaedic specialist. She was prescribed various medication. The translation of the discharge summary stated: “the evolution is favorable”.

[29]The claimant was examined in Romania and translated medical letters were in the bundle. These include:a. A doctor’s letter of 15 March 2021 which recommends bedrest for 5/6 weeks and the wearing of a Hessing corset for six weeks.

b. A record of a CT Exam notes, among other things “Mild anterior wall compression of the T6 vertebral body (16 mm).”

c. A doctor’s letter dated 26 April 2021 notes “The patient accuses diminishing pain in the area of the fracture. Mobilisation in orthostatic position is possible with a Hessing corset. Recommendations: physiotherapy, orthopaedic re-evaluation following recovery, within 30 days”.

d. A doctor’s letter of 24 May 2021 mentions (presumably reported by the claimant) “Frequent back pain”. Kinesiotherapy, physiotherapy and therapeutic massage were recommended. There were no neurological signs upon consultation. A “favourable evolution” was indicated.

e. A doctor’s letter of 6 June 2021 notes (presumably reported by claimant) “Cannot stand in a seated position for more than 1 hour”. Medical leave was not indicated and there were no recommendations for home or palliative medical care or medical devices. A letter the following day recommended avoiding physical effort, avoiding coldness and dampness and to have regular consultation.

f. A CT exam result dated 2 July 2021 noted a compression of the L-1 vertebral body, among other things. A medical letter dated 9 July 2021 noted “pain with functional impotency, pain in the area of T6 and L1 L2”. It recommended electro stimulation therapy sessions, laser therapy and magnet therapy and kinesiotherapy.

g. A letter dated 23 July 2021 noted the claimant could not sit down for more than two hours. An undated report noted pain after two hours in a seated position but noted a “slow, favourable evolution”.

h. A radiology letter from an examination on 3 September 2021 concluded “minimal disc protrusion between L5-S1, non-compressive, due to disc degeneration”.

[30]From 15 March 2021 the claimant was answering some work emails. She also undertook an online assessment for a professional qualification at some point in the spring of 2021.

[31]On or around 17 March 2021 Ms Kaur and Ms Parkes had a meeting at which a proposal to second the claimant into the Senior Buyer role was discussed. There was a business need for this resource. Ms Parkes advised Ms Kaur of the requirements of the policy whereby a 12-month secondment would only be possible if the role was advertised and a selection process followed. There would be no need for an advert in a selection process if a development secondment of 6 months was offered. At this stage neither had knowledge of the claimant’s road traffic accident. Both were keen to offer the claimant a development secondment without the need for adverts or formal process, and this approach was decided upon.

[32]On 19 March 2021 Ms Parkes emailed Ms Kaur and Mr Falconer to say that she had submitted the staff change for the claimant secondment to the Senior Buyer role, which would start when her current secondment ended. An offer letter was attached for Mr Falconer to sign and send. The letter read: Confirmation of Secondment I am pleased to confirm your secondment to the role of Senior Buyer reporting to me. Your secondment will start on 13th April 2021 and will end on 13th October 2021. A HQ special allowance of £10,681 will be paid to you per annum, pro rata for the duration of your secondment. All existing terms and conditions will remain the same. At the end of the secondment you will return to your substantive position. I would like to take the opportunity to wish you success in your secondment and should you have any queries please do not hesitate to contact me.

[33]Mr Falconer emailed the claimant the confirmation of secondment letter on 22 March 2021 saying that it was great to have her back in the team. The claimant responded later that day saying “This is wrong! We agreed for 12 months. Also the offer letter does not look as official as the one I received for the CM role. Can you check with HR? I don’t want to have issues again like I had in my buyer role!”

[34]Later on 22 March 2021 the claimant emailed Mr Falconer which included “We agreed on 12 month secondment, not 6. And why the letter is informal and comes from you instead of receiving a formal offer letter from HR as I received for the other secondment and as every other employee received within NR?” Mr Falconer responded: “I have spoke with Guv and the reason the secondment is 6 months is due to the process, we requested the 12 months but for a 12 month secondment we would have to advertise an interview”.

[35]On 23 March 2021 the claimant emailed Mr Falconer querying why she was only getting a six month secondment and not 12 month one as agreed, and asking why he had not contacted her before sending the letter. She made other observations about the format of the letter and about feeling unfairly treated. Mr Falconer responded on 24 March 2021 “Apologies that’s my fault, Guv and I thought it would be better to offer the 6 months and not advertise. I should have called before sending the letter. The letter has been generated from HR and sent it to me to issue, I will go back to HR and get them to issue directly if you prefer?” The claimant replied indicating her disappointment about a promise not being honoured and poor communication.

[36]In her witness statement the claimant says that she spoke to Mr Falconer on the telephone on 23 March 2021, and that he “assured her” that a 12 month secondment “will be honoured” and that he “guaranteed” a six month extension to it. We do not find that any such assurance or guarantees were made by Mr Falconer. Such do not correspond with what he was saying in his emails around this time, and had he made such guarantees and assurances we are sure that they would have been reflected back in in the claimant’s emails. They were not.

[37]On 13 April 2021 the claimant’s secondment to the position of Commercial Manager ended and her secondment to the position of Senior Buyer started. However, the claimant was still off sick during this time. A decision was taken that Ms Simane would remain the claimant’s manager and main point of contact during her sickness absence. The claimant was not advised by anyone that her secondment to the Senior Buyer role would not start until she returned from her sick leave.

[38]Also, on 13 April 2021 Mr Massingham was offered the permanent role of Senior Buyer based in Stratford. Previously a 12-month secondment to a Senior Buyer role starting 13 January 2020 had been advertised. Applications were invited, but it was stated that a preferred candidate was under consideration for this vacancy who has been identified in a succession planning process. It was clearly stated in the advert that “This contract has the potential to become permanent”. Mr Massingham had undertaken this role on secondment, and had subsequently been offered the permanent position.

[39]On 19 April 2021 the claimant emailed a colleague to say that she was “healing well and I’m no longer in pain”. She said she had been immobilised in bed for six weeks and had her scan soon to find out whether she still needed to be in bed or could start in physio.

[40]On 27 April 2021 the claimant had a Microsoft Teams call with Ms Parkes. What prompted this was that Ms Simane had had a discussion with her manager, Mr Constantine, who said that he was unhappy that the claimant had travelled abroad during Covid, while he was unable to, and felt she should not be on secondment. Ms Simane had told the claimant this and she became very upset and worried, feeling that she was being bullied and discriminated against. Ms Parkes took the decision to call the claimant unofficially to ensure her welfare.

[41]Ms Parkes’s conversation with the claimant is summarised in an HR log wrongly dated 29 April 2021. This log sets out the claimant’s hurt and upset at the comments, and her worry about her financial situation if she does not retain her secondment allowance. The claimant said that she felt restless as she was not allowed to work, and Ms Parkes suggested the claimant could work on professional development as long as it did not negatively affect her. Ms Parkes advised strongly that the claimant call what we assume was an outsourced employee assistance programme. The claimant was satisfied with her welfare manager and the support she got, but was expecting more sympathy from certain quarters. The claimant’s worry about retaining her secondment allowance supports the fact that she was not told that her secondment would only start when she returned from sick leave.

[42]During this Teams conversation the claimant was standing up in the living room. We find that she was distressed and emotional during the course of the conversation. While we accept Ms Parkes’s evidence that the claimant was not visibly in pain, we consider that a video conversation might not provide the best viewpoint to establish this. Also, pain is manifested in a variety of ways, or not at all. That said, the claimant’s disability impact statement suggests she was not able to lift a glass of water, and needed to be lifted out of bed and taken to the toilet or fed. She said that she could not lift her head and needed help to be washed, changed, dressed and given other assistance. She said she was crying in pain most of the time. We can accept that the disability impact statement suggested a level of infirmity which Ms Parkes finds difficult to reconcile with what she saw on the video screen.

[43]On 17 May 2021 Mr Mendrek was offered the role of Senior Buyer based in York. Mr Mendrek was appointed after a formal recruitment process that was advertised internally in April 2021. This was at a time when the claimant was logging on to the work system and this advert would potentially have been accessible by her.

[44]An HR log of a conversation on 16 July 2021 suggests that the claimant confirmed to HR professional that she was “still in “minor pain””.

[45]From August 2021 the Pre-Contract Services Team came under some sort of review. In Ms Kaur’s witness statement, she refers to it as a “wholesale team structure review”. While we find this probably overstates what was going on, we are satisfied that the team’s budget, headcount and structure were under scrutiny to ensure that the team was operating as efficiently and effectively as possible. The claimant submits that there are no documents supporting the existence of this review. No formal consultation documents were in the bundle, if such exist, but there were references to the review in a number of documents which lead us to the conclusion that the team was in fact under review.

[46]There is evidence of an Outlook invitation to a meeting entitled “Structure of Procurement and Post Contract Teams – Ken & Guv”. Ms Kaur made reference to discussions about the team structure and about the structure being under review during her interview by Mr Ward as part of the claimant’s grievance investigation. We find it unlikely that the claimant would refer to a non-existent review to a senior manager within the organisation. Additionally, later correspondence (referred to below) between Ms Kaur and Ms Parkes strongly suggest that decisions were being taken within the context of scrutiny of the team’s structure, budget and headcount.

[47]The nature of the review of the Pre-Contract Services Team was that it would be a top-down review stop this meant that Ms Kaur only involved the layer of management below herself. The claimant and her peers, and those at lower grades within the structure, were not informed that there was any scrutiny of the team.

[48]On 9 August 2021 the respondent confirmed the recruitment of Mr Dunlop, an independent contractor, into the post of Senior Buyer.

[49]On 13 September 2021 the claimant returned to work from sickness absence on a phased basis. At this point she was working from home. Ms Kaur welcomed the claimant back to work in a Teams message and urged her to take things easily and slowly.

[50]On 13 September 2021 the claimant attended a telephone appointment with Occupational Health (“OH”). A report was prepared which was not sent to the respondent until 24 September 2021. Ms Kaur did not see this report until sometime in October 2021. This report briefly set out details of the accident, injuries and treatment the claimant received. It noted the claimant told the practitioner she was unable to move for three months, but that her rehabilitation and pain medication which she takes as needed has aided her recovery. At the assessment the claimant reported residual pain, and pins and needles in her left foot. In the practitioner’s view, the claimant was fit for work, but would benefit from a DSE assessment, regular stretch breaks and a phased return to work to facilitate her recovery and sustained time at work. She proposed a phased return to work in which the claimant worked four hours per shift during the first few weeks, five hours per shift in the third week, six hours per shift in the fourth week, returning to full-time working in the fifth week subject to the progress the claimant may’s and as agreed by management and employee.

[51]Under the heading “Current Outlook” the OH practitioner said: “Miss Rosu sustained severe injuries from her accident. It is difficult to ascertain a detailed current outlook, as she may be prone to back pains in the future. Should she have flare ups, there will be the possibility of further absence from work. With continued improvement, I anticipate Miss Rosu, will have a satisfactory recovery.”

[52]Under the heading “Disability Advice”, the practitioner wrote: “My interpretation of the relevant UK legislation is that Miss Andra Rosu's spinal injury is unlikely to be considered a disability because it: - has not lasted longer than 12 months nor is likely to last longer than 12 months - is not having a significant impact on her ability to undertake her normal daily activities.”

[53]On 15 September 2021 at 8.39am Ms Kaur emailed Ms Parkes with a couple of queries concerning the claimant, which she thought might crop up at a return to work meeting to be held with the claimant that afternoon: “1. 1. When the secondment ends in October, would she revert back to her substantive role as a Band 5 in my team? 2. 2. If so, would that leave me with a Band 4 vacancy against UPN A29778 which I could then advertise?”

[54]A few minutes later Ms Parkes replied: “Yes, she will revert to her Band 5 role when the secondment ends, and yes it’s always better to have someone permanently in a role than plug gaps with secondments where headcount constraints will allow. That being said, I still haven’t had a response from Stuart. If the questions is asked today, I think we will have to be honest and say it is under review with finance and we wouldn’t be creating or filling those posts until signed off.”

[55]A couple of minutes later Ms Kaur wrote: “Thanks Jo no probs we can say that. Sorry but I’m still not clear on UPN A29778 which is a Band 4 that Andra is currently in – I didn’t think I had this head in my headcount so if she goes back to Band 5 I’m wondering whether I can recruit into the then vacant Band 4 and would this be an additional head? If so I wouldn’t recruit into it.”

[56]Ms Parkes replied a couple of minutes later: “Yes, if she’s an existing head within your team and you filled the role externally or with NWR employee outside the existing team then that would be +1”.

[57]This exchange is strongly suggestive of a context where the structure and headcount of the team is under review and Ms Kaur wishes to seek advice on what constraints might exist. Ms Kaur appears to be operating from the starting point in her understanding that the secondment will end on its due date.

[58]On 15 September 2021 Mr Falconer held a return to work interview with the claimant. He set out his notes about the content of this meeting in an email that day to Mr Boumpoulis, Human Resources Business Partner. The email included the following:• “Anticipated recovery time is 2 years to full recovery. The doctor has advised for the first year she is not to lift more than 2kg.

• Traveling to OSP is circa a 50min journey with a laptop, which at the current time is unfeasible for Andra. She has requested to WFH.

• Andra can only sit for a maximum of 1.5 hours, however is still in pain and depends day to day as to what the pain is.

• Andra is to have water physio each day, she is looking into times when this can be conducted and the below working pattern may need to include a longer break at points in the day to allow for this, and will then pick up the work before or after.

• DF is to provide a link to DSE so they can contact her about her chair.”

[59]Mr Falconer further pointed out in his email to Mr Boumpoulis that OH had suggested the claimant worked a maximum of four hours a day as a suggestion to be agreed between manager and employee. A work pattern was proposed on this basis, subject to the claimant being able to manage the pain and the sit for the appropriate times, which would be reviewed every two weeks building up slowly. Additionally, Mr Falconer wrote “Secondment Issue: Andra has requested an extension to the secondment. She was told by Jo that her secondment wouldn’t start until she returns from sick. I understand there was an issue with [Mr Contantine] regarding him removing the secondment and this was when the above statement was made. How do we get clarity on this as there is nothing in writing”.

[60]Mr Boumpoulis replied on 16 September 2021 on the secondment issue he wrote “I spoke to [Ms Parkes] and she confirmed that she didn’t say what the colleague claims. Decisions around secondments are for management to make, depending on business needs. If you need this role to be filled past the end of the secondment, you will have to advertise and go through a competitive process as others might be interested. My understanding is that the colleague was not disadvantaged in any way while off sick and was paid the salary for the secondment; what happens next with this role is Guv’s call depending on business needs.”

[61]We find that Ms Parkes did not tell the claimant fit her secondment would only start when she returned from sick leave, as the claimant told Mr Falconer. During her subsequent grievance investigation, the claimant in fact told Mr Ward that it was in fact another HR professional, Ms Geller, who told her that her secondment would not start until she returned from sick leave. However, this is not reflected in either the HR logs in the bundle, or the screenshots of the claimant’s Teams conversations with Ms Geller. We find that no one in HR, or for that matter the respondent organisation, gave her this information.

[62]On 22 September 2021 the claimant had a conversation with Mr Falconer which she provided a summary in an email to him on 23 September 2021. She set out her unhappiness with the entire situation concerning the secondment. Her email included assertions that it the original agreement was for 12 months but the offer letter “only 6 months were available due to new HR process with the promise of another 6 month extension”. (This is not what the offer letter promised). She said that she had been bullied on her sick leave and that HR advised her not to worry but to focus on her recovery “as my secondment will start on my return” (we have found that no such promise or assurance was made by anyone in HR).

[63]Mr Falconer replied that he agreed that at the time it was envisaged that the respondent would be able to extend the secondment to 12 months and that “you did request the 12 month originally”. He said that it had been hoped that the role could be turned into a permanent one “however this is subject to going through the necessary recruitment permissions”.

[64]On 24 September 2021 the claimant at a Teams conversation with Mr Falconer in which she asked: “do you have an update about my secondment?” Mr Falconer indicated that he had chased Ms Kaur and then later said that she had come back to him “She is waiting for HR to confirm”. The claimant asked “To confirm what? What is so difficult to confirm such a simple thing?” Mr Falconer replied: “budget and headcount still”. The claimant asked the timescales and Mr Falconer indicated he was pushing and chasing every day. The claimant was clearly frustrated with this.

[65]On 27 September 2021 at 11:11pm, Ms Kaur emailed Ms Parkes on the same email chain as they had been corresponding on on 15 September 2021. She said that she was reviving the query “as I am likely to get grilled on it this week and want to be 100% factual in my conversations with the individual” She asked whether she was right that the following were her options: “1. 1. Extend the secondment for a period of 6 months 2. 2. Advertise the role to be filled permanently (but I can only fill the role with someone within Commercial due to headcount restrictions – how would this work with advertising the role, surely we can’t restrict who can apply? And what is my team’s headcount limit?) 3. 3. Advertise the role to be filled by a secondment (would the same restriction as above apply?) 4. 4. Leave this UPN vacant – but this means I am missing a head aren’t I?”

[66]Ms Parkes full reply on 28 September 2021 is as follows: “Nobody has been able to tell me the headcount number for your specific team since we last met – all I know is that commercial as a whole is 99 FY22 target and we are currently at around 115/116 If Andra is already a “head” in your team in her substantive Band 5, I suppose it comes down to where you need the resource more, is it in the Band 4 or the Band 5 role? I think at the moment we are going to have to work on a one out/one in basis I have been asked to set up another meeting next week with Sarah Birtles, John and Stuart to look at Commercial headcount in more detail because we are being asked for recruitment but feel unable to approve anything at the moment. We can advertise internal only for either secondments or perm – we can’t restrict who applies, but before making an offer would have to review the impact on headcount position. I’m sorry I can’t be clearer, appreciate it’s really difficult at the moment”.

[67]Again, this exchange is a suggestive of a context in which the team’s headcount was under review, with pressure to reduce it, which was creating complications with recruitment decisions. The decisions about the claimant as an individual were part of this broader context.

[68]On 27 September 2021 the claimant sent a Teams invitation to Ms Kaur in which she indicated that Mr Falconer had told her that her secondment would not be extended which, she said, she had initially been offered as a 12-month secondment. She said: “I feel this is unfair and I am being discriminated for not being able to return to work full-time due to my condition”. She asked for a faceto-face chat. She sent a longer email the following day in which she expanded on complaints.

[69]Between 28 September and 30 October 2021, the claimant sent a very large number of emails to Mr Falconer. At this point in time Mr Falconer knew he was leaving the respondent organisation in October. On 29 September 2021 the claimant additionally covertly recorded a telephone conversation with Mr Falconer, the transcript of which was in the bundle.

[70]The extensive correspondence and transcript will not be set out beyond a few brief observations:a. On 28 September 2021 the claimant said Mr Falconer that he had offered her a secondment for 12 months with the promise that it would be permanent at the end of this period, to which he replied: “I said if it was advertised there would be a lot of competition as there are so many people in secondments”.

b. In the response to the claimant’s accusation that she would have stayed in the commercial manager role had she known she would only get a six month secondment Mr Falconer admitted “the 6 months compared to 12 is my fault I admit that”.

c. In an email of 30 September 2021 Mr Falconer said on the issue secondment “I agree that at the time it was envisaged that we would be able to extend your secondment to 12 months and you did request the 12 months originally. I also hope that we could also turn this into a perm role, however this is subject to going through the necessary recruitment permissions. At the time I believe we had RAF panel in place so the perm opportunity would have been subject to approval”.

d. The claimant set out her disagreement with this email on 30 September 2021. The tenor of this exchange appears to us to be an attempt to get in writing an account of what transpired in relation to the secondment.

e. Mr Falconer emailed on 1 October 2021 saying that the claimant had requested a 12-month secondment as she had a permanent offer as a CM (although this was not what Ms Simane would recall during a grievance investigation). He mentioned that he could not offer a 12-month secondment as this would have meant advertising and interviewing for the post rather than it being a development opportunity. He said a 6 month offer with the potential for an extension after six months and a permanent position was discussed. At this point, Mr Falconer said, he thought he would be able to extend the secondment contract. Any fulltime role would be subject to the need to be advertised and interviews conducted.

f. The claimants disagreed by email of 1 October 2021. She said that a six month offer plus a six month extension was not discussed with her, rather that this was something that Mr Falconer and Ms Kaur chose on her behalf. She said that Mr Falconer had never mentioned the role being subject to approval for a permanent position, though she accepted that she would have to interview for it against other applicants.

g. Mr Falconer, in conversation with the claimant, indicated that it he did not know why Ms Kaur did not want to extend the secondment and that this decision baffled him. He wondered whether it was part of a wider reorganisation that she was looking at.

[71]On 4 October 2021 Mr Dunlop, a contractor, was recruited as a Temporary Procurement Manager. Also, on this day the claimant submitted a formal grievance in writing. She clearly states that she believes herself to have been discriminated against due to her disability. There is no dispute that this assertion within the grievance is a protected act for the purposes of section 27 EA. The grievance is a lengthy document, however, within it is a “Summary of Grievance” which reads: “I am a long-term employee of Network Rail and I was given an offer of a 12-month secondment, unfortunately I had an accident that has left me disabled. Network Rail have committed acts of discrimination against myself by removing me from the role, breaching our contract, and throughout the whole process has caused me undue stress by lack of support, breaching of national principles and policies and causing me significant pain due to direct managers ignoring me and not even given me the time of day for a conversation.”

[72]On 7 October 2021 the claimant spoke to Mr Holmes, at that time Senior Commercial Manager, about her interest in doing a secondment to cover the maternity leave of a member of Mr Holmes’s team.

[73]On 11 October 2021 Ms Vercedea was temporarily seconded to the position of Assistant Commercial Manager.

[74]Also, on 11 October 2021 the claimant had a discussion on Teams with Mr Holmes. At this point in time the fact that the claimant had put in a grievance was reasonably widely known within the part of the respondent organisation in which she worked.

[75]The relevant part of the team’s conversation will be quoted in full below with ”MH” indicating Mr Holmes is comments, and “C” the claimant’s: MH - I spoke to [my line manager] and he was OK with a secondment but wished to clear this with Ken Powell. I’ve a meeting organised with Guv this afternoon and I’ve also invited Ken to the meeting. (I’m not clear what is happening with the organisation changes). I’m hoping to get the agreement to second the role. C - I see MH - One question that may be raised is, if they agree to the secondment, how do you see your position with relation to the Genevieve [sic – this should be “grievance”] you have raised C - what do you mean? MH- As I understand the situation you have submitted a grievance. That grievance will need to go through the grievance process and the outcome will be whatever is determined. Or if you are secondment into a band 4 role you may choose to withdraw the grievance, because you are now doing a band 4 role. What would you intention be if you are secondment into a band 4 role MH – [The postholder] is on maternity/annual leave, between 29th Nov 21 to 12 Dec 22. C - the secondment has nothing to do with the grievance. In this meeting the only discussion should be my releasement from Procurement and nothing else [Postholder] mentioned she hasn’t been feeling well during her pregnancy and she had a midwife appointment on Thursday also so any time I could spend with her before she goes on leave would be beneficial MH - I understand what you are saying, but unfortunately life is never quite that simple. It all depends what your objectives are. [Postholder] has had a difficult pregnancy and she may have to leave work earlier than she anticipated. I agree that a handover period is important. It is difficult picking up what someone else has been doing C - hi Mark, I understand you have been asked these questions but let me reiterate, my skills and suitability for [postholder’s] role have nothing to do with the grievance I raised in the grievance should be confidential and nor Ken or anyone else should be discussing about this, especially when I’m not present. If anyone attending the Potential Secondment meeting try to initiate a discussion about the grievance I raised, please tell them to contact me directly MH -I confirm that nothing has been said to me about your grievance. I’m just trying to understand your intentions/position in case the question is raised. You have clarified this for me.

[76]Mr Holmes was cross examined about this exchange and was asked questions by the tribunal. From the totality of the evidence, we accept that, while he knew that the claimant had made a grievance, he knew nothing about the contents of the grievance. He strongly suspected that the grievance related to a secondment she was currently working on. In short, he wondered whether getting a secondment with him would solve her problems. He also had a concern about whether there was a possibility that he might “import” problems into his team, and he was trying to gain an understanding about whether this might be the case.

[77]We found Mr Holmes a reliable witness. He has retired from the respondent’s employment and he candidly accepted in his evidence that his approach may not have been the appropriate one. While this might not be relevant to the issues which we have to decide, we accept Mr Holmes’s evidence that he was not acting with any malicious intent. We accept his evidence that he knew nothing about the content of the grievance, specifically that it was a grievance alleging disability discrimination, although as he himself said “Anything can be a possibility”.

[78]Later on 11 October 2021, Mr Holmes had a meeting with Ms Kaur and Mr Powell at which the claimant’s possible secondment into Mr Holmes’s team was discussed. As set out in the Teams discussion earlier that day set out above, the post-holder was taking a year’s maternity leave. This meant that any secondment would be over the six month maximum for a developmental secondment or “soft landing” (to use Mr Holmes’s terminology) and the secondment would have to be advertised and subject to a formal recruitment process. This decision ultimately was taken by Ms Kaur and Mr Powell. We find that the reason why the secondment was not offered as a “soft landing” was because it was clear that the post needed covering for 12 months.

[79]The secondment to the Commercial Manager post was subsequently advertised, the claimant applied for the role and was unsuccessful after interview. The claimant initially claimed that being unsuccessful in her application for this role was an act of victimisation. She withdrew this during the hearing, we did not hear from the witness dealing with the interviewing process, and we will say no more about it.

[80]On 13 October 2021 the claimant’s secondment as a Senior Buyer ended and she returned to her substantive role as a Buyer.

[81]On 19 October 2021 the claimant started the ACAS Early Conciliation process

[82]On 21 October 2021 there was a further OH assessment which merely noted a background physical the claimant’s mental health.

[83]On 26 October 2021 the claimant and Ms Kaur met to discuss issues surrounding the claimant’s secondment to the Senior Buyer role. The claimant was extremely upset during this meeting and, we find, asked Ms Kaur to extend her secondment there and then, something must Kaur was not able willing to do. As a grievance was in progress, Ms Kaur did not delve into the detail and allowed the grievance process to take its course.

[84]Mr Ward, Senior Program Development Manager in the Eastern Region, investigated the claimant’s grievance. He interviewed a number of relevant witnesses and, on a 20 January 2022 invited the claimant to a meeting at which she informed her that her grievance was not upheld, apart from two points which were partially upheld. Mr Ward upheld the grievance to the extent that he considered that Mr Holmes had breached the respondent’s policies by discussing the claimant’s grievance directly with her when he should not have done so as he was not involved in the process. However, he did not consider that Mr Holmes had used the mention of the grievance as a “bargaining chip”. Additionally, an allegation relating to issues which have not featured in this claim (relating to the appointment of a welfare manager) was partially upheld, in that communication should have been clearer.

[85]The claimant subsequently appealed against the outcome of her grievance following receiving written confirmation on 31 January 2022. She was informed on 27 June 2022 that her grievance appeal was not upheld.

[86]On 11 November 2021 a Mr Khan joined the Pre-Contract Services team as a Senior Buyer on a temporary basis as a contractor. We accept the evidence of Ms Kaur that there are certain advantages to using contractors. The budget for contractors was separate for that of permanent staff, and at the relevant time there was sufficient budget to take on temporary contractors. Contractors were also not included in the official headcount, and so managers can fill gaps without barriers created by HR restrictions, the ongoing team structure review or headcount constraints. The position Ms Kaur found herself in was, essentially, she could recruit as many contractors as she needed to plug any resource gaps in her teams. Contractors can also be deployed flexibly within the Pre-Contract Services team. Whereas a secondee needs to be retained in position throughout the duration of a secondment regardless of workload, contractors can be engaged swiftly and terminated on one week’s notice. Ms Kaur could also look to fill identified skills gaps with contractors with specialised experience. In short, in a situation where there was a degree of flux, uncertainty and HR policy constraint, using contractors presented a number of advantages.

[87]While the Pre-Contract Services Team was under review the respondent was unable to recruit contractors into Band 5 Buyer roles. This is because temporary or contract workers were specifically not given authority to allow the use of the respondent’s funds to enter into agreements, modify agreements or make payments in relation to these agreements or make payment for purchases such as fees and licences. This is essentially the work of the Band 5 buyer. Ms Kaur was free to use contractors for the Band 4 Senior Buyer role as there were no such restrictions relating to it.

[88]On 7 January 2022 another OH report was produced. This noted the claimant undertaking her full duties working from home but with her pain levels remaining an issue for her with prolonged sitting. Workstation adjustments had not fully alleviated her pain and she required regular impromptu breaks to lie down to relieve the pressure on her spine. She was awaiting an orthopaedic review and it was hoped that a long-term treatment plan would be formulated. The view was that the claimant was fit to perform her role with adaptations and support. The practitioner considered that the claimant did not satisfy the definition of disability as the spinal injury have not lasted longer than 12 months nor was likely to last longer than 12 months and was not having a significant impact on her ability to undertake normal day-to-day activities. However, the report itself refers to the report maker’s inability to comment on the long-term prognosis. Additionally, there is no evidence that the practitioner considered the position of the claimant without treatment.

[89]On 14 April 2022 there was a further occupational health assessment this report indicated that it the claimant’s spinal injury was likely to be covered by the definition of disability because it had lasted longer than 12 months was likely to last longer than 12 months, that acute episodes were likely to recur and that it would have a significant impact on her normal daily activities without the benefit of treatment.

The law

[90]Section 6 EA provides: - (1) A person (P) has a disability If – (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities

[91]Section 212 EA provides that ““substantial” means more than minor or trivial”.

[92]Schedule 1 Part 1 Paragraph 2 of the EA provides:-(1) The effect of an impairment is long-term if – (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.

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

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

(b) but for that, it would be likely to have that effect. (2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.

[94]Part 2 of the same schedule obliges tribunals to take account of such guidance as it thinks is relevant. The “Equality Act 2010 Guidance: Guidance on matters to bet taken into account in determining questions relating to the definition of disability” (May 2011) (the “Guidance”) was issued by the Secretary of State pursuant to s. 6(5) of the EA 2010.

[95]The relevant point in time in assessing whether the claimant is disabled under section 6 EA is the time of the alleged discriminatory acts (Cruikshank v Vaw Motorcast Ltd

[2002] ICR 729

[96]In respect of direct discrimination, Section 13(1) of the EA provides as follows: A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[97]Section 23(1) of the EA deals with comparisons, and provides:- On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.

[98]The EAT in Chief Constable of West Yorkshire v Vento

[2001] IRLR 124

made clear that using examples of individuals who were not true comparators was a proper way of constructing a hypothetical comparator.

[99]The burden of proof provisions are set out in section 136 EA:-(1) This section applies to any proceedings relating to a contravention of this Act.

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

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

[100]When considering direct discrimination, the tribunal must examine the “reason why” the alleged discriminator acted as they did. This will involve a consideration of the mental processes, whether conscious or unconscious, of the individual concerned (Amnesty International v Ahmed

[2009] IRLR 884

). The protected characteristic need not be the only reason why the individual acted as they did, the question is whether it was an “effective cause” (O'Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School and anor

[1996] IRLR 372

[101]Guidance on the application of the burden of proof provisions of the Sex Discrimination Act 1975 (which is applicable to the Equality Act 2010) were given by the Court of Appeal in Igen v Wong

[2005] IRLR 258

[102]Tribunals are cautioned against taking too mechanistic an approach to the burden of proof provisions, and that the tribunal’s focus should be on whether it can properly and fairly infer discrimination (Laing v Manchester City Council

[2006] ICR 1519

). The Supreme Court has observed that provisions “will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence, one way or the other” (Hewage v Grampion Health Board

[2012] UKSC 37

[103]The Court of Appeal has emphasised that “The bare facts of a difference in treatment, without more, sufficient material from which the tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination” (Madarassy v Nomura International plc

[2007] IRLR 246

). “Something more” is needed for the burden to shift. Unreasonable behaviour without more is insufficient, though if it is unexplained then that might suffice (Bahl v Law Society

[2003] IRLR 640

[104]For cases of discrimination by perception, the question for the tribunal will consider whether the employer believed that all the elements of the statutory definition of disability were met, although the firm to attach the label of disability (Chief Constable for Norfolk v Coffey

[2020] ICR 145

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

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

[106]Guidance was given by the EAT on the correct approach to section 15 claims in Pnaisner v NHS England

[2016] IRLR 170

. In shorta. Was there unfavourable treatment and by whom?

b. What caused the alleged treatment, or what was the reason for it?

c. Motive is a relevant.

d. Was the cause/reason “something” arising in consequence of the claimant’s disability?

e. The more links in the chain of causation, the harder it will be to establish the necessary connection.

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

g. The knowledge requirement is as to the disability itself, not extending to the “something” that led to the unfavourable treatment.

h. It does not matter in which order these matters are considered by the tribunal.

[107]Section 27 EA deals with victimisation and provides:-(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

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

[108]“Detriment, in this context is to be construed widely and from the point of view of the victim, and has been held to mean “treatment… Of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment” (Shamoon v Chief Constable of the RUC

[2003] IRLR 285

). The EHRC Code paragraph 9.8 defines detriment as “anything which the individual concerned might reasonably consider changed their position for the worse will put them at a disadvantage”.

[109]The tribunal must determine why the respondent acted as it did and whether the treatment was because of a protected act. The protected act need not be the sole reason for treatment as long as it is significantly influenced the reason for treatment.

Conclusions

[110]Following the claimant’s concessions, the only act of direct disability discrimination and discrimination arising from disability which the claimant pursued related to the decision to end the claimant’s secondment into the role of Senior Buyer and/or not to extend it beyond 13 October 2021. On our findings, the relevant pleaded acts of discrimination took place on or around 27 September 2021. We have therefore to consider whether the claimant was disabled person on this date.

[111]The first question is whether or not the claimant has a physical (in this case) impairment. We remind ourselves that it is not necessary to establish the underlying cause, but to focus on the effect.

[112]There was no dispute that the claimant had a road traffic accident on 10 March 2021 and that she experienced a fracture to a vertebra in her thoracic spine (T6). There is evidence from the Romanian medical reports and letters that there was a gradual improvement in the claimant’s condition over time. There is a continuity of medical evidence through the summer of 2021 when she continued to experience pain in her back and have difficulty staying in a seated position. MRIs carried out in early September 2021 indicate that there were continuing abnormalities in her back (though we do not profess any expertise whatsoever in medical matters and we have no overall report that would explain the detail). The claimant herself indicated that she was still in pain during September and that she had been advised not to lift more than 2 kg for the first year. The evidence which post-dates the pleaded acts of discrimination indicate that the claimant’s pain persisted. GP records in November 2021 note that the claimant was still experiencing pain.

[113]While it is the case that we are focusing on the end of September 2021 in determining whether the claimant had a disability, the continuity of evidence before and after that date would indicate that the claimant did indeed have a physical impairment in late September 2021. The claimant has not sought to label it and if the straightforward question “What was wrong with the claimant physically?” was asked, it might perhaps best be answered as a “spinal injury” even “a back problem”.

[114]We turned to consider whether at the relevant time the impairment have an adverse effect on the claimant’s ability to carry out normal day-to-day activities, and whether that effect was substantial.

[115]We have not found it easy to resolve this question. Part of the difficulty is that the claimant’s condition did improve over time. It appears that the claimant was expected by doctors in Romania to experience a “slow, favourable evolution”. Further difficulty was created by the fact that in the claimant’s disability impact statement she was at times a little vague with dates. As set out above, the statement suggests quite substantial impairments to her ability to carry out normal day-to-day activities “while I stayed with my parents”. Such a level of infirmity was not apparent to Ms Parkes, though we have made observations about the shortcomings of Ms Parkes’ viewpoint.

[116]However, the claimant did give evidence that on her return to the UK in midSeptember 2021 she received substantial help from her brother in carrying out normal day-to-day activities, such as cooking, laundry, changes the bedding, shopping and putting her shoes on. The evidence from this time, and extending significantly into the future, was that the claimant experienced pain sitting for longer than one or two hours at a desk, also, that the claimant manages her pain with analgesic medication physiotherapy and light exercise. She has given evidence, which was not challenged, that without this treatment she would not be able to sleep properly.

[117]Again, it is at times difficult to establish the time period for some of the assertions within the disability impact statement, however, there appears to be a continuity of evidence suggesting that the claimant’s impairment had an adverse effect on her ability to carry out normal day-to-day activities (cooking, laundry, shopping, sitting at a desk etc) both before the end of September and afterwards. This continuity suggests that at the relevant time her normal day-to-day activities were adversely affected.

[118]We consider, on the totality of the evidence that the adverse effect of the impairment on the claimant’s normal day-to-day activities was more than minor. We have regard to section B of the Guidance on the definition of disability (2011) in coming to this determination. The claimant appeared to modify the way she carried out activities and employ avoidance strategies to manage her pain.

[119]Another difficult question we have found was determining whether the impairment’s substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities was long-term. At the date of the pleaded acts of discrimination, the end of September 2021, the impairment had not lasted 12 months. The question for us, therefore, was whether it was likely to last for at least 12 months. Likely in this context means that it “could well” last 12 months. This assessment of likelihood is to be made at the date of the act of discrimination. This is to be assessed by reference to the facts existing this date, and we are not entitled to have regard to subsequent events in determining this. This can lead to the odd situation of it being open to a tribunal to determine that an impairment was not likely to last for at least 12 months when faced with evidence that in fact it did so last.

[120]The medical evidence suggested that any “favourable evolution” would be “slow”. In September medical evidence suggested continued treatment was necessary. Also, at the return to work meeting on 15 September 2021 advised that anticipated recovery time to a full recovery was two years, and that she had been advised not to lift more than 2 kg for the first year. At this stage she was still in pain and could only sit for a maximum of 1 1/2 hours and was in need of physiotherapy.

[121]The prognosis was uncertain but pointed towards a full recovery within two years. The general trend therefore would suggest that the claimant would still be symptomatic for at least a further six months from the pleaded acts of discrimination. We find that at the end of December 2021 it was the case that the claimant’s impairment could well continue to have a substantial adverse effect on her ability to carry out normal day-to-day activities for a further six months. This means we find that it satisfies the definition of long-term under Schedule 1 EA.

[122]We therefore find that at the relevant time, namely around 27 September 2021, the claimant was a disabled person for the purposes of the EA.

[123]We are focussing her on the reason why the respondent decided to end the claimant’s secondment into the Senior Buyer role and/or not extend it.

[124]Our findings are that Mr Falconer did not give a cast-iron guarantee that the claimant would be given a 12-month secondment. However, our findings reflect a lack of clarity in communication which may have led to the claimant expecting this. Ultimately, Ms Kaur took the decision, having taken advice from Ms Parkes, that the claimant would be given a six-month development secondment which meant that she did not have to compete for the role. While it did not appear to be the claimant’s case, we would make the point that this decision around 19 March 2021 had nothing to do with the claimant state of health.

[125]Thereafter, the expectation in the normal course of events would have been that her secondment would end on 13 October 2021 and that she would return to her substantive role. We accept that it would have been very rare in the respondent’s organisation for there to have been an extension of the secondment.

[126]We have, in this case, some correspondence between Ms Kaur and Ms Parkes on 15 September 2021 and 27 September 2021 which sheds some light on the inner workings of the decision-making. The correspondence is strongly suggestive of Ms Kaur operating on the assumption that the secondment was going to end in October and that she wanted to know whether the claimant would revert to her substantive role, and what could then be done about the Band 4 vacancy. Ms Parkes’s response confirms the claimant would revert to her Band 5 role when the secondment ends. The rest of the exchange concerns matters of headcount and reflects difficulties in making recruitment decisions in the context of the team structure being under review. The continuation of the exchange on 27 September 2021 shows Ms Kaur seeking advice on all the available options, which included possibly extending the secondment. The response from Ms Parkes, again shows that headcount pressure is an issue and things are uncertain. Essentially the situation appears to be that the decision is down to where Ms Kaur needs the resource more.

[127]Our findings are that there was a context to Ms Kaur’s decision, namely a review of the structure of the Pre-Contract Services team. We have also found that the use of contractors presents many advantages in terms of flexible deployment, the filling of identified skills gaps, and budgetary issues. At the point in time, the end of September 2021, with the ongoing review of the team and the uncertainty it creates we conclude that there were cogent reasons behind Ms Kaur not wishing to extend the claimant’s secondment at Band 4, but for her to revert to her substantive role as a Band 5 Buyer. This would ensure that there was a directly employed resource at grade 5 which could fulfil the essential functions of the role (which is a contractor could not do), would not cause difficulties with headcount. It would be open to the respondent to plug the Band 4 position with contractors.

[128]We have looked at the named comparators to see what their circumstances tell us.a. Mr Massingham’s circumstances do not appear to be comparable. He had been appointed to a 12-month secondment following that role being advertised and subject to the recruitment procedures. The advert, in January 2020, for the secondment had also clearly indicated that the contract that the potential to become permanent. Mr Massingham was clearly a “preferred candidate” in a succession planning process. His appointment, and his subsequent appointment to a permanent Senior Buyer role was entirely in accordance with policy and procedures.

b. We have also found that Mr Mendrek was appointed as a permanent Senior Buyer following a formal recruitment process that was advertised internally. Again, this appears to have been the respondent’s policies and procedures. This is entirely different from the claimant’s circumstances.

c. We have had some difficulty in making any findings about the situation of Ms Vecerdea. The claimant’s statement says that she started a six-month secondment in November 2021 and this was extended for a further six months. That is all. Nothing about the surrounding circumstances, for example, whether there was any advert or recruitment process followed. Ms Vercedea herself gave evidence, but this was entirely in relation to the claimant’s disability. She gave no evidence about any secondments. We have difficulty accepting uncritically the claimant’s assertion about Ms Vercedea when Ms Vercedea herself could have confirmed this. The claimant having given inaccurate accounts about Mr Falconer’s alleged guarantees and Ms Parkes’ alleged advice about the start date of the Senior Buyer secondment do not give us confidence that the claimant’s evidence in all the circumstances can be relied upon here.

[129]We have not found the evidence of the named comparators of any assistance in establishing whether the claimant was less favourably treated because of her disability.

[130]We find that the reason why the respondent ended the claimant’s secondment into the role of Senior Buyer and/or did not extend it beyond 13 October 2021 is as follows:a. The secondment was only offered for a six-month period to 13 October 2021, as a development opportunity for the claimant without requiring any competition for it.

b. The expectation and overwhelmingly common practice within the respondent organisation was that a secondment would end after six months and not be extended.

c. The review of the Pre-Contract Services team from August 2021 onwards created a degree of flux and uncertainty as regards budget, headcount and structure within the team. There was a very reasonable business case for the claimant returning to her substantive role rather than her secondment being extended at the end of September 2021. Doing so gave Ms Kaur more options and flexibility within the team.

[131]We do not find that there are facts from which we could conclude in the absence of any other explanation that the respondent had unlawfully discriminated against the respondent. In terms of the “something more” needed in order to shift the burden to the respondent to disprove discrimination became and has made a number of submissions many of them are disposed of in our findings but we will address a couple of them:a. The denial that the claimant is a disabled person is not something more that would shift the burden. We have found the issue of disability a reasonably finely balanced one ourselves, and do not hold it against the respondent that they sought a determination on the issue.

b. The fact that the claimant was cross examined on the contents of an OH report dated 13 September 2021 despite the fact that Ms Corr did not receive it until October 2021 is not an issue which shifts the burden of proof. It is unsurprising that cross-examination was tailored to the date the document bore.

c. We do not consider it the respondent unfairly attacked the claimant’s character. We ourselves were surprised at the tone and wording of some of the correspondence coming from the claimant to her line manager in this case. Exploring it in cross-examination was not inappropriate.

d. While there were no formal documents about the review of the structure of the Pre-Contract Services team, we are satisfied on the evidence that such a review was taking place. As we have set out, certain correspondence and evidence during the grievance process strongly suggests that it was taking place.

e. We do not consider that inconsistent evidence was given to the grievance and the tribunal. It is right to say that the respondent has expanded on its reasoning, but this is not uncommon, and is not sufficient to shift the burden of proof.

[132]Whether we approach the question directly, or by way of the burden of proof provisions, we do not conclude that the decision to end the claimant secondment and not extended was less favourable treatment because of the claimant’s disability or a perception that she was a disabled person. We find that the reason why the secondment ended when it did was not extended was for valid business reasons.

[133]We conclude that the respondent did not directly discriminate against the respondent because of her disability or because of any perception of it.

[134]The alleged act which is said to be unfavourable treatment for the purpose of the claimant’s section 15 EA claim is the same as for her direct discrimination claim, namely ending her secondment and not extending it.

[135]We have already concluded that the reason why the respondent ended the secondment and did not extend was for valid business reasons. Potentially this could in fact amount to unfavourable treatment. However, this treatment was because of the reasons we have identified above. To be clear, we do not conclude that the ending and non-extension of the secondment was because the claimant had been absent sick, had undergone a phased return to work or that she required a further period of recovery from her injuries.

[136]As we have found that the potentially unfavourable treatment was not because of any of the matters which arose from disability we do not need to go on to consider justification.

[137]We find that the respondent did not discriminate against the claimant under section 15 EA.

[138]As we have set out above, the assertion of disability discrimination within the claimant’s grievance of 4 October 2021 amounts to a protected act.

[139]There is also no dispute that Mr Holmes made the comments set out in paragraph 6.2.1 of the list of issues, and that a “soft launch” secondment into the role of Commercial Manager was not pursued.

[140]Found Mr Holmes did not have a malicious intent in making the comments, this is not the lens through which we determine whether the claimant was subjected to a detriment. We consider, looking at those comments from the claimant’s perspective.

[141]The claimant had raised a grievance about issues she found distressing. She would have had a reasonable expectation that her grievance would remain private and would not be a talking point within the workplace. It must have come as something of a surprise, and an unpleasant one at that, that Mr Holmes, a manager more senior than her, would raise the grievances she had made in a conversation about a possible secondment to his team. In situations like this it is understandable that a person will try to work out why somebody might be raising this issue. It is understandable that the claimant might conclude that some sort of unreasonable pressure to drop her grievance was being put on her. We therefore conclude that these comments were a detriment.

[142]We therefore turned the question of whether Mr Holmes subjected the claimant to this detriment because she had done what he believed she had done or might do a protected act. On the facts as we have found, we conclude that Mr Holmes did not make these comments because of a protected act. We find that he did not know that the claimant had raised disability discrimination in her grievance. He may have had a strong suspicion that the grievance related to a secondment, but there was no evidence whatsoever he knew or reasonably suspected that the grievance touched upon any discrimination issues.

[143]We therefore conclude that, in respect of the comments in the Teams discussion on 11 October 2021, the respondent did not victimise the claimant.

[144]The decision not to pursue the “soft launch” secondment into the Commercial Manager role was taken by Ms Kaur and Mr Powell. A “soft launch” would have given the claimant the secondment without the need to compete for it. Not pursuing it could, therefore, be seen as a detriment.

[145]Ms Kaur knew, or reasonably ought to have known, that the claimant have made a complaint of discrimination in her grievance. However, we have set out above that it is clear even from Mr Holmes’s discussion on Teams with the claimant that was to be for 12 months. Because it was going to be a 12-month secondment it could not be a “soft launch” or development secondment. The policy and procedure required that it be advertised and subject to a formal recruitment process. We conclude that the reason why the role was not offered as a soft launch secondment was nothing to do with the claimant’s complaint of discrimination and purely to do with the fact that it was a 12-month secondment.

[146]We therefore conclude that the respondent did not victimise the claimant in respect of the “soft launch” secondment into the Commercial Manager role. Overall conclusion

[147]We have found that the claimant was a disabled person at the relevant time. We have not found any of her claims well-founded, and we dismiss them. Employment Judge Heath Date: 10 April 2023 ANNEXE

The Issues

[1]Time limits1.1 Was the complaint of discriminatory conduct in relation to the decision to recruit two of the claimant’s colleagues into the roles of Senior Buyer on a permanent basis during her absence presented in time in line with s.123 Equality Act 2010?

1.2 If not, was this part of a continuing act for the purposes of s.123(3)(a) Equality Act 2010, the last of which was in time?

1.3 Alternatively, is it just and equitable under s.123(1)(b) Equality Act 2010 for the Tribunal to grant an extension of time as regards this complaint of discriminatory conduct?

[2]Disability2.1 Was the claimant a disabled person in accordance with s.6 Equality Act 2010 at all relevant times?

2.2 If not, for the purposes of the claimant's direct discrimination claim, did the respondent perceive the claimant to be a disabled person in accordance with s.6 Equality Act 2010?

[3]Direct disability discrimination (Equality Act 2010 section 13)3.1 Did the respondent do the following things:3.1.1 end the claimant’s secondment into the role of Senior Buyer and/or not extend her secondment into the role of Senior Buyer beyond 13 October 2021; and/or

3.1.2 recruit two of the claimant’s colleagues into the roles of Senior Buyer on a permanent basis during her absence?

3.2 The claimant relies upon the following comparators and/or a hypothetical comparator:3.2.1 Nathan Massingham

3.2.2 Will Mendrek

3.2.3 Dolores Vecerdea

3.3 With regard to the claimant's named comparator(s) (actual or hypothetical), is there any material difference between the circumstances relating to each case?

3.4 Was that less favourable treatment?

3.5 If so, was it because of disability/perceived disability?

[4]Discrimination arising from disability (Equality Act 2010 section 15)4.1 Did the respondent treat the claimant unfavourably by:4.1.1 end the claimant’s secondment into the role of Senior Buyer and/or not extend her secondment into the role of Senior Buyer beyond 13 October 2021; and/or

4.1.2 recruit two of the claimant’s colleagues into the roles of Senior Buyer on a permanent basis during her absence?

4.2 Did the following things arise in consequence of the claimant’s disability:4.2.1 Her sickness absence following the car accident; and/or

4.2.2 Her having required and undergone a phased return to work; and/or

4.2.3 The likely recovery period required because of the injuries sustained in the car accident?

4.3 Was the unfavourable treatment because of any of those things?

4.4 Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were:4.4.1 It was proportionate for the respondent to decide that the claimant's secondment end on the agreed, planned date of 13 October 2021 rather than extend it, in light of the business aim of ensuring that departments are staffed appropriately and in a way which is most cost-effective for the respondent and in line with the Secondment Policy requirements; and

4.4.2 It was proportionate for the respondent to appoint Colleagues One and Colleague Two (as defined in the Grounds of Resistance) into permanent roles, based on the respondent’s business need in May and June 2021. The respondent has a legitimate aim of ensuring that its' departments are operating as well as possible, which includes ensuring that they are appropriately staffed, in line with business need. As the respondent identified the need for two permanent Senior Buyers in May and June 2021, it was proportionate and legitimate for it to fulfil such roles with Colleagues One and Two, the process for which was in line with the Respondent’s usual policies and procedures for such appointments.

4.5 The Tribunal will decide in particular:4.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

4.5.2 could something less discriminatory have been done instead;

4.5.3 how should the needs of the claimant and the respondent be balanced?

4.6 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?

[5]Harassment related to disability (Equality Act 2010 section 26)5.1 Did the respondent do the following things:5.1.1 The decision to end the claimant’s secondment into the role of Senior Buyer and/or not extend her secondment into the role of Senior Buyer beyond 13 October 2021.

5.1.2 The decision to recruit two of the claimant’s colleagues into the roles of Senior Buyer on a permanent basis during her absence?

5.2 If so, was that unwanted conduct?

5.3 Did it relate to disability etc?

5.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

5.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[6]Victimisation (Equality Act 2010 section 27)6.1 Did the claimant do a protected act as follows, submit a grievance on 4 October 2021?

6.2 Did the respondent do the following things:6.2.1 Mr Holmes’ comments on 11 October 2021: “one question that may be raised is, if they agree the secondment, how do you see your position with relation to the Genevieve [grievance] you have raise”; “As I understand the situation you have submitted a grievance. That grievance will need to go through the grievance process and the outcome will be whatever is determined. Or if you are seconded into a band 4 role you may choose to withdraw the grievance, because you are now doing a band 4 role. What would your intention be if you were seconded into the band 4 role”; “I understand what you are saying, but unfortunately life is never quite that simple. It all depends on what your objectives are"; and “I confirm that nothing has been said to me about your grievance. I’m just trying to understand your intentions / position in case the question is raised. You have clarified this for me”.

6.2.2 Mr Holmes’ decision not to pursue a ‘soft launch’ secondment into the role of Commercial Manager.

6.2.3 The claimant having been unsuccessful in her application for the role of Commercial Manager.

6.3 By doing so, did it subject the claimant to detriment?

6.4 If so, was it because the claimant did a protected act?

6.5 Was it because the respondent believed the claimant had done, or might do, a protected act?

6.6 If so, did the respondent take all reasonable steps to prevent employees from doing the discriminatory act, or from doing anything of that description?

[7]Remedy for discrimination or victimisation 7.1 If the claimant’s claim succeeds, what is the appropriate remedy:7.1.1 Declaration and/or

7.1.2 Compensation and/or

7.1.3 Recommendation