Ms J Naidoo v Hertfordshire County Council: 3300140/2022 and 3313453/2023
EMPLOYMENT TRIBUNALS
Case No 3300140/2022, 3313453/2023
Between
Ms J NaidooClaimantHertfordshire County CouncilRespondent
Before
Employment Judge Young
Members
Ms B Von Maydell-KochMs L JaffeMr Simon Harding (instructed by Counsel) for claimantMr John Small (instructed by Counsel) for respondentDate 4 August 2025
JUDGMENT
All the Claimant’s claims are not well founded and are dismissed. Approved by: JUDGMENT of
REASONS
[1]The Claimant was employed by the Respondent, local authority, as an Apprentice Road Engineer, from 16 September 2019 until 25 August 2023. Early conciliation started on 24 December 2021 and ended on 5 January 2022. The first claim form was presented on 11 January 2022. After the Claimant was dismissed, the Claimant consulted ACAS on 15 September 2023 and a second ACAS early conciliation certificate was issued on 18 September 2023. The Claimant presented a second claim form on 24 November 2023. The Claims and Issues[2]Initially, the Claimant brought a claim of disability discrimination under section 15 Equality Act 2010. However, on 7 November 2022 the Claimant's claim form was amended to include complaints of direct disability discrimination, harassment related to disability, failure to make reasonable adjustments and victimisation. The Claimant’s second claim form contains complaints of unfair dismissal and additional complaints of disability discrimination. The Hearing and Evidence[3]The hearing was in person over a period of 13 days. The Employment Tribunal was provided with 3 bundles. The main bundle of 2005 pages includes the index, a bundle containing the Claimant’s medical documents referred to as Bundle M (‘BM’) of 208 pages and a Supplemental Bundle (‘BS’) of 475 pages. There were 5 witness statements from the Respondent’s witnesses and the Claimant’s witness statement was 92 pages and 475 paragraphs. We heard evidence from the Respondent witnesses: Victoria Saunders (Team Leader for Local Road Maintenance) the Claimant’s line manager, Neil Richardson (Maintenance Coordination Manager) who carried out the ill health capability process, Chrissy Jacques (Head of Highways Operations) who heard the Claimant’s grievances, Rachael Alder (formerly Director of Finance and Business Support in the department of Growth and Environment, currently Director of Strategy and Performance in Children’s Services) the dismissing officer, Alex Woodman Chief Fire Officer & Executive Director Community Protection) who heard the Claimant’s appeal against dismissal. We also heard evidence from the Claimant.[4]On day 1, Tuesday 11 March 2025, the Respondent’s solicitor, Mr Khan explained that he had received the Supplemental Bundle that morning. Mr Small explained that he had not seen Bundle M and that he would have to review it. The Claimant's solicitor Mr Bretherick explained that the Supplemental Bundle included additional documents from both parties. Mr Small explained that the Supplemental Bundle was accepted, except in respect of a transcript of a meeting on 18 June 2021. Mr Small explained that the transcript was of a secretly recorded meeting by the Claimant which she refers to in paragraph 168 of her witness statement. Mr Small wanted to know how the transcript was arrived at, and whether it is accurate or not. Mr Harding explained that the recording was made by the Claimant’s mobile phone and the recording was run through Word in order to produce the transcript and that the original recording had recorded family conversations. Mr Small explained that the Respondent did not accept the accuracy of the transcript. The Employment Tribunal directed the Claimant to provide the Respondent with the original recording and the specific time stamps in relation to matters in contention. Mr Small referred us to an updated schedule of loss that had been provided by the Claimant in January 2025. Mr Small stated that in the schedule of loss the Claimant refers to a joint expert for the first time.[5]The Employment Tribunal directed that the parties produce a joint list of issues containing all the issues in one list as currently there were 2 lists. The parties provided the agreed joint list to the Employment Tribunal on the morning of Wednesday 12 March 2025.[6]On day 2, Wednesday 12 March 2025, the Claimant's solicitor, Mr Bretherick told the Employment Tribunal that there was an updated Supplemental bundle. The Employment Tribunal received this bundle that morning with an agreed cast list and chronology. Mr Harding confirmed that the Claimant was withdrawing her complaints concerning Mr Atherton. The Employment Tribunal dismissed those complaints. The Employment Tribunal listed extra days for the case to be heard as it was clear that the matter could not be heard in the days allocated having regard to counsel’s time estimate and the breaks required as well as the fact that Mr Harding told us that the Claimant could not attend on Friday 14 March 2025 after 14:00 as the Claimant went into hospital the previous night as her heart rate was above 100. The Claimant was told she should go to A&E to get emergency tests on Friday 14 March 2025. It was agreed that the Employment Tribunal would not sit after 13:00 on Friday 14 March 2025.[7]Mr Harding made it clear that his instructions were that the Claimant wanted to get this over and done with. She had a heart rate monitor. Mr Harding explained that the Claimant has been told that it is for her to tell the Employment Tribunal what she needs and if her heart rate goes up, and that he has impressed this upon her.[8]Mr Small confirmed that the Respondent had no objection to Bundle M. The Respondent had received the recording relating to the dispute transcript with the necessary time stamps. It was the Respondent’s contention that it isn’t an accurate record, and that the Claimant has left out sentences and paragraphs. If the Claimant wants the transcript to be admissible, then it has to be a full transcript. Mr Harding stated that at that stage he hadn’t asked the Claimant if it was a full transcript. Mr Harding referred to paragraph 169 of the Claimant’s witness statement and stated that those were the utterances in question and they were accurate. The Employment Tribunal tried to resolve the dispute between the parties on the disputed transcript; however, Mr Harding said that he needed to take instructions in respect of the disputed matters, but Mr Harding could not provide word for work on what the disputed matters were until he had fully prepared his cross examination. It was the case that he may have follow up questions. It was agreed that Mr Harding would be able to speak to the Claimant whilst she was giving evidence, but only on the issue of the transcript.[9]On day 10 (Thursday 27 March 205), the Respondent produced an updated Supplemental bundle with the outcome of the grievance appeal and an email dated 8 December 2020 sent to Victoria Saunders added as a new page 219. Mr Harding had no objections to the addition of these documents.[10]On day 11 (4 June 2025), Neil Richardson had some difficulty with this audio; there was constant interference. We took a break to enable Neil Richardson to use headphones to reduce the interference and this seems to make things better. However, we continued to have difficulties with the connection to Mr Harding. The Employment Tribunal made the decision to convert the hearing back to an in person hearing, and the parties were required to attend the hearing in person, with the exception of the Claimant who was permitted to attend via CVP as a reasonable adjustment.[11]On day 12 (Thursday 5 June 2025), the parties and counsel attended the hearing in person. The Employment Tribunal heard oral submissions on day 14 (Monday 9 June 2025), which were consistent with the written submissions submitted by Mr Harding and Mr Small. Reasonable adjustments[12]The Claimant sent an email on Monday 10 March 2025 at 16:38 setting out her ‘wish list’ of reasonable adjustments in a document. The Employment Tribunal enquired what earlier finishes meant. The Claimant said that she wanted to finish between 16:00 and 16:30, and she has good days and bad days, but she doesn’t want to prolong matters unnecessarily.[13]It was explained to the Employment Tribunal that one of the symptoms can affect brain performance under stress, immune stress response and that we take this into account regarding the Claimant’s evidence, which we did.[14]On day 2 of the hearing (Wednesday 12 March 2025) the Claimant requested that her sister be allowed to support her in the room. This was agreed to as long as the Claimant’s sister could be seen on screen at all times, but the Claimant’s sister did not join the Claimant in the same room as her when she was giving evidence.[15]It was also agreed that the Employment Tribunal would sit until 16:30 in order that the Claimant had 1.5 hours for lunch whilst she was giving evidence. When the Claimant was not giving evidence, it was agreed that the Employment Tribunal would take 1 hour break as her counsel and solicitor would be able to assist her if anything came up whilst she was taking a break.
Findings of fact
[16]We make these findings of fact on a balance of probabilities. Only findings of fact relevant to the issues and those necessary for the Tribunal to determine have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The Tribunal has not referred to every document it read and/or was taken to in the findings below, but that does not mean it was not considered if it was referenced in the witness statements/evidence and considered relevant.[17]References to numbers in square brackets are a reference to the agreed bundle page numbers. References in a square bracket with the prefix “MB” then the number is a reference to the medical bundle. References in a square bracket with the prefix “S” then the number is a reference to the supplemental bundle. References in a square bracket with the prefix that contains “WS” then the number is a reference to the witness statement of the person to whom the initials that prefixed WS apply.[18]We found the Claimant’s evidence to be vague and unreliable. The Claimant did not appear at times to know her own case. We considered that the Claimant was not well throughout the proceedings and suffered from brain fog. We had regard to the (equal treatment bench book) ETBB and treated the Claimant as a vulnerable witness. However, we considered that the Claimant was being vague on purpose as she provided more clarity when the questions came from the Employment Tribunal. We considered that she, like all the other witnesses we heard evidence from, was giving evidence about matters that took place some 4 years ago. The hearing was initially listed in 2023, and so we were aware that some of the witness statements were written some time ago.[19]We found the Respondent’s witnesses to be predominantly truthful. They tried their best to recall matters that took place some time ago. The Claimant’s disabilities[20]The Claimant started her apprenticeship on 16 September 2019 with the Respondent in the Local Road Maintenance team in the Growth and Environment department of the Respondent. At the time the Claimant joined, there was 1 other apprentice, Fabian Marshall Joseph and a full time employee in the department, Ellie Marshall, who was also doing the level 3 course. When the Claimant started working at the Respondent, the apprentices were managed by Victoria Saunders. Victoria Saunders was the Team Leader for the Local Road Maintenance Team in the Growth and Environment Department of the Respondent. The Claimant and Fabian Marshall-Joseph were on the same apprenticeship contract initially.[21]Local Road Maintenance was in the Growth and Environment department and delivered carriage way and footway resurfacing schemes and surface treatment schemes under the Council’s jurisdiction. Victoria Saunders was not employed by the Respondent but by Jacobs (‘WSP’), who work in partnership with the Respondent. Victoria Saunders had worked with the Respondent in the team since 2017. As Victoria Saunders was not a Hertfordshire County Council employee, she was not trained on the Respondent’s policies and procedures, although she knew of them and used the forms regularly.[22]Victoria Saunders’ team was made up of 15 staff who were a mixture of senior engineers, project managers, engineers and support staff. Victoria Saunders had managed apprentices before the Claimant. Victoria Saunders explained in her evidence that the idea behind apprenticeships was to grow their own engineers. This was important because it was a hard market to recruit into. Not many people go into engineering. A lot of the staff members were approaching retirement age at that time. Therefore, it was completely in the Respondent’s interests for the apprentices to succeed and to become full-time members of staff. We accept this evidence.[23]The Claimant was given a contract of apprenticeship. As part of that contract, in Appendix 4, it explains that the apprenticeship involves learning the skills referred to in the job outline and gaining relevant experience to complete the required qualification. The Claimant was expected to undertake any relevant training in the workplace. [259] The Claimant’s job description stated that the purpose of the job was “To gain hands on experience aiding the delivery of surface treatment and resurfacing of carriageways, footways and associated works whilst also achieving the HNC Civil Engineering qualification level 3 or 4 within the apprenticeship framework support.” [263] The job description also refers to the Claimant attending Oakland College (‘College’) on a day release in order to successfully complete the qualification. We find it was a requirement of the Claimant’s contract of apprenticeship that she attend College, but not necessarily in person. The contract does not specify that the Claimant needed to attend college in person, only that she attend.[24]The qualification that the Claimant was expected to complete was the Level 3 apprenticeship in civil engineering BTEC [1210]. This was made up of Level 3 civil engineering for technicians’ qualifications, as well as the BTEC construction and the built environment qualification [1211]. The Respondent was expected to provide off the job training as part of the apprenticeship, which included the Claimant’s attendance at Oaklands College, which provided the academic and vocational teaching for the qualification [287].[25]Victoria Saunders explained in her evidence that the apprenticeship was made up first of college learning. This included BTEC Level 3, which was assignment based learning. The College would set the apprentices an assignment, and the other part was the NVQ level 3, which was an evidence based portfolio that the apprentices had to produce. As part of the qualification, there were Practicals such as levelling, which they did on the College grounds, taking levels of carriageways, but the rest of the qualification was classroom learning. There were no exams, only assignments that contributed to the final grade. The NVQ included approximately 12 set criteria that were assessed by an assessor from the College, which needed to be evidenced; there was no teaching. In respect of the NVQ, the evidence could be of different types, i.e. Photos out on site, email correspondence within the team and the wider organisation, pieces of work done on the job, i.e. working on spreadsheets or finance or a screengrab of such spreadsheets and written statements from engineers. The apprentices needed to show evidence of, for example, understanding health and safety within the Respondent and on site, and financial aspects of the role. A few of the criteria that needed to be evidenced was site based, i.e. a live site or a potential site. There were 3-4 criteria that needed to be evidenced, which required site visits.[26]The NVQ was monitored by both the assessor and the Respondent. Only the assessor marked the portfolio. Victoria Saunders explained that the apprentices were required to have a folder for the NVQ, which had tabs for each module. There was a tick list of criteria that the NVQ assessor provided. As part of each module, the NVQ assessor would try and get the evidence, and they would go through one module at a time. If the assessor had evidence for the module, they would tick that off for the apprentice, and that would be complete. This exercise would be done in the monthly review meetings. Victoria Saunders would also meet separately with the apprentices on a monthly basis, and in those meetings, she would provide the apprentices with evidence, but she would also give them the team structure. We find that Victoria Saunders would give the apprentices the team structure so that they could contact the relevant people in the team in order to obtain their own evidence, as it required initiative on their part to complete the criteria for the NVQ.[27]When the Claimant started her apprenticeship, Steve Atherton was the NVQ assessor; however, he left in November/December 2019, and there was a long gap before another assessor, Steve Okoro, was appointed in October 2020.[28]The Claimant says that she suffered from Ehler Danlos Syndrome; Hypermobility, Menorrhagia, Fibroids, Psoriasis, Lichen Sclerosus; Anaemia, Dense breast tissue and fibroadenomas, Chronic back pain; and Mobility and/or joint issues when she started her apprenticeship. [CWS8][29]The Claimant’s evidence was that at her interview in July 2019 with Neil Richardson and Victoria Saunders, she disclosed that the previous work she did, making handmade jewellery, impacted her joints [CWS12]. We find even though the Claimant was diagnosed with Hypermobility in 2018 [MB304], there is no record of any comments relating to the Claimant’s joints being impacted in the notes of the interview [239-246] and the Claimant’s evidence is that at the time of her interview her disabilities did not have a detrimental impact on her day to day activities [WSC13]. The Claimant’s evidence was that “it remains my position that at that stage, my disabilities did not have a detrimental impact on my day-to-day activities and were being managed well” [paragraph 13, witness statement of Claimant ‘WSC’][30]We find there would have been no reason for the Claimant to have mentioned anything about her conditions at the application stage of her employment or interview, as by her own evidence, they did not impact her detrimentally. We find that the Claimant did not mention anything about her health conditions to the Respondent at that stage.[31]The Claimant was required to go through an occupational health (“OH”) referral as part of the apprenticeship recruitment. The Claimant completed a pre-employment health check [284]. However, it is notable that the Claimant does not say that she disclosed her disabilities in this preemployment questionnaire in her evidence, but just that any adjustments would be shared with her manager. Victoria Saunders’ evidence is that if the Claimant had disclosed any disabilities, she would have been informed and any accompanying adjustments as her manager, but she was not. We find that the Claimant did not disclose any of the conditions that she refers to in paragraph 8 of her witness statement in her pre-employment questionnaire; otherwise, she would have stated what she mentioned.[32]The Claimant said that she was required to undergo an assessment because she disclosed health conditions in her questionnaire, and to OH, who told her that she would inform the Claimant’s manager that she needed time off for medical appointments; however, we do not accept this evidence. The Claimant completed a new starter form [236-237], and a more detailed starter form was sent to Nicola Barnes in HR on 20 August 2019 by the Claimant [277]. On the same date, the Claimant received the health questionnaire. Yet in the emailed new starter document to the Respondent, the Claimant said “no” in response to the questions “considered disabled”, “long standing illness or health condition”, “other condition”. [279] Furthermore, this document was checked by HR on 19 September 2019, and there were no changes made to the answers to the questions regarding the Claimant’s health even though the document was checked after the Claimant completed her pre-employment health questionnaire and the occupational health report was sent to Nicola Barnes on 5 September 2019 [292]. Furthermore there was no evidence and neither does the Claimant say that the disclosure of the Claimant’s self-declared disabilities to Oakland College [295] was passed on to the Respondent. We find that it was not.[33]At a GP visit on 6 October 2020 the Claimant complained of low back pain but the GP reports that the Claimant could walk with no pain [MB319][34]The Claimant had a blue badge issued to her on a document that had a date of 9 October 2019 [MB80]. However, it is unclear whether this is the date the document was created or what the date relates to. The Claimant’s evidence is that she brought this to Victoria Saunders’ attention on 7 November 2019 [CWS42] during a meeting. This meeting was a performance and development goal setting meeting. In the notes of the meeting [309-312], the Claimant has handwritten in the mid-year progress review section of the document “discussed health and disabilities and disability badge with Vicky” [312]. However, Victoria Saunders was on maternity leave when the Claimant had her mid-year progress review. We note there is nothing in the manager's comments section, nor was it signed. There was no evidence that the Claimant had sent Victoria Saunders this document with this section completed in November 2019. Victoria Saunders’ evidence was that the original version did not have the comments, although the Respondent did not produce an original version in the bundle. Victoria Saunders’ evidence is that even if the mid-year review was done by a manager, she believed that it would have been Neil Richardson. She would have expected to see more in the review document and for the section in question to be signed by the manager. At the grievance investigation, Neil Richardson confirmed that “he could only locate a hard copy of the Claimant’s PMDS for 19/20 that JN e-mailed to me on 9th January which I assume was as a result of an earlier discussion. This hard copy does not have the commentary that is on the scanned copy you have provided to me.” [1390] The Claimant’s case is that the notes of the meeting on 7 November 2019 stated that the Claimant was “registered disabled”, but there is no record of these notes stating this [Claimant’s case paragraph 22, [102]]. We prefer the evidence of Victoria Saunders. Neil Richardson's evidence is that he could not remember when he knew about the Claimant’s blue badge, as he had heard about it during the proceedings. We find that the Claimant did not send this version to Victoria Saunders, and the Claimant’s disability blue badge and disabilities were not discussed at the 7 November 2019 meeting.[35]The Claimant said that she was diagnosed first with Hashimoto's Thyroiditis on 6 September 2019 [CWS18] and that she was prescribed levothyroxine. However, the diagnosis on 6 September 2019, when the Claimant was prescribed levothyroxine [332], is a diagnosis of hypothyroidism.[MB333]. We find that the Claimant had not been diagnosed with Hashimoto's Thyroiditis, which we understand to be a different condition from hypothyroidism. However, there is no evidence at that stage of how the hypothyroidism affected the Claimant’s day to day activities. The Claimant’s evidence is that it leads to symptoms of an underactive thyroid gland, such as tiredness, weight gain and dry skin. However, there is no evidence that the Claimant reported such symptoms to her GP as affecting her life in respect of her hypothyroidism. Although the Claimant complains of tiredness (e.g. 16 May 2019 [MB335], 12 May 2020 [MB324], 12 January 2021 [MB312]). There is no specific reference to the symptoms of tiredness as attributable to hypothyroidism. However, we find that the Claimant was on medication for her thyroiditis, which would have reduced the likelihood of the Claimant reporting tiredness as a result of the thyroiditis. We accept the Claimant’s oral evidence that fatigue made reading difficult and was a strain on her eyes, which caused headaches and that the fatigue meant that she was not able to do more site visits.[36]In February 2020, the GP notes report that the Claimant lost 2kg [328]. On 28 July 2020, the Claimant reported that she had gained weight since August 2019. In April/May 2020, she said that she was 49 kg, but the GP’s comment was that it was “unlikely [due to] suddenly Hypothyroid” [322]. On 30 July 2020, the Claimant weighed 49.5 kg [321-322]. The Claimant mentioned in her oral evidence for the first time that she had weight gain in June-July 2021.[37]Furthermore, there is no evidence at that stage that the Claimant told the Respondent of this diagnosis. The Claimant said that she told Victoria Saunders on 4 October 2019 of her Hashimoto’s Thyroiditis. However, Victoria Saunders’ evidence is that she did not. Although there is a reference to hospital appointments in an email on 2 October 2019, there is no reference to Hashimoto’s Thyroiditis [302]. We find that the Claimant did not tell Victoria Saunders about a diagnosis of Hashimoto's Thyroiditis on 4 October 2019. We find that there the Claimant reported in GP notes are on 14 July 2021 [447] that she wanted a thyroid function test as she had gained weight and her hair was thinning, this was not a diagnosis and before that on 8 June 2021 [MB451] the Claimant complained of weight gain due to the reduction of dose medication and after that on 10 August 2021 [MB 445-446] the Claimant told her GP that she thought that she had lipoedema due to weight gain. The GP’s notes indicate that the Claimant’s weight fluctuates within the normal range expected. We find there is no evidence of an impact of weight gain or thinning hair on the Claimant’s day to day activities from 2019 to June 2021. We find that the Claimant did tell Victoria Saunders about her thyroid issues just before she went on maternity leave, and that she experienced tiredness, which breaks helped with.[38]The Claimant was off sick on 23 September 2019; however, this affected the Claimant’s attendance at college at that stage but not at work. Although the Claimant attended work on 25-26 September 2019, the Claimant became unwell again on 27 September 2019. The Claimant did not provide any explanation for the reason why she was off sick. [1507] The Claimant had a hospital appointment on 30 September 2019 and emailed Victoria Saunders on Tuesday 1 October 2019, stating “sorry I did not update you earlier” [302]. The Claimant explained in the email that she had a bad reaction to the stuff that she was given at the hospital [303]. The Claimant’s evidence was that at a meeting on 4 October 2019, she told Victoria Saunders that she had suffered an anaphylactic shock from a bad reaction to an iron infusion. However, we find that at that stage, no further information was given to the Respondent regarding the Claimant’s health conditions. The Claimant was being given iron infusions in relation to her anaemia. The Respondent knew that the Claimant was attending the hospital for some investigation, but the Claimant’s absence from work appeared to be due to the bad reaction; her time off work was not related to the disabilities that the Claimant is complaining of.[39]The Claimant’s evidence is that when she returned to work on 4 October 2019, she had a meeting with Victoria Saunders, where she says that she told Victoria Saunders how her conditions affected her on a day to day basis. We do not accept this evidence of the Claimant. If that were the case, there would have been a record of this, and Victoria Saunders would have acted on this information. We accept that the Claimant’s evidence that she did tell Victoria Saunders about her anaphylactic shock due to an adverse reaction to an iron infusion on 9 September 2019 at this meeting. The Claimant was off sick for ½ a day on 25 October 2019 and for a day on 28 October 2019 due to nutritional/metabolic reasons. [1507][40]The Claimant had her first probationary meeting with Victoria Saunders on 31 October 2019. At that meeting, the Claimant said that she discussed her health issues in detail with Victoria Saunders. The notes of the meeting [304-305] make one reference to the Claimant’s health, stating in the employee’s comments regarding the contents of the probationary review box, “will keep TL updated on ongoing health issues” [305]. However, Victoria Saunders’ evidence is that at that meeting all that the Claimant said was that she would keep her updated on her health issues and that she did not think it was proper for her to prod the Claimant any further. At this point, the Claimant and Victoria Saunders were both working in the office, and Victoria Saunders’ evidence was that she would have expected the Claimant to tell her if there was something wrong in terms of anything that she might need. We accept Victoria Saunders’ evidence. In the grievance investigation meeting, Victoria Saunders, when asked about the 31 October 2019 meeting she said that the Claimant “would not disclose her health conditions for a long time, she said that she was under investigation and I did not want to push at the time.” [929] We find that by the end of October 2019; the Claimant had been attending hospital appointments, which she had kept Victoria Saunders informed of. Victoria Saunders knew that there was an investigation into the Claimant’s health, but Victoria Saunders did not have any details because the Claimant did not provide her with any details at that point.[41]It isn’t until 14 November 2019 that Professor Tahir writes following a clinic visit by the Claimant, “I believe she has hypermobile EDS” [MB15]. Professor Tahir writes, “she is mainly troubled with the chronic pain aspect of this with quite significant pains, tiredness and poor sleep pattern”. She is irritable at times, has poor concentration.” [MB15]. Professor Tahir advises the Claimant as to what it is and what she should do to treat it. But no medication was prescribed at that time. The Claimant’s evidence is that after the meeting on 11 May 2021, her joints were inflamed and swollen, and her jaw was incredibly painful and she had increased fatigue.[42]Hypermobility is mentioned in the Claimant’s records as early as 2 November 2018 [MB250-251]. However, the Claimant mentions to Professor Tahir that her joint symptoms are different to her normal EhlersDanlos Syndrome (‘EDS’) symptoms at a phone consultation on 28 June 2021 [MB289]. The Claimant said that she “feels a bit stiff” [MB289], and it was her hands that were the most symptomatic. We find that this is distinct from the Claimant’s diagnosis of Hypermobile Ehlers-Danlos Syndrome and that the hypermobility appears focused on the Claimant’s hands, as mentioned in 2018, it was also in relation to the Claimant’s fingers [MB21]. On 7 October 2020, the Claimant told her the Lymphoma/ Haematology Nurse Specialist that she was still finding it difficult to bend or pick things up, and even sitting was extremely difficult, and she was unable to drive [MB17]. We find that the Hypermobility affects her hands and affects her ability to use a pen as she gets hand spasms [paragraph 39, p79], her ability to get dressed in the morning [paragraph 44, p79]. The hypermobility is synonymous with the Claimant’s Hypermobile EhlersDanlos syndrome.[43]The first mention of the Claimant suffering from back pain since the Claimant started her apprenticeship is on 26 June 2020, when the Claimant mentioned to her GP that she had, in the last 10 days, some lower back pain not associated with activity. However, it isn’t until 7 October 2020 at a GP visit does the Claimant say that “the ongoing pains are quite constant”, “Sitting/resting severe” pain, and the Claimant said she “Struggle[s] to do upstairs easily and making walking difficult” [MB318]. The GP records report that the reference to low back pain on 7 October 2020 was classified as “minor past” [MB304]. The Claimant was off sick from 19 August- 2 September 2020. The Claimant’s sick note on 19 August 2020 says the reason for absence is “back pain” [MB78 & 180]. Furthermore, the Claimant was off sick from 3-13 November 2020. This time, the Claimant’s sick note on 3 November 2020 stated the reason for absence as “severe back pain” [MB179]. The Claimant had more time off between 13-27 November 2020, where her sick note on 13 November 2020 [MB75] said again “severe back pain”. The Claimant’s back pain was still ongoing on 25 January 2021 following an MRI scan on 25 January 2021. However, the results of the Claimant’s MRI scan on 25 January 2021, are that there was no significant compression or stenosis (that is, there is no indication of narrowing) [MB388-389]. Although the Claimant said at that GP appointment on 2 February 2021 that “the ongoing pain is affecting her life”, she does not specifically refer to back pain. [MB311].[44]We find that the Claimant did not suffer from chronic back pain long term. But the Claimant does not complain about back pain after the MRI appointment on 25 January 2021 to her doctors. The chronic back pain does not continue for 12 months.[45]The Claimant’s evidence was that it was not just one disability that had an effect, but her disabilities in combination. However, we find that there was no medical evidence to support the Claimant’s assertion. It was unclear to us how this manifested, and the Claimant did not provide evidence as to how she said her disabilities worked in combination.[46]The Claimant first mentioned to her GP on 14 October 2021 that she felt she had Lichen Sclerosus. However, the Claimant’s oral evidence was that it was in June-July 2021 that her Lichen Sclerosus became itchy. The Claimant mentions in her disability impact statement [76], paragraph 6, that she has her Lichen Sclerosus that causes severe itching, that it is extremely uncomfortable to wear underwear and when going to the toilet and that after urination the itch is significantly worse and that her skin becomes damaged and often bleeds and it is extremely sensitive and sore also including sores and little bumps. She says that this is extremely painful and makes it hard to sit comfortably. However, the first reporting of itching in the ‘private area’ is in September 2021 [MB443]. The Claimant is examined and the area is described as pale and skin thin and extends to the back passage. However, the GP questions the Lichen Sclerosus diagnosis. The Claimant is referred to the ‘private area’ clinic; however, the only evidence of any diagnosis or outcome of the ‘private area’ clinic is on 14 October 2021, when the Claimant referred to having seen a gynaecologist who felt that she had Lichen Sclerosus. The Claimant said in her disability impact statement that she used Dermovate cream in order to treat her Lichen Sclerosus [84]. However, we note that the Claimant does not suggest that this cream is prescribed for her Lichen Sclerosus, and there is no specific reference to Lichen Sclerosus in her list of medications for her conditions [MB300-303]. In fact, in the list of medications that the Claimant suggests, one of the side effects of the use of Dermovate is to cause her to itch [MB303]. However, we find that the Claimant makes no reference to her disability impact statement in her witness statement at all. The Claimant makes no mention in her 92 page witness statement of how this condition impacts her day to day activities, nor does she reference her disability impact statement. The GP examination seems to suggest that there is no evidence of constant itchy as the skin is pale and the GP questions the Lichen Sclerosus diagnosis. We accept Neil Richardson’s evidence that the Claimant never mentioned itching at work. We find that the Claimant’s inconsistent evidence regarding this condition, lack of medical diagnosis or prescription mentioning this, suggests that there is no significant impact on the Claimant’s day to day activities in respect of the symptoms of her proposed Lichen Sclerosus.[47]The Claimant was first diagnosed with Psoriasis on 5 February 2020. The Claimant’s psoriasis is in respect of her scalp [MB61], and Dr Asif Kamal states that the rest of the Claimant’s skin was ok. The Claimant is prescribed Diprosalic scalp lotion and Capasal scalp shampoo. On 17 June 2021, during a GP consultation, the Claimant confirmed that she was using Capasal and Dovobet as treatment. The Claimant said that she cannot wear dark clothes because of the white flakes from the psoriasis. The Claimant said that she has had the condition for 10 years [MB450]. The Claimant’s evidence is that it causes intensified itching and hinders her skin's healing process. [CWS443] However, we find the Claimant’s medical notes do not refer to the condition at all before February 2020. The Claimant says at a GP visit on 15 June 2021 that she is experiencing bad psoriasis at that time on 15 June 2021 [MB450]. However, when the Claimant was examined in June 2021, the description of what the Doctor said of the plaque on the Claimant’s scalp does not appear to be anything more than minor and appears to be wrapped up with the Claimant’s own diagnosis of Lichen Sclerosus. On 6 July 2021, there is a diagnosis of urticaria/psoriasis/eczema in relation to an inflammatory episode the Claimant was experiencing [MB448]. Although the condition is referred to in her sick certificates, there is no accompanying medical evidence to support what the Claimant alleges regarding her psoriasis. In the Claimant’s written evidence, she said that the condition had gotten worse since 2019 [CWS443], but again, there was no medical evidence to support this. We find that the Claimant’s evidence is unreliable and we do not accept that the Claimant’s psoriasis was anything more than minor.[48]The Claimant had been complaining about joint aches since February 2017 [MB350]. The Claimant complained of joint pain at GP visits on 10 August 2018 [MB340], 11 September 2018 [MB338], and 24 September 2019 [332]. On 14 November 2019, the Claimant was diagnosed with Hypermobile Ehlers-Danlos Syndrome by Professor Tahir [MB250-251]. Professor Tahir and the Claimant made a decision to hold off on prescribing medication at that stage. Instead, Professor Tahir recommended physio to help the Claimant manage her symptoms[MB15]. At a GP appointment on 17 February 2020, the Claimant complained that her joint pain had been worse recently and she requested stronger analgesia [MB328]. At a GP examination on 29 February 2020, the Claimant complained of general symptoms of the previous 2 months of having joint pains and tiredness, and her joint pain was worse than usual. The Claimant explained that she was trying to push herself and then came crashing down [MB328]. In a GP telephone appointment on 3 November 2020, the Claimant told her GP that she had early morning stiffness and that it was affecting her activities of daily living; she walked with the help of a stick [317]. On 31 August 2021, the Claimant reported joint pains and tiredness [MB445]. On 5 October 2021 [MB440], the Claimant complained at a telephone GP appointment that she had symptoms of joint pain.[49]In evidence, the Claimant referenced Victoria Saunders, acknowledging that the Claimant told her about her issues with joints just before she went on maternity leave and that regular breaks would help. The Claimant said that Victoria Saunders responded at the time that she was permitted to take breaks. Victoria Saunders’ evidence was that the Claimant was told that she was flexible about the Claimant’s start and finish times and that she could take breaks at any time. Victoria Saunders stated in oral evidence that the Claimant did not tell her of any of her health conditions, but only that she was being investigated regarding her conditions. Victoria Saunders said that she only learnt of the Claimant’s joint pains just before she went on maternity leave in January 2020. We accept Victoria Saunders’ evidence on this point. The Claimant accepted in evidence that she was not required to work full time contractual hours in her role as the Respondent had a flexi policy where they were required to work core hours of 10:00-16:00. The Claimant explained in oral evidence that although her start time was 08:00 she admitted that she would not be penalised in any way if she started at 10:00. She also said that she discussed start and finish times with Neil Richardson and he told her that there was no problem as long as she was getting the work done. We find that the Respondent did not require the Claimant to work her full contractual hours. We find that at that point the Respondent did not have enough information to be able to consider whether the Claimant’s joint pains were significant or of a long term nature or would impact her work.[50]The Claimant’s evidence was that her disabilities affected her at work, and that copying and pasting movements flared up her joints. The Claimant said that stress started to build up. The Claimant said that she found sitting in a normal chair made her more stiff in her hips, knees and hands because sitting in the normal chair affected the positioning of her hands. She said she would feel the effects at night, and she wouldn’t get a proper night’s sleep and would have fatigue during the day as a knock on effect. The Claimant said that the larger laptop would have helped, as it would have allowed her to move around and sit at her bed. She said that she spoke to Neil about this and that the small laptop was harder; this was because of the way the keyboard was laid out. She said that it also meant that because the screen was small, reading from that screen would cause her to get headaches and the same applied to College.[51]Following a meeting on 12 March 2020, where the Claimant says she informed Neil Richardson of excessive pain in fingers, wrists, elbows and in her shoulder, Neil Richardson told the Claimant that she could go on the Respondent’s website to request any equipment that might assist her in her role. On 13 March 2020, the Claimant requested an ergonomic mouse and a keyboard [330]. The Claimant referred to a ‘joint disorder’ [330] in completing the ICT equipment requests and returns form. The Claimant accepted in evidence that she didn’t ask for anything else from Neil Richardson, and there were a number of things she could have ordered on the website. The Claimant said that the ergonomic mouse and keyboard were too big for her desk at home, but she did not tell anyone at the time that it was not effective.[52]On 7 November 2019, the Claimant had a PMDS (Performance Management and Development Scheme) meeting. As part of that meeting, the Claimant discussed her objectives for her apprenticeship role. one of the Claimant’s objectives was “maintain evidence of apprentices portfolio in year and update regularly” [311]. We find that the Claimant’s objectives were the same for the other apprentice Fabian Marshall Joseph in this respect as the objective refers to apprentices (plural). We accept Victoria Saunders’ evidence that the purpose of the portfolio was to complete the NVQ.[53]We find that it was reasonable for the Respondent in November 2019 to wait until the Claimant told them about the outcome of her hospital investigations in order to identify what was wrong with her and how she might be helped. We accept Victoria Saunders’ evidence that at that time she was not one to challenge about her health. She did not consider it her responsibility to do that, and she would expect the employee to let her know. The Claimant did not tell her for a long while what her symptoms were. The Claimant did not tell Victoria Saunders what her hospital appointments were for. We find that the Claimant attended a hospital appointment in respect her thyroiditis on 2 December 2021 [102] and 9 December 2021 [124]. However, almost none of the hospital appointments that the Claimant attended from 2020-2021 (that we had evidence for) related to the Claimant’s Ehlers-Danos Syndrome and most related to the investigation of other conditions. The Claimant did not give any evidence on attending appointments in relation to either thyroiditis or Ehlers-Danos Syndrome and or joint pain during her employment.[54]The Claimant was on annual leave from 18 November- 16 December 2019. The Claimant returned from annual leave on 17 December 2019. In the two week gap when the Claimant came back from annual leave, the Claimant discussed her health conditions with the Respondent [CWS32]. Victoria Saunders accepted in her grievance investigation that “When she eventually told me, just before my maternity leave, JN mentioned a couple of health issues in relation to anaemia, thyroid issues and issues with joints. She said taking regular breaks would help, I have always said she can do this.” [934] On 3 January 2020 [930], Victoria Saunders went on maternity leave, which was approximately 2 weeks after the Claimant’s return from annual leave. Victoria Saunders returned from maternity leave on 5 October 2020 [929]. Victoria Saunders' evidence was that the last time she physically saw the Claimant in person before she went on her first maternity leave, and then on Teams, the Claimant wouldn’t have her camera, so she didn’t see her until she was dismissed. Neil Richardson’s evidence that he had not seen the Claimant since the lockdown. Neil Richardson’s evidence was that whenever he had meetings with the Claimant her camera was off. We find that the Claimant’s managers had no indication of the Claimant’s health other than what she told them, as they did not see her when her health deteriorated. However, we do find that once Victoria knew of the Claimant’s specific health conditions of joint issues and thyroid issues, which was 2 weeks before she went on maternity leave, the Respondent had knowledge of those disabilities of the Claimant.[55]Following Victoria Saunders going on maternity leave, Neil Richardson took over line management of the Claimant. Victoria Saunders had to go off on maternity leave earlier than she had planned, and so there was not a full discussion of the Claimant before Victoria Saunders went on maternity leave. Although Victoria Saunders did start discussing the whole team with Neil Richardson before she left on maternity leave. Neil Richardson was employed directly by the Respondent, whilst Victoria Saunders was not. Victoria Saunders never had access to the Respondent’s HR personnel system ‘SAP’ and would have to ask Neil Richardson to input information about the Claimant and her apprentices’ colleagues, such as annual leave and sickness. As a result, Neil Richardson did have some prior knowledge of the Claimant’s sickness and health concerns.[56]On 9 January 2020, the Claimant had her second and final probationary meeting with Neil Richardson. Following this meeting, Neil Richardson confirmed the Claimant’s successful completion of probation by letter dated 6 February 2020 [318]. We find that at this point and until March 2020, there was no requirement for the Claimant to complete her NVQ portfolio at any particular time. This is because we accept Victoria Saunders’ evidence that it is not until October 2020 that the Claimant was being asked for a progress report. Buddying up[57]At a meeting on 21 February 2020, Neil Richardson told the Claimant he was working on setting up the Claimant to shadow other colleagues. However, the Claimant never heard anything from Neil Richardson about this. On 26 February 2020, and during the departmental team meeting, Neil Richardson indicated that he would be seeking to buddy the apprentices up with project managers. Neil Richardson accepted that he did say this at the meeting because he had not had a proper handover with Victoria Saunders when she went on maternity leave, as he was not sure that Victoria Saunders had put buddies in place before she left. Fabian Marshall-Joseph said in the grievance investigation that he was buddied up in September 2020 [1032]. However, Victoria Saunders’ evidence was that the apprentices were not buddied up until after she returned from maternity leave in October 2020, as there had been no buddying up in her absence. We prefer the evidence of Victoria Saunders, as Neil Richardson conceded in his evidence that he left it to the PM to make the buddying up arrangements, and he didn’t know if they did, and he did not get back to the Claimant about the arrangements with the PMs that he had made.[58]The Claimant also complained to Neil Richardson at that meeting on 21 February 2020 that she was not receiving challenging work. The Claimant’s oral evidence was that the need for variation was in relation to her NVQ work. However, when the Claimant raised this issue with Neil Richardson on 21 February 2020 and on subsequent occasions, on 18 June 2021 [828], the Respondent did make this accommodation when the Claimant raised it at the 11 May 2021 meeting [679]. The Claimant did not mention that she needed the variation in order to evidence her NVQ portfolio at the time. We do not accept that evidence because the Claimant did not mention it at the time. However, the Claimant did say in her email dated 11 June 2021 [827] “As discussed with you yesterday, I have not at any stage asked for a reduction in my workload but rather a request for more variation as the repetitive nature of the tasks exacerbate my joints.”.[59]At the meeting on 12 March 2020, Neil Richardson offered the Claimant the opportunity to work from home when she felt unwell.[60]On 16 March 2020, Neil Richardson sent the Claimant and her apprenticeship colleagues a Guardian 24 form to complete. The reason Neil Richardson sent this form was because there was an app that staff were expected to use when lone working. The apprentices might be lone working when on a site visit. The Claimant returned the form to Neil Richardson on 17 March 2020, completed [326]. The Claimant mentioned in the G24 Lone worker support form dated 17 March 2020 [327] in response to the question medical information (allergies, health issues) “Allergic to Monofer- iron infusion and bee stings- Health Issues: 1. Anaemic 2. Psoriasis 3. Hypothyroidism 4. HEDS- Hypermobile EhlersDanlos Syndrome” [327-328]. The Claimant’s evidence was that this form was accessible on her HR file. However, the Claimant did not explain when she sent this document to HR or in fact state that she did send this form or why Neil Richardson would have looked at her personnel file for any reason in March 2020. Neil Richardson's oral evidence was that he could not recall whether he read the Claimant’s completed form at the time, but he did not recall reading the form in detail. Neil Richardson said that he would have passed on the information to the Highway support team, who were managing the lone person app. Neil Richardson said that he did not view the health information as something for him to act on, and he didn’t think it would be something that would prevent the Claimant from going to Site. It did not occur to him to refer the Claimant to Occupational Health. He said there was no reason for him to respond to the Claimant when she sent him the form. Neil Richardson said at that point in March 2020, there was nothing to him that indicated that the Claimant’s performance would be affected other than her absences. The Claimant was working from home from 18 March 2020, and up until that point, the Claimant had been driving as the Claimant’s evidence was that she was driving less after 18 March 2020 [CWS62], which we accept. Neil Richardson believed that the Claimant had given the information for medical emergencies and that he expected the employee to say if the conditions affected their work. Neil Richardson acknowledged that he did know about the Claimant having problems with tiredness and being slow. We accept Neil Richardson's evidence, and we find that the G24 form was not in the Claimant’s personnel file in March 2020. Neil Richardson did see the document when it was sent to him, but he did not recognise the significance of the information contained in it. Victoria Saunders, who was on maternity leave in March 2020, did not see the document at any point until the disclosure process in these proceedings.[61]From 18 March 2020, the Claimant was advised to work from home due to government guidance regarding COVID-19 [ET1-29 [34], WSC61]. We find from 18 March 2020, the Claimant worked from home and did not return to the workplace. Site visits[62]During COVID from March-October 2020, the Claimant and Fabian Marshall-Joseph did not carry out site visits and site visits were only carried out by other engineers where it was an emergency. However, before lockdown, there were a number of entries in 2019, for example, 12 September 2019 [1640] when Fabian Marshall-Joseph went on a site visit, and there is no record of the Claimant attending that site visit. On 9 October 2019 [1644], the Claimant and Mr Marshall-Joseph attended a site visit together. On 11 November 2019 [1648], both Mr Marshall-Joseph and the Claimant attended a site visit, [1655 & 307-307]. In Fabian Marshall-Joseph’s grievance interview in response to the question of how visits were arranged at the beginning of the apprenticeship and how many did he attend, Mr Marshall-Joseph stated, “I would say that I did attend a few site visits without Jheshalya at the start of the apprenticeship. I think that they were just arranged by one of the project managers asking me whether I wanted to come out with them. I think it was quite spontaneous as well so I wouldn’t know I was going out at the beginning of the day. I would just come into the office and maybe around 11 o clock – one of the project manners would be like, do you want to accompany me on a footway micro-site walk and I would say yes and if I was busy, I would say no but generally, I said yes and I went on 1:1 with the project manager. I attended less than 5 site visits.” [1266]. We find that the opportunities to attend Site for Mr Marshall-Joseph were handled spontaneously and not pre-arranged. The Claimant could have attended these site visits had she been in the office at the same time as Mr Marshall-Joseph. In September 2019, the Claimant was able to attend the office and did attend the office. The Respondent did not know about the Claimant’s disability in September 2019.[63]The Claimant’s evidence is that in January 2020, she would see Fabian Marshall-Joseph putting on PPE, and when she asked him where he was going, she said that he told her he was going on a site visit. The Claimant’s evidence is that the only time she went on a site visit was when she requested this from Stephanie Dodd, who was a senior engineer. The Claimant referred to the site register in her evidence, where it can be seen that Fabian Marshall-Joseph did a site visit on his own on 15 January [1654] & 16 January 2020 [1655], but the Claimant did a site visit on 30 January 2020 on her own [1656]. In February 2020, Fabian MarshallJoseph had site visits on 6 February with the Claimant [1659], 18 and 27 February 2020 alone. We find that Fabian Marshall-Joseph did have 2 more site visits than the Claimant in this period.[64]The Claimant accepted that she had thought that Ms Marshall was an apprentice but did not know what contract of employment she had. We find that Ms Marshall was not on an apprenticeship contract but had a different role that required her to carry out site visits, and so we do not consider that her site visits are relevant. The Claimant did not provide any evidence to say that in January-March 2020, she could not drive or commute to site visits, and we find that the Claimant could still drive and commute to site visits in this period. The Claimant accepted in evidence that Fabian Marshall-Joseph did not do any site visits between MarchSeptember 2020. We find that the reason why Fabian Marshall-Joseph got more site visits in 2020 was because he was invited to attend site visits spontaneously. The Claimant gave evidence that she was not working from home prior to March 2020. In the Claimant’s interview regarding her grievance, the Claimant said that when asked about what she meant by the failure to give to the College, “the only thing done was that Ellie taught Fabian and myself to do some admin tasks, it was pretty much copy and paste. I got to go to site, it was not planned, it was approximately 3 times prior to Covid. 3 times is not sufficient, it happened a lot on days when I was in hospital, they would say who wants to come along, it was not planned. “ [1003][65]We find on a balance of probabilities that the Claimant was in the office at the same time as Mr Marshall-Joseph, and it was not a case that site visits were being offered to Mr Marshall-Joseph but not the Claimant, as the Claimant and Fabian Marshall-Joseph interviews are consistent on this point. If the Claimant wasn’t there, it was due to investigatory hospital appointments that were not related to the Claimant’s EDS/ Joint pain or thyroiditis. There was no evidence that the Claimant’s health had anything to do with her not being invited to the site visits. The site visit shows visits where the Claimant did attend site visits with Fabian. Had the Claimant been around at the right time she would have been invited along like Mr Marshall-Joseph, and they both would have gone on a site visit as is evident from the site register. We find that the Claimant was not offered less opportunities than the Fabian Marshall-Joseph to attend site visits.[66]By email dated 14 May 2020, Neil Richardson sent the Claimant an email titled “Hi How are you doing” and asked the Claimant in the email let me know if you are worried about anything” [334]. In oral evidence, when it was put to her that the Claimant did not raise any concerns with Neil Richardson, the Claimant accepted that she did not. We find that if the Claimant was concerned at that time about reasonable adjustments that needed to be made, the Claimant would have raised the matter with Neil Richardson but she did not. There were no reasonable adjustments that could be made at that time that the Claimant did not already have.[67]On 10 August 2020, Fabian Marshall-Joseph emailed Neil Richardson to confirm that he had failed his driving test but was hoping to take it again in two weeks. In Fabian Marshall-Joseph's investigation interview on 5 September 2022 [1032], he says in relation to site visits, “I drove there in person on my own. To begin with in the first six months, I went out once or twice and did a lift share, after that I drove in my own vehicle.” [1032]. By June 2021, Victoria Saunders confirmed that, other than the Claimant, both apprentices are driving, which included Fabian Marshall-Joseph. We find that, on a balance of probabilities, in March 2021, Fabian MarshallJoseph was able to drive.[68]We find that the Respondent did not know that the Claimant could not commute to site visits until March 2021, when they received the OHU report. The Claimant had been driving to site visits in 2019 and early 2020 and had attended site visits in January & February 2020 without issue. The Claimant and Fabian Marshall-Joseph did not attend site visits again until after October 2020. The Claimant accepted in evidence that during the working from home period from March-October 2020, during which Neil Richardson managed the Claimant, the Claimant enjoyed the role, save for repetitive tasks; there was no cause for concern in respect of the Claimant’s ability to do her job or pass her course.[69]Victoria Saunders returned from maternity leave in October 2020. On 2 November 2020, the College emailed Victoria Saunders that they were having issues with the Claimant’s attendance and late submission of assignments [428-429]. The Claimant sent an email dated 3 November 2020 to Victoria Saunders [431-432], in which the Claimant stated that she was extremely unwell and she wasn’t sure what was wrong. The Claimant stated that she was reluctant to disclose her health issues to a new person and that Neil and Victoria had been extremely supportive and understanding of her [433]. Victoria Saunders responded to the Claimant that she needed her health information from a health and safety point of view and would need to understand what was going on, and that Neil Richardson had not provided her with information about the Claimant’s health [432]. Victoria Saunders referred to having one 2 ones with the Claimant at this time [432].[70]The Claimant confirmed in her email response dated 8 November 2020, that she would prefer to discuss all health related issues and sickness with Victoria Saunders or Neil Richardson [430]. The Claimant attached a sick certificate dated 3 November 2020 stating “severe back pain” until 13 November 2020 [422]. In the email on 8 November 2020, the Claimant said there are no health and safety concerns as they are not attending Site, but it may be necessary when they return to Site [430]. In the email, the Claimant refers to the College failing in respect of neglecting the Claimant’s disabilities and refers to the Claimant failing to identify reasonable adjustments that need to be made, and that she finds it frustrating for her to have to defend her disabilities to the College. The Claimant said that she was not attending college initially due to the disgusting treatment she experienced from Steve Atherton, and then it was because of health issues, including her back pain. The Claimant said that her condition had significantly worsened and she was trialling medications which had exacerbated rather than resolved issues. The Claimant had been attending classes remotely like all other students during the COVID pandemic. The Claimant’s evidence was that she was attending classes remotely in November 2020 as well [CW98].[71]On 9 October 2020, the Claimant submitted a complaint against the College. The Respondent submitted a complaint on her behalf. The Claimant’s evidence was that she did not receive an update and or support from the College and that it is through this period that her health began to deteriorate. We find that it was the complaint against the College that was a trigger for the Claimant’s stress and that, in turn, affected the Claimant’s health and exacerbated her health conditions.[72]The Claimant submitted to Victoria Saunders on 16 November 2020 [449] another sick certificate dated 13 November 2020 for severe back pain [439] stating that she would be off sick until 27 November 2020 [439].[73]We find there was nothing that put the Respondent on notice between October 2020- March 2021 that the Claimant could not attend site visits. In fact, the Claimant’s 8 November 2020 suggested that the Claimant believed that she would be able to attend the Site, although she would have to inform Victoria Saunders about any health and safety concerns.[74]As a result of the Claimant’s sickness absence, the Respondent’s managing ill health policy was triggered. The Respondent’s managing ill health policy [SB113-121] states “Managers will record, monitor and review sickness absence, and invoke a Health Review Meeting when absence levels reach a point where service delivery is affected, in line with the following prompts:• When there are three or more instances of absence in any rolling six month period• When an individual accumulates ten or more calendar days absence within any rolling six month period• When an absence appears to have a recognisable pattern, for example frequent absence around a weekend• When an employees’ sickness absence is for a continuous period of at least 28 calendar days• When there are a series of absences which impact on service delivery” [SB117][75]On 28 November 2020, Neil Richardson was sent an email from the Respondent’s automated system requesting that an ill health review meeting (aka HRM) to be carried out in respect of the Claimant as she had 3 or more instances of sickness absence in a rolling 6 month period and 10 or more calendar days of sickness absence within a rolling 6 month period [461]. The Claimant did not return to work until 27 November 2020, although on 14 December 2020, the Claimant said she was still unwell in her return to work interview, but the Claimant was working from home. On 8 December 2020, Neil Richardson received a return to work reminder and emailed Victoria Saunders to remind her to have a return work meeting with the Claimant [468-469]. On 14 December 2020, Victoria Saunders had a return to work meeting with the Claimant online [476-477]. Victoria Saunders asked the Claimant what she needed regarding work adjustments and asked her whether she needed a DSE/workstation assessment/ appropriate chair. Victoria Saunders stated in an email to Neil Richardson on the same day that the Claimant told her she just needed “breaks from sitting down” and that it was fine regarding the workstation assessment and chair [474]. The return to work form also records that the issue of site visits would be discussed in the new year and that they were still waiting to hear from the College regarding extension of time for assignments [477].[76]The Claimant was unwell again on 28 January 2021 due to a traumatic breast biopsy [486]. The Claimant submitted on 2 February 2021 a sick certificate dated 2 February 2021 [492-493] covering the period of 2 February-16 February 2021 [491]. The Claimant also submitted on or around 17 February a sick certificate dated 16 February 2021 [500] covering the period of 28 January-22 February 2021 [486]. However, the Claimant had the biopsy on 19 January 2021 and did not return to work after the biopsy in the intervening period before the Claimant’s sick certificate. The Claimant returned to work on 23 February 2021 [504]. On the Claimant’s return to work, Victoria Saunders had a return to work meeting with the Claimant on 24 February 2021 [507]. The Claimant agreed to an Occupational Health referral to see if anything could be done to support the Claimant [508]. By email dated 5 March 2021, the Claimant emailed Stephen Okoro, the assessor for the NVQ, to inform him that she was behind in respect of her portfolio and college work. The Claimant submitted a review form with that email, which was not complete [512].[77]On 24 February 2021, at a return to work meeting [507-508] the Claimant and Victoria Saunders discussed support in relation to the Claimant attending site visits when restrictions were lifted in relation to the COVID lockdown current at that time. In Victoria Saunders’ referral form dated 17 March 2021, Victoria Saunders asked the Occupational Health doctor to advise on whether the Claimant would be able to visit live sites [729]. The Claimant attended an occupational health appointment on 25 March 2021, where the occupational health report advised that the Claimant could not, at that time, attend Site. Following that Occupational Health advice, the Claimant had an HRM on 11 May 2021 [658]. Victoria Saunders explained that the purpose of the meeting was to see where the Claimant was with her college work and how she was doing [659].[78]The Claimant spoke about how the college is causing her stress. She said in the meeting, “ I think I'm more stressed out at the moment than anything else. I think together with college, erm it's always seems to be a fighting battle every single week with college and I'm already not feeling well and I already have to battle with doctors, hospital appointments, doing all of that together with fighting college, and I feel all the time I'm just constantly trying to prove that I'm ill or as if they don't believe me or I'm just never included, especially with Joan. Steve has been quite okay. “ [659] We find that in May 2021, the main source of the Claimant’s stress was the College and then additionally the Doctors’ inability to diagnose her and provide treatment and trying to prove that she was ill.[79]The Claimant then spoke about her difficulties in attending site visits explaining “But with regards to site visits, I feel that I can attend with reasonable adjustments, so maybe or even I don't know if it's a possibility, such as to even have someone attend and I can like see it on the phone like a video or something to that effect I can attend being in the car like I don't mind seeing or if I can attend with a walking stick or if some other kind of other adjustment can be made or that I can rest, maybe not walk as long so if there’s site visits are a bit shorter or where I can just kind of stand and watch cause I know the site visits I did previously prior to covid, we didn't do that much walking and we kind of just kind of have our PPE on and we just spoke to a couple of the people on site and we watched like the machines laying etc and it wasn't very taxing on my joints or anything like that. I don't remember those, but I'm not sure what other site visits there are…” [667][80]Victoria Saunders explained in the meeting that the Respondent could not ignore the OH report [669], the Claimant responded, “Yeah, so I know that my work will 100% be impacted by my health and I don't disagree with that” [669]. Victoria Saunders confirms that “… I needed to talk to you in terms of what you can do, because there will be site work in all of it that you'll then need to do in order to sort of become involved in more of the programmes in the financial aspect of it.” [668][81]The Claimant’s response included “yeah totally 100%” [668]. Victoria Saunders confirmed in the meeting that the NVQ cannot be completed without the Claimant going to Site, but that they would work around any college extensions that she might get and the Claimant feeling up to going to Site [670]. The Claimant concluded by saying that she hopes reasonable adjustments will work, but if her body doesn’t allow it, she cannot push herself [674] and that she wants to review the reasonable adjustments following the next Occupational Health meeting [674]. The Claimant agreed to a meeting to be set up with Adrian and Dave, who were project managers due to take her to site visits. In her oral evidence, the Claimant accepted that she did have meetings with Victoria Saunders or Cally Brown to identify the difficulties that she had, but said the meetings were not enough to avoid the disadvantage. We find that the Claimant did talk about her difficulties throughout the 11 May 2021 meeting in respect of any restrictions or reasonable adjustments she needed in order to complete her course or NVQ.[82]By email dated 23 February [550], HR advises Victoria Saunders that she needs to hold an HRM but hold off until the outcome of the Occupational Health referral. Victoria Saunders is told that the HRM is an opportunity to discuss the reason for absences and receive medical updates and explore the occupational health report together to discuss what support and reasonable adjustments are needed.[83]On 12 March 2021, Neil Richardson received another automated email regarding the Claimant’s sickness absence, which now included the Claimant’s absence from 20 January- 22 February 2021 [524]. Neil Richardson emailed Victoria Saunders on 15 March 2021 to enquire as to whether the ill health review meeting had as yet taken place [523]. Victoria Saunders responded to advise Neil Richardson that HR advised not to proceed with the HRM until after the Occupational Health had reported [523]. Occupational Health Report dated 25 March 2021[84]The Claimant was referred to Occupational Health on 17 March 2020 [525-527]. The referral form referred to the Claimant’s conditions as spinal pain, soft tissue injury, symptoms affecting any joints and traumatic injury [525]. The Claimant attended Occupational Health on 25 March 2021 [531]. The Occupational Health advisor reported “Miss Naidoo is at work with multiple health conditions and she has most recently has two breast biopsies, which are under further health investigation. Miss Naidoo has a diagnosis of anaemia, hypermobility, hypothyroidism, Ehlers–Danlos syndrome, psoriasis and she is under health investigations for suspected liver disease. Miss Naidoo experiences persistent joint pain, from the hypermobility and the hypothyroidism (underactive thyroid) has remained unstable, leading to issues with concentration, memory loss, regulation of temperature. The medication makes her feel nauseous. The weight gain has affected her mental wellbeing, leaving her feeling self conscious.” [531][85]The Occupational Health advisor, Ms Jayde Georgiou, suggested, “Miss Jheshalya Naidoo is currently at work and should remain on modified duties until 28/05/2021. If feasible, I would advise Miss Naidoo to continue working remotely until all health investigations have been concluded and there is an improvement in symptoms.” [531-532][86]The Occupational Health advisor advised that “My interpretation of the relevant UK legislation is that Miss Jheshalya Naidoo's condition of Ehlers–Danlos syndrome of is likely to be considered a disability” [532]. In terms of the outlook at that time, Ms Jayde Georgiou advised, “…. in my opinion Miss Naidoo would not be able to attend site until she has received further treatment. I have advised Miss. Naidoo on 'Access to work’ and advised her to self refer herself. They can provide further assessment on workplace adjustments, travel and aids. Miss Naidoo reports that she finds it hard to type when she experiences flare-ups of joint pain. I would advise for a DSE assessment as she may benefit from speech software (Dragon software), to allow her to complete VDU work. In the longer term, if the symptoms persist, Miss Naidoo may benefit from an adjustment in hours and flexible working may also be beneficial.” [532] The Occupational Health report referred to the Claimant being referred for physiotherapy and the rheumatologist needing to review the Claimant before physiotherapy could begin.[87]The Claimant remained working from home following the occupational health report and was ill on 1 April 2021 [536]. The Claimant was on leave from 5-9 April 2021 [535]. Victoria Saunders was having weekly one 2 ones with the Claimant at this time. Victoria Saunders received the occupational health report on 28 March and asked for advice from HR by email dated 6 April 2021 as she was of the view that some skills for the apprenticeship needed to be learnt on Site and could not be learned through desktop and was concerned that the Claimant would not finish the apprenticeship [539]. HR advised Victoria Saunders that an HRM should take place on 9 April 2021 [546]. We find that whilst Victoria Saunders was raising a concern about the Claimant’s ability to continue her work at that time, this was in the context of being told that the Claimant could not complete site visits, which was an intrinsic part of the Claimant’s apprenticeship and learning needed to take place on Site. We do not find that the email signifies that Victoria Saunders did not want to offer the Claimant employment with the Respondent but was seeking advice on what the available options were.[88]On the Claimant’s return from annual leave, the Claimant did not raise the issue of reasonable adjustments, nor did the Claimant advise Victoria Saunders that she had received the physiotherapist treatment. Meeting on 20 April 2021[89]On 14 March 2021, Victoria Saunders sent an invite to Mr MarshallJoseph and Ms Marshall to attend a meeting on 20 April 2021. [571] The Claimant said that she wasn’t invited or given the opportunity to attend the meeting on 20 April 2021. Victoria Saunders stated in the invite “Hi all hoping this time and date it suitable. Please let me know if not. Ele/ Fabian, I'm looking to buddy you both up with a PM not only to help the PM’s but also give you more responsibility of programmes and financial management to help with your portfolios and potential future roles within highways. Obv you will still be going out with other PM's to learn about all the treatments/ works we deliver but feel by undertaking this as well, it'll give you a great understanding of how a workstream functions. This will be as well as the current works you are helping with but we will discuss more in detail during the meeting. Thanks Vicky” [571]. We find that the meeting invite was an opportunity for the apprentices' attendees to progress their learning and development.[90]At the time that Victoria Saunders sent the email invite, she was in receipt of the occupational health report dated 25 March stating “ We discussed working on site and at present, in my opinion Miss Naidoo would not be able to attend site until she had received further treatment” [532][91]The Claimant found out about the 20 April 2021 meeting and sent an email to Victoria Saunders to ask for an explanation as to why she was not invited. Victoria Saunders responded to the Claimant’s email apologising for the delay in her response because she was on leave and explaining that the reason why the Claimant was not invited to the meeting on 20 April was because she was looking to buddy up the Claimant with other project managers, Adrian and David Gilkes [612].[92]Victoria Saunders explained in her oral evidence that the project managers with whom she had buddied Ellie and Fabian were doing a highway project that included a lot of measuring up. She had decided that the best fit for the Claimant was the carriageway programme as it was easier to mark and walk, and that the Claimant would go with senior engineers because of the breadth of their experience and knowledge. Victoria Saunders’ evidence was that she was guided by the occupational health report, which said that the Claimant needed to work from home and that the Claimant could not attend Site. Victoria Saunders thought that she had arranged for a buddying up meeting after the occupational health report dated 19 May 2021[746][93]The Claimant’s evidence [CWS115] was that had she been invited to the meeting, it would have offered opportunities to progress her learning and development, which her peers, Mr Marshall-Joseph and Ms Marshall, were able to obtain. In the Claimant’s email to Neil Richardson dated 7 May 2021 [609] the Claimant said that she was “ willing to give the benefit of the doubt” [608] to Victoria Saunders for her explanation that is cut and pasted into her email to Neil Richardson. The Claimant also accepted Victoria Saunders’ apology in the HRM on 11 May 2021 where Victoria Saunders states in the Respondent’s note of the meeting “ No worries obviously and obviously apologies for the meeting before, it obviously wasn’t meant nastily at all, it was, obviously, taking into account everything you know which has been going on with you and trying not to put everything on you so you know obviously, please accept my apology for that. It wasn't meant nastily” [680]. The Claimant responded, “yeah, thank you. I really really appreciate that and I didn't think it was any ill intentions, but it's just nice to clear things up an in future like I don't mind if anyone wants to talk to me about anything, even if it's difficult or uncomfortable. I'm here for all of those kind of things and if anyone wants to ask me any questions. You especially, or Neil or anyone. I'm more than happy to answer them and I really appreciate you saying that”. [680][94]The Claimant has her own note of what was said, which still included an acceptance of Victoria Saunders' apology; however, we do not regard that note as reliable, as it does not appear to include a full note of what the Claimant said before going on to the next question [632].[95]The Claimant’s evidence was that the meeting on 20 April was where the apprentices discussed their learning and development. They were also going to discuss being ‘buddied up’ in order to do more practical work [571]. The Claimant said in oral evidence that she considered the exclusion from the meeting on 20 April as discriminatory, which was her perception, and she was not involved in the discussion about future roles, which she said was also a purpose of the meeting. When it was put to her that she accepted Victoria Saunders' reason for not inviting her to the meeting at the time, the Claimant said that she did not accept it, and her reason was emails in April 2021, which she was not copied into, where Victoria Saunders was conversing with HR about the Claimant’s health issues. We do not accept the Claimant’s evidence; it is clear to us that at the time she accepted the reason and did not consider it discriminatory, and that the emails she referred to in her evidence only came into her possession after the meeting on 11 May 2021, when she made a DSAR on 18 May 2021 and 18 June 2021 [102]. We do not accept that the invite indicated that future roles were going to be discussed at the meeting, but rather the work that the apprentices were to be given in buddying up was an increase in responsibility, and that would help them with future roles. We find that the reason why Victoria Saunders did not invite the Claimant to the meeting on 20 April was because at the time of the invite Claimant could not attend site visits, pursuant to the occupational health report dated 25 March 2021. We accept Victoria Saunders’ evidence that it was always her intention to buddy the Claimant up with another project manager. We find that Victoria Saunders did not buddy up the Claimant in April 2021 because the point of buddying up was for the apprentices to shadow the engineers on Site, and the Claimant could not go out on Site at that time. The Claimant accepted in evidence that she was buddied up in June 2021. We find that this is because by June 2021, Victoria Saunders had received the 19 May 2021 occupational health report, which stated that “I would consider her fit to do site visits/inspections as long as they are limited to about 30 mins on-site and she avoids prolonged walking and any heavy lifting/pulling/pushing. She does use a walking stick outdoors and this is likely to assist her on visits the Claimant could attend site visits with reasonable adjustments.” [746][96]Furthermore, the Claimant accepted in evidence that she was not saying that the Respondent should have ignored the OH advice in the April 2021 occupational health report; however, she said that she discussed with Victoria Saunders that she did not agree with the occupational health report that she could not attend site visits in April 2021. The occupational health advisor stated in the 25 March 2021 report that, in her opinion, the Claimant would not be able to attend Site until she had received further treatment [532]. There was no evidence presented to us that the Claimant had received further treatment in April 2021. We do not accept the Claimant’s evidence that before Victoria Saunders sent the invite on 14 April 2021, she told Victoria Saunders that she didn’t agree with the occupational health report opinion on her attendance of site visits. We find that Victoria Saunders was following occupational health advice.[97]On 28 April 2021 Katey Skeggs asked Victoria Saunders about the position regarding the Claimant’s NVQ portfolio as she had been told by Victoria Saunders that the College had been in touch with her regarding concerns about the Claimant’s portfolio and Ms Skeggs asked Victoria Saunders where she had got to with the College providing an extension to allow the Claimant to complete the course.[594] Victoria Saunders responded that she was trying to speak to the College but had not yet. Victoria Saunders did speak to the College in a meeting on 25 May 2021 and was told that the Claimant could pause learning for 6 months; however, the Claimant was not interested in this pause.[98]The Claimant said that in oral evidence from March-May 2021, her medical conditions were being exacerbated by having to start the HRM process. We accept that the Claimant would have been stressed about the HRM process, as would any employee. The Claimant was sent the managing ill health policy with the letter [576] and the letter warned “I must make you aware that the meeting may result in you receiving a written warning (with the right to appeal) in accordance with the County Council’s Managing Ill Health policy and procedure”. The policy also explained ill health retirement [SB118] and provides links to further information. However, we consider that it was reasonable for the Respondent to have carried out the ill health process at this point as the Claimant’s sickness absence met the triggers of the policy. The Respondent held all the meetings on Teams, and it is clear from the notes of the meetings that if the Claimant needed a break, she would take one.[99]The Claimant said that during the period of March-May 2021, her joints became stiffer and more widespread spread affecting her bowel movements and mental state. The Claimant said that in this period she had issues with medications and had allergic reactions, which increased her doctor’s appointments. The Claimant said that this impacted her mental health, and it began to deteriorate. She experienced anxiety and low mood, and this compounded her ability to sleep. She said that she was not doing anything in her home. The Claimant said that she stopped walking the dog.[100]On 5 May 2021, Fabian Marshall-Joseph went to Site. Fabian MarshallJoseph’s next site visits were 23 July 2021 [1390] and 31 August 2021. Fabian Marshall-Joseph had 3 site visits in 2021. However, the Claimant also had a site visit on 15 July 2021. The Claimant went off sick from 22 July 2021 and so could not have attended the later 2 site visits with Mr Marshall-Joseph. We find that by the time the Claimant went off sick, Mr Marshall-Joseph had the same number of site visits. We find that the reason why the Claimant did not do as many site visits as Mr MarshallJoseph in 2021 was because she was off work sick and not in the workplace.[101]We find that the records show Mr Marshall-Joseph did 11 site visits in the entire period of the Claimant’s apprenticeship, and the Claimant did 5 site visits. There is evidence that the site register was not complete evidence of the site visits the Claimant undertook. We find it was not the case that after COVID, the Claimant did not attend any site visits. The investigation report explains that it was confirmed with David Gilkes that the Claimant attended a site visit where he took her in his own car on 15 July 2021 [1117, 1072]. This site visit was contained in the Claimant’s diary but not the site register. We find that there is no evidence that Fabian MarshallJoseph attended any site visits during the Claimant’s period of sickness between 3-27 November 2020, or 20-31 January & 1-22 February 2021. The Claimant’s absences in relation to 3-27 November 2021 were because of severe back pain. But the reason why the Claimant was absent from 20-31 January & 1-22 February 2021 was due to her painful breast biopsy. Although Fabian Marshall-Joseph did attend a site visit on 5 May 2021 [SB59].[102]Neither is it clear to us that Fabian Marshall-Joseph necessarily was given more opportunities to attend site visits. The Claimant accepted in evidence that she did not know how Fabian Marshall-Joseph arranged his site visits. We accept Victoria Saunders' evidence that both apprentices wanted her to make arrangements for site visits, rather than seek out opportunities as Ms Marshall did. Fabian Marshall-Joseph did go on another site visit on 31 August 2021 [SB63], which the Claimant did not attend, but this was because the Claimant was off sick from July 2021 until the end of her employment. It is worth noting that the end of term finished at the end of June 2021. There were occasions where Fabian Marshall-Joseph did a site visit and the Claimant was off sick, i.e. 5 May 2021 [759-760] or was prevented from doing site visits because the occupational health report stated that the Claimant should not do site visits at that time until 19 May, when occupational health advised that she could do site visits with reasonable adjustments. The Claimant did not provide any evidence that site visits were arranged for Fabian Marshall-Joseph and not her. The Claimant arranged some of her site visits. She was vague and imprecise in her evidence when asked whether Fabian Marshall-Joseph told her that he was doing additional site visits; she would not say what other work she said that Fabian Marshall-Joseph told her he did. The Claimant did not say in evidence that Fabian Marshall-Joseph told her that he was doing additional site visits. Fabian Marshall-Joseph’s student progress reports in March 2020 [466-467], which the Claimant said in evidence was evidence that Fabian Marshall-Joseph was getting on the job learning and he was on site, actually show exactly the same information as the Claimant’s progress report in the core learning part of the form [464-465]. The fact that Fabian Marshall-Joseph comments on the job learning is his interpretation of what he is experiencing; the Claimant doesn’t comment on it.[103]Victoria Saunders’ evidence is that, in respect of site visits, the engineers reported to her that the Claimant was struggling to walk. We find that this reporting of the Claimant struggling to walk would have been post October 2020 because Victoria Saunders was not in the workplace from JanuaryMarch 2020 when the Claimant did site visits. She returned from maternity leave in October 2020, and so the reports to her of the Claimant struggling to walk must have been from then when the Claimant attended site visits. Dave Gilkes reported that on his site visit with the Claimant on 15 July 2021 she was struggling to walk. We find that the only evidence that is a report of the Claimant struggling to walk on site is in David Gilkes’ email dated 31 March 2022 [1072] and we consider Victoria Saunders comments relate to this site visit that David Gilkes under took with the Claimant in July 2021.[104]We find that the period during which the Claimant could not attend Site is from 25 March-19 May because the Claimant was prevented in that period by Victoria Saunders, who told her that she could not ignore the occupational health report, which said she cannot attend Site. However, the occupational health report of 19 May said she can attend Site with reasonable adjustments that would allow her to commute to the site.[105]The Claimant could not drive and so would need to be either picked up by the Project Manager she did the site visit with, or the Claimant’s preference was for taxis to be arranged. However, even by 18 June 2021, there was still a restriction on car sharing [SB76], so the Claimant could not get a lift with a Project Manager. The Claimant agreed that she would make an Access to Work (‘ATW’) application in order to have taxis paid for in the 11 May 2021 meeting [631], yet the Claimant did not make the application in May or June 2021. However, on 25 June 2021, the Respondent agreed to pay for taxis, so the reasonable adjustments had been made, and by 25 June 2021 the Claimant had a meeting with Dave and Adrian [850] regarding buddying up and site visits. We therefore find that the Claimant was prevented from attending Site between 19 May-25 June 2021 because she could not attend Site because she could not drive, and there was no way for her to commute to Site.[106]On 10 May 2021, Stephen Okoro wrote to Jackie Lee of Oaklands College, who was asking for an update on the Claimant “…I find that she spends a lot of time on leave and when she is around, she struggles to motivate herself to meet the expectations of the program.” [615] We find that it was not just the Claimant’s absence, which at that time was not related to the Claimant’s joint pain, EDS or thyroiditis, that affected the Claimant’s ability to complete her portfolio, but also the Claimant’s motivation. We find this was understandable in light of all the matters that were concerning the Claimant at the time.[107]By letter dated 11 May 2021 [709], the college wrote to the Claimant to state that she had not completed at least 4 units in her course [710]. Meeting 11 May 2021[108]By letter dated 19 April 2021 [575-576], the Claimant was invited to attend an HRM for 11 May 2021. The Claimant was specifically told that the Occupational Health advice would be discussed at the meeting. We find there was no evidence that the Claimant raised reasonable adjustments following receipt of this letter before the meeting on 11 May 2021.[109]In the meeting on 11 May 2021, Victoria Saunders and Katie Skeggs asked the Claimant about her future regarding the apprenticeship [659]. The Claimant was sent an outcome letter of this meeting dated 13 May 2021 [735- 740].[110]In the 11 May 2021 HRM, the Claimant discussed a number of topics, including the College. The Claimant made it clear that she was stressed, and the source of the stress was because of the College and because she could not get a diagnosis for her health conditions from the doctors. [659][111]At the meeting on 11 May 2021, the Claimant asked for a variation of work [679], Victoria Saunders agreed to provide a variation and mix it up [679]. In an email dated 6 April 2021 to the Claimant, Victoria Saunders made it clear that “As part of her apprenticeship portfolio that she must undertake as well as her college course, it requires her to go to site to learn new skills etc and I'm concerned if she can’t do this then she won’t complete the apprenticeship as some skills need to be learnt from site and cannot be through a desk top.” [1241] And in an email on 8 April 2021 to the Claimant, Victoria Saunders confirmed that “She not being able to go to site does really concern me as it is part of the apprenticeship and on the job learning. There are aspects that cannot be taught via a computer.” [1239] We find there was no indication that Victoria Saunders did not provide more variation of work after 11 May 2021 and Adrian Redup and Stephanie Dobb also provided variation of work [1149], and we find that variation of work was provided to the Claimant. We find that the only restriction that the Claimant had was that Fabian Marshall-Joseph did not have a restriction in not being able to attend site visits or attend shorter site visits from May 2021. The Claimant could not go on site visits from March- 19 May 2021. However, Fabian Marshall-Joseph did not go on site visits more site visits than the Claimant before she went off sick, they both went on 1 site visit each.[112]In the meeting on 11 May, the Claimant also said “Yeah, cause we don't know cause I've not been put in the role you know and also I feel Vicki will agree covid has impacted that as well because as an apprentice you wanna get, um, it helps to be in the office, talking to people, seeing what people do, but with HCC, we have remote working policy anyway, so a lot of the time PM’s used to work from home and have a variation of in office and home.” [672] We find that the Claimant was acknowledging that she wasn’t getting on-the-job learning because the Project Managers that she would learn from were working from home a lot of the time.[113]At that meeting, according to the Respondent’s notes, Ms Skeggs stated “We can make reasonable adjustments to aid you in the work and in the apprenticeship but if these adjustments affect business delivery then HCC cannot commit to these adjustments long term” [630]. At the time the Claimant’s reaction to that comment was “Well I don’t see how I will be affecting business delivery. COVID has affected business delivery, it helps being in the office, seeing what people do.” [630]. The Claimant’s evidence was that this comment was hurtful to her, and we accept the Claimant’s evidence on this point as the Claimant’s reaction at the time was push back. We find Ms Skeggs did make this statement. It is clear from the context of the statement that all Ms Skeggs was doing in her statement was explaining the meaning of ‘reasonable’ in the context of the Respondent when referring to business delivery, as prior to the statement being made, the Claimant asked Ms Skeggs, “can you explain reasonable adjustments Katey?” We find that this comment does not question whether the Claimant could continue in her role and complete the apprenticeship; on the contrary, Ms Skeggs is referring to the Respondent’s obligations.[114]Later on in the meeting according to the Claimant’s notes Ms Skeggs adds “but obviously, if it came to the point that there was no business delivery as in like she couldn’t put you on any project – she was struggling to give you work at home because it was too repetitive then she obviously couldn’t keep those reasonable adjustments in place coz it would be affecting the business delivery.” [672]. The Claimant refers to this quote in her evidence [paragraph 139].[115]We find that the notes of the Respondent and the Claimant are not consistent. The Claimant gave evidence that her note is a combination of using Word's “dictate function”, which transcribes audio in real time, her sister’s note (which we do not have) and her own notes (which we do not have). The Claimant said in cross examination that she asked for her notes to be included because she noticed inaccuracies in the Respondent’s note of 11 May 2022, but she admitted that she didn’t know where the inaccuracies were in the Respondent’s note, and she said she couldn’t remember if she checked the Respondent’s note word for word. We find from the Claimant’s evidence that she believed her notes were an accurate reflection of what was said at the meeting, and the Respondent’s notes are inaccurate.[116]However, the Claimant referred to quotes that are not in both notes. But also relied on quotes that are in the Respondent’s notes and not in hers. For example the Respondent’s notes do not refer to the latter quote from Ms Skeggs [672] set out in paragraph 139 “but obviously, if it came to the point that there was no business delivery as in like she couldn’t put you on any project – she was struggling to give you work at home because it was too repetitive then she obviously couldn’t keep those reasonable adjustments in place coz it would be affecting the business delivery.” Anywhere.[117]The Claimant’s notes in respect of the earlier quote from Ms Skeggs are not exactly as the Respondent had written it, as some of the words are there but others are not. It says “That's all things we want to help you in a reasonable adjustment. It's just if it came to the point that it was affecting business delivery, and I think that's what we need to look at to make sure that obviously you don't” [671]. But critically the words “HCC cannot commit to these adjustments long term” are not there in the sentence. We find that the Claimant cannot have it both ways. She is unable to say what is inaccurate in the Respondent’s note yet is relying on specific quotes in the Respondent’s note, some of which are not in her note, as harassment. As a matter of logic, she cannot believe that the alleged sentence in the Respondent’s note was said if they are not in her note because, as she has asserted, her note is accurate. We find that neither note is reliable, as we were not provided with all the sources of the Claimant’s notes, and the Respondent’s note is not entirely accurate because it is a summary of what was said and is incomplete.[118]Notwithstanding, we find that the comment of Ms Skeggs, like the latter one, was an explanation of the extent and limitations of reasonableness for the Respondent. There was nothing untoward about the comment.[119]Victoria Saunders said in the 11 May meeting, “You are saying you are feeling discriminated against not being giving projects and career progression opportunities. I am thinking long term with deadlines if this would affect business delivery.” [630] She immediately follows this comment with “I need to think what role we can give you which would not put pressure on you. If we offered the Level 4 HNC – would this be something you would want to do?” [630]. The Claimant’s oral evidence was that she felt the phrase I don’t want to put pressure on you, think long term business delivery, felt to her like discrimination. We find that this comment does not question whether the Claimant could continue in her role and complete the apprenticeship; on the contrary, Victoria Saunders is suggesting the opposite, as she is looking to see what she can give the Claimant to allow her to continue her employment in the future.[120]We find that the context of the quote is set by the latter quote regarding a suggestion of career progression, e.g. offering level 4 HNC. We find that Victoria Saunders made that comment because she didn’t want to put pressure on the Claimant when the Claimant had told her she was under stress, and this is substantiated by the Claimant’s response to Victoria Saunders’ comment of “ My fear is the college; I would have to think about it because the amount of stress I have been through.”[630] At that time, the HNC was to be offered by Oaklands, and Victoria Saunders knew that Oaklands had been a source of stress for her. Furthermore, we note that in the Claimant’s notes, the equivalent sentence is “you are saying to me that you feel discriminated about not giving you projects et cetera, which is not what I've done at all” [673]. This quote suggests that all Victoria Saunders is doing by referring to the Claimant feeling discriminated against is denying that she has discriminated against the Claimant. It is clear to the Employment Tribunal that the quote in the Respondent’s version is a summary of what was said and not verbatim. In this context, we find that Victoria Saunders' comments were reasonable.[121]The Claimant alleges that Victoria Saunders stated, “If you did have sort of long-term sickness, again, would that work be done?” However, we find that this is not contained in the Respondent’s notes. However, we find that the quote was said. We note that Victoria Saunders follows up the comment with “If you did have sort of long-term sickness, again, would that work be done? Basically, but that's sort of in the future so I don't want you to worry about that too much, but obviously I need to think about what role we can give you, which is kinda suitable for what you can do and is not going to add more pressure onto you and stress onto you like the college has been, because that's not what we want….” [673] We find that the comment about long term sickness in context is somewhat of a rhetorical statement. Victoria Saunders was explaining the commercial reality of what she was required to do in her role to manage work in the future. We find it was not Victoria Saunders questioning whether the Claimant could continue in her role and complete the apprenticeship, and Victoria Saunders' follow up demonstrates this as it refers to finding the Claimant a role and not adding pressure. It is further reinforced when Victoria Saunders makes a comment that the Claimant had not complained about in the Claimant’s own notes of “Yeah, so that's...I need to have a discussion with Chris and Neil about what we can offer because there is, there's a lot of work coming in so we can maybe create a role around that.” [675] The Claimant agreed because she said, “I think it is just about finding the best fit for me, I guess yeah.” [677]. We find that the context of the entire meeting was to work out what the Claimant could do, and the Claimant summarised this best in the meeting when she stated, “But obviously with reasonable adjustments, if my body doesn't allow it simple as my body doesn't allow it. I can't push it anymore than what I can, but personally I feel it can be worked around with reasonable adjustments. I hope that it can.” [674][122]The Claimant’s evidence was “I felt hurt, humiliated, embarrassed, disappointed and let down because once again I had reached a dead-end when I had tried to reach out for help.” However, we do note that the Claimant stated in her notes later in the meeting, “I don't take anything as - I don't take offence to things and I don't, I just I love - I just like to know, I like to have the information and I like to have everything communicated with me. I'd like to be in the know and I think that that's my kinda personality.” [675] This is summarised in the Respondent’s notes as “I don’t take offence to things. I like clear communication” [631]. We find that the Claimant was not upset by this comment. After all, the Claimant was supported by her sister in that meeting but did not raise anything about the comments being made in the meeting that she now says in her evidence upset her. It is indicative that at the end of the meeting, the Claimant said, “ I just want to round it up. Basically I just say you know I'm really grateful for the support that I do receive from you and It does really help with an already difficult situation, and I feel a lot better being able to communicate everything in one go.” [680] We find that Victoria Saunders' comments were positive. We also note that the Claimant did state in her 23 June 2021 grievance that comments made by Victoria Saunders and Katey Skeggs made her feel that her job was threatened [872]. However, the Claimant does not specify in her grievance what it was specifically that Victoria Saunders or Katey Skeggs said to make her feel this way. Occupational Health Report dated 19 May 2021[123]The Claimant attended Occupational Health by telephone on 19 May 2021. Dr Prissana Krishna produced an occupational health report dated 19 May 2021 [745-747]. Dr Krishna reported, “Miss Naidoo has several significant underlying medical conditions and today we focused on the main health problems and the workplace adjustments that are likely to assist her in the role. She indicated that she has been working from home during the pandemic. She experiences widespread joint pains due to an underlying musculo-skeletal condition and unfortunately the symptoms have got worse in the last two years and does restrict her mobility and certain day to day activities. She remains on regular medications to help manage the symptoms and she is awaiting further investigation and review with a rheumatologist. She also experiences fatigue and this combined with symptoms related to anaemia and her thyroid condition can at times make it harder at times for her to manage at work. She is awaiting specialist appointments for these and other health problems over the next couple of months.” [746][124]The report stated that the Claimant was fit to attend work with adjustments. “I understand she has had an online workstation assessment and she has an ergonomic mouse and keyboard but does not find it helpful. She would benefit from a more detailed workstation assessment and Access to Work should be able to assist with this and make specific recommendations about equipment that can assist her. In view of her joint condition I would recommend that she is provided with a multi-adjustable ergonomic chair with lumbar support built in. A larger laptop will make it easier for her to see the screen if she is working in different rooms of her home and refreshing her posture regularly during the day is recommended. If she is likely to be doing a lot of typing tasks then voice recognition software is worth considering. In view of her fluctuating symptoms she would benefit from flexibility with start/finish times particularly if she is expected to be coming into HCC offices in the coming months. I would consider her fit to do site visits/inspections as long as they are limited to about 30 mins on-site and she avoids prolonged walking and any heavy lifting/pulling/pushing. She does use a walking stick outdoors and this is likely to assist her on visits. She will struggle to drive to visits due to the joint pains but can attend if transport is arranged. She is likely to need time off to attend medical appointments in the coming weeks.” [746][125]The Occupational Health advisor finally added, “She did describe feeling stressed by her workplace concerns and particularly with regard to issue of workplace adjustments and a stress risk assessment is advised.” [746][126]At the 11 May 2021 HRM meeting, the Claimant said “so occupational health told me to apply for access to help. Sorry, access to work which I am due to do, it's just I was waiting for some other information which I would have needed for access to work, which I thought I was going to get and it doesn't look like I'm going to get it anytime soon, I will apply for that, but I'm not really sure about the details about access to work, exactly how it works. I just know that they can give funding to your employer to help you. You know things like taxis and extra equipment” [676-677] In response Katey Skeggs stated “Yeah, they can come out and do in assessment and just see - I mean you said you've really got the keyboard and mouse, but they can look at other things like a chair or standing sitting desks just come out and do a full assessment to see obviously what you need to be able to work. Yeah, so I just wanted to see if they've been actually applied for it so you could apply for that soon” [677]. The Claimant’s qualification[127]On 25 May 2021, the Claimant had a meeting with the College and the Respondent in attendance [761]. One of the matters on the agenda was to find out where the Claimant was up to in her apprenticeship and what was outstanding for her to pass. In the meeting, the Claimant was told that she could not do level 4 without completing the NVQ. Victoria Saunders acknowledged in that meeting that there was no requirement that the Claimant complete the NVQ at any particular time, but then Victoria Saunders was told by the College in the meeting that students must complete the NVQ before being able to do the level 4 qualification [776]. We find that this meant practically that the Claimant would have had to submit her NVQ portfolio before the end of August 2021 so that she could have her portfolio signed off by the assessor, and that would allow her to start the level 4 course in September 2021.[128]The Claimant confirmed that she had not been able to attend the practical [763]. The Claimant was presented with a table that showed that the Claimant had not completed all her assignments. Victoria Saunders explained in the meeting that she knew that the Claimant had not yet completed all her assignments but that she would work with the Claimant to get them all in for the next month, [776] which was the end of the academic course. The Claimant agreed with what Victoria Saunders said in the meeting regarding her assignments. We find that the Claimant accepted by 25 May 2021 that she had not completed all her assignments but she would have completed them by the end June 2021.[129]The Claimant’s sister who was in attendance at the meeting on 25 May noted that “I don't really understand what the purpose of HCC and the College attending this meeting jointly - I mean, Jheshalya has a good relationship with Vicky and she would have informed her anyway.” [767][130]By email dated 27 May 2021 15:16 [789] to Victoria Saunders, the Respondent was told in writing by Jackie Lee, head of Work based learning at Oakland College, that the apprentices needed to complete the BTEC level 3 and the NVQ of the apprentices to move onto level 4. The Claimant believed that she only needed to do the BTEC level 3 to complete her apprenticeship until May 2021.[131]By email dated 1 June 2021 [795] Victoria Saunders asked the Claimant whether she had completed the practical part of her course and whether anything was outstanding. The Claimant was asked to chase if something was outstanding, as Victoria Saunders could support her with it.[132]On 10 June 2021, the Claimant had a 1:1 meeting with Victoria Saunders. At that meeting, the Claimant accepted that she had 2 assignments outstanding at that point [CWS160].[133]On 11 June 2021, the Claimant sent an email [827] Victoria Saunders a list of all the meetings that she had with Victoria Saunders including: Apprenticeship Portfolio Catchup with Vicky Saunders and other apprentices on 08.06.2021, 26.05.2021, 14.04.2021, Apprenticeship Portfolio Catchup with Vicky Saunders, Stephen Okoro and other apprentices on 08.06.2021, 02.06.2021, Ill Health Review 11.05.2021, 18.06.2021(proposed at that time), Meeting to Discuss On site visits and other matters with Vicky et al on 02.06.2021, 1:1 with Vicky Saunders on 27.05.2021, 10.06.2021. The Claimant also stated in that email, “As discussed with you yesterday, I have not at any stage asked for a reduction in my workload but rather a request for more variation as the repetitive nature of the tasks exacerbate my joints.” We find that at all these meetings the Claimant was given the opportunity and did discuss with Victoria Saunders her difficulties in attending site visits and completing her work portfolio.[134]By email dated 11 June 2021, the Claimant confirmed to Victoria Saunders that “during our 1:1 yesterday, we discussed the outstanding pieces of work in respect of the college and I confirmed that I was on track to completing these following discussion with the college” [828]. We note that the Claimant refers to reasonable adjustments as advised by the Occupational Health report in that email but does not mention anything about their implementation [827].[135]On 15 June 2021, Victoria Saunders was asked by Katey Skeggs about what had happened with the reasonable adjustments as recommended in the occupational health report [816].[136]Katey Skeggs emailed the Claimant on 16 June 2021 to say that the reasonable adjustments recommendations would be discussed with the Claimant at the HRM meeting for 18 June [826].[137]Victoria Saunders' evidence was that she waited to order the larger laptop after the occupational health report dated 19 May 2021, recommended it, because she was waiting to speak with the Claimant about the Occupational Health recommendations and that the Claimant was not able to do that until the meeting on 18 June 2021. It was after that meeting that the Claimant indicated that she wanted a large laptop, and Victoria Saunders ordered the Claimant’s laptop on 30 June 2021 [1152] for delivery on 1 July 2021 [881].[138]The Claimant stated in her disability impact statement that although the occupational health doctor instructed the Respondent to provide her with voice recognition software, it was not provided. She stated that she was not certain that it would benefit her greatly, as she is often not able to talk for long periods of time owing to the seizing up of her jaw and pain [79].[139]We find that the lack of response regarding the Claimant regarding the reasonable adjustments to be implemented suggests that the Claimant did not at that stage need the reasonable adjustments to be implemented with any kind of urgency.[140]There were discussions in June 2021 about what should happen with the Claimant’s employment. By email dated 17 June 2021, Katey Skeggs in HR wrote to Chris Allen Smith, Group Manager, with Neil Richardson and Victoria Saunders copied in, about a proposal to extend the Claimant’s apprenticeship by 6 months in order to allow the Claimant to pass level 3 [836]. Chris Allen Smith agreed with the proposal and asked Neil Richardson to be involved in the HRM process [835].[141]In her response to Chris Allen Smith's email, Ms Skeggs wrote on 17 June 2021, 16:05, that “If JN was carrying out the role given to her for the 6- months well and completing all the duties expected, then I would assume she would have the option to stay on to do that role and even be offered the L4 the next academic year. If JN does not complete that role with all of the duties including multiple visits to site we will then end the contact.” [834][142]We find that this email does not signify that the Respondent had made a decision to dismiss the Claimant but states the reality that if the Claimant cannot carry out her role with reasonable adjustments, then the Claimant’s contract would need to be terminated. The Respondent was looking at the options available when the situation was uncertain at that time. Even though Ms Skeggs does not mention the words reasonable adjustments we find that the Respondent was clearly considering reasonable adjustments in the context of that email because Ms Skeggs refers to alternative roles that the Claimant might be able to do.[143]However, by the next HRM meeting on 18 June 2021, the Claimant still had not submitted an ATW application [102]. In the meeting, the Claimant was asked how she was getting on with her ATW application. The Claimant said for the first time that she thought that the Respondent should make arrangements for her to attend Site pending her ATW application [SB76]. Victoria Saunders confirmed that the Claimant’s attendance at Site was part of the NVQ and part of the role [SB76]. Katey Skeggs asks the Claimant if she wanted help from Victoria Saunders with the ATW application [82]. The Claimant’s response was that she did not want assistance from Victoria Saunders. However, by the end of the meeting, Katey Skeggs agreed to check whether a taxi could be funded [105] and Victoria Saunders set out in the outcome letter of the 18 June 2021 meeting that the Respondent would pay for the taxi [854].[144]The Claimant reluctantly confirmed in evidence that she believed that it was discussed in June 2021 with Victoria Saunders that getting taxis to site visits was something that she was going to raise with ATW. The Claimant’s oral evidence was on the one hand that she accepted that AWS funded taxis for site visits but then said later in her oral evidence that she did speak to ATW, who said that they would pay for the Claimant to attend work but not site visits. The Claimant did not provide this evidence in her witness statement and was unclear when it was put to her that ATW funded matters within work and referred to the ATW document that stated “ Access to work grants can pay for things like…..money towards any extra travel costs within work” [1604].[145]In the HRM on 18 June 2021, Victoria Saunders discussed the Claimant’s assignments. Victoria Saunders said to the Claimant, “we chatted in the 1:1, we spoke about the college assignments, and I saw that the College has swapped the dates, which was good. How are you getting on with those? What have you still got outstanding? “[SB72] the Claimant responded, “ It's, it's exactly the same as what I spoke to you in the 1:1. It's all still the same, just the added thing which I cc’d you in where they swapped the dates so everything is still on track as we discussed.” There was further discussion between Victoria Saunders and the Claimant, which resulted in the Claimant accepting that the maths and the CAD assignments were due on 21 June 2021 and the project was due on 28 June 2021.[SB73][146]Victoria Saunders told the Claimant in the meeting, “Because you're on a fixed term contract and obviously that's coming to an end in the next couple of months, and we'd expect you to obviously be finished by that point. We have to discuss where you're at with your apprenticeship as well. Because I was under the impression that there was a delay in you finishing your course. So, we just need to make sure it will be done because you're only on a fixed time [sic] contract.” [SB76][147]The Claimant needed to have her assignments in before college finished in June or early July. Victoria Saunders confirmed that results for the BTEC Level 3 were published in August. Victoria Saunders sent an invitation for a meeting on 6 July 2021 for the Claimant to discuss what the Respondent will offer her when her fixed term contract ends with regard to the level 4 qualification [885].[148]There was no requirement to complete the NVQ portfolio in order to be offered a 2 year fixed term apprenticeship contract before May 2021, as that is when the Claimant and the Respondent were told by Oaklands College. Whilst there was a requirement for the Claimant to complete her work portfolio before May 2021, there was no time limit imposed on this.[149]The Claimant was not happy with the 18 June 2021 meeting. Although the Claimant did mention the outstanding reasonable adjustments from the previous OHU reports, she did not mention this until after the conversation about the need for the Claimant to complete her level 3 qualification before she can be offered the further 2 year fixed term apprenticeship contract.[150]We accept Victoria Saunders' evidence that the reason she had not moved forward with the reasonable adjustments until 18 June was because she wanted to make sure that the Claimant was happy with the proposed reasonable adjustments before going ahead with them.[151]At the 18 June 2021 meeting [SB97-98], the issue of a reasonable adjustments record was raised by the Claimant’s sister. The Respondent’s response was that the record is in the occupational health report, and Victoria Saunders confessed that she was not even aware of the form. The Claimant raised the issue in her grievance [870] and said that the detriment to her was that there was no record of the reasonable adjustments that the Respondent arranged for the College to do. In oral evidence, the Claimant said that the reason why she needed the reasonable adjustments form was so that she could know what she needed and to read what was put in place for her. However, we find that the Claimant’s evidence was that the form was a reasonable adjustment because it would help the Claimant to have a record to know what she needed and it would have helped to have something formal in place, if the Respondent completed the form it would have helped her to be able to go on site visits and College and it removed anxiety and stress to read what was in place for her. We find that although the occupational health report dated 19 May referred to flexible working in the longer term, the Claimant did not ask for a plan of flexible working. We find that the Claimant did not ask because she knew that she could work flexibly, as she had been told so by both Neil Richardson and Victoria Saunders. We find that the Respondent’s own reasonable adjustments policy [1608] stated that it was important to record the arrangements of reasonable adjustments [1608]. We find that the 19 May 2021 occupational health report did set out the record of what reasonable adjustments were needed for the Claimant and those reasonable adjustments that had been implemented. We find that the Claimant had access to her occupational health report and so had a list of what reasonable adjustments were implemented at that time. The Claimant was consistently consulted about the reasonable adjustments to be implemented and so practically knew which adjustments needed to be put in place. It is notable that there is no record in the Claimant’s 92 page witness statement that refers to a failure to provide a reasonable adjustments form completed by the Respondent, as referred to in her 28 June grievance. The Claimant said that the assistance the form provided in respect of continuity was in relation to her stress and anxiety; however, we find that the Claimant did not assert that her stress and anxiety was a disability, and we do not accept the Claimant’s evidence that it would have helped her to go on site visits. The Claimant was consistently consulted about the reasonable adjustments to be implemented and so practically knew which adjustments needed to be put in place.[152]By letter dated 25 June 2021, Victoria Saunders wrote to the Claimant to confirm the outcome of the HRM held on 18 June 2021 [848- 854]. In the letter, Victoria Saunders explained that “The opportunity has not been there to give you this work. I explained that we had been in and out of lockdowns since March 2020 and that we had to follow government advice.” [850] We find that the Respondent did give the Claimant variation of work as much as it was able to do but was restricted because of the COVID pandemic as to what work was available.[153]On 25 June 2021, Victoria Saunders emailed the Claimant to ask her to complete a DSE assessment form in order for the Claimant to be ordered a chair [862]. However, by 6 July 2021, the Claimant had not responded and had to be sent a chaser by Victoria Saunders on 6 July 2021, asking her to complete the form [861]. The Claimant responded on 9 July 2021 with the DSE assessment form. The same day, Victoria Saunders asked the Claimant if she was interested in keyboards or mice to assist her in the list provided in the link within her email [861]. However, the Claimant did not respond until 13 July 2021, saying that she would get back to Victoria Saunders [861]; however, there was no response in the bundle. We find that the detailed work assessment could not be completed without the Claimant’s input. The Claimant did not return the form until 9 July 2021. We accept Victoria Saunders’ evidence that she would have looked at the Claimant’s office equipment, desk, chair, laptop, key board, mouse to make sure that they were comfortable and being used correctly. If something was flagged as a no then it would be looked at by her to see what the Respondent could do to rectify the issue and see if a different piece of equipment was needed or needed replacing. The assessment required a specialist and there was a delay on assessments at the time because of COVID.[154]On 6 July 2021, at a meeting to discuss the Claimant’s role, Victoria Saunders said to the Claimant, “So we'd like to basically offer another two year fixed term contract, do the level 4 - So the HNC. That's sort of what we'll be offering all the apprentices. In terms of where it's going to be, I'm having a catch up with Sarah Baldwin tomorrow because Fabian isn't too sort of happy about Oakland's and he’s found potentially a College in London that does it.” [887][155]Victoria Saunders' evidence on this conversation was that the offer of the 2 year contract was what the Respondent hoped to do. We find this conversation did not amount to an offer of renewal of a contract or an offer for a fixed term contract for 2 years to do the level 4 qualification, but the expression of an aspiration to be able to offer the Claimant such a contract.[156]In June-July 2021, the Claimant’s oral evidence was that her symptoms deteriorated further and her medications were not working. The Claimant said there was confusion as to what was causing the new symptoms, and her psoriasis got so bad. She said the Lichen Sclerosus was itchy, and she put on weight. The Claimant said that she went from a size 6 and ended up being a size 12. However, we do not accept this evidence regarding the Claimant’s weight as this is not reflected in the Claimant’s medical notes at this time.[157]The Claimant said that at this time her hair was falling out, and she was experiencing vomiting, diarrhoea, gastro problems and unexplained symptoms, including memory loss. The Claimant said that she was not herself and was a shadow of the person she once was. However, the medical evidence does not support the Claimant’s description of herself at that time. The doctor who saw the Claimant on 22 June 2021 described the Claimant as “looks well” [MB446]. We find that the Claimant did not give truthful evidence about her medical condition, and we found the Claimant’s evidence about the impact of her medical conditions to be unreliable.[158]Victoria Saunders ordered the Claimant’s ergonomic chair on 14 July 2021 to be delivered on 19 July 2021 [1498]. However, on 10 August 2021, by which time the Claimant had gone off sick from work, Victoria Saunders was emailed by an Ian Evans with the Respondent, to advise her that they didn’t have any new chairs available but only second-hand ones [1075]. Victoria Saunders’ oral evidence was that she continued to liaise with the relevant HCC BST department in order to get the Claimant the correct chair. However, in order to get the appropriate chair, the Respondent would need to send someone out to do an assessment at the Claimant’s home, but the Claimant was off sick, so it couldn’t be done. Victoria Saunders confirmed in an email to Valerie Weaver that there were restrictions due to COVID on assessment at that time [1075]. We accept Victoria Saunders' evidence on this point. We note that none of the Claimant’s sickness certificate as assisting the Claimant referred to reasonable adjustments or an ergonomic chair in returning to work. We find that it provided the Claimant with an ergonomic chair, the chair required an assessment, and that could not be done without the Claimant’s co-operation. It was an appropriate chair that was needed. In May 2021, the chair would have done nothing to allow the Claimant to attend site visits or assist in the Claimant being offered a 2 year fixed term contract. The Claimant was behind on her assignments and work portfolio in March 2021 [512] before the occupational health report suggested reasonable adjustments. It was around this time that Victoria Saunders stopped being the Claimant’s line manager, because a grievance had been raised against her and Neil Richardson took over. Occupational Health Report dated 18 August 2021[159]The Claimant went off sick on 22 July 2021. The Claimant’s sick certificate stated the reason the Claimant was not fit to work for 6 weeks was “stress exacerbating ongoing symptoms of joint pain, tiredness, psoriasis. Under hospital investigation in several specialities” [MB177]. The Claimant said in oral evidence that she detailed issues that she had at work to her GP. However, we do not accept the Claimant’s evidence on this point as there was no medical evidence to support what the Claimant said. In the Claimant’s medical notes in the month running up to her going on long term sick leave, there is no mention of stress caused by lack of reasonable adjustments or the grievance. The GP notes record on 12 June 2021, “feels her work is trying to manage her out due to health issues, this is causing her great stress” [450]. We find that the Claimant did not want to engage in the HRM meetings, and that is why she was experiencing stress. We find that the fact that the reasonable adjustments had not been implemented in June 2021 was not a significant stressor at all, as the Claimant does not mention it.[160]The Claimant was referred to Occupational Health as a result. Occupational health reported on 18 August 2021 [908] and states, “Based on Miss Naidoo's underlying symptoms and functional limitations she is currently unfit for any work. It is likely that there will need to be a significant and sustained improvement in her health before she will be able to return and currently it is not possible to provide a clear timescale for a return to work. Once she is fit to return I would recommend that she gradually phases in her hours over a 6-8 week period and the adjustments recommended in the last OH report still apply. It is likely that her workplace concerns will also need to be addressed to enable a successful return to work.” [908] The reasonable adjustments set out in the occupational health report dated 18 August include the previous reasonable adjustments set out in the May 2021 occupational health report [745-747] and a phased return to work. We find that the Occupational Health advisor was not saying that the workplace concerns, which were the Claimant’s grievances, needed to be addressed before the Claimant could return to work, but that they would help to enable a successful return to work. The Respondent was in August 2021 investigating the Claimant’s grievance. At that point, the Claimant’s grievance had only been submitted the month before, and so there was no complaint about the delay of dealing with the grievance, and so that did not contribute to the Claimant going off sick in July 2021.[161]The Claimant’s evidence was confused regarding a phased return to work. The Claimant accepted that the Respondent could not do a phased return to work because the Claimant was not at any point after 18 August 2021 fit to return to work. Yet the Claimant said that a phased return to work plan could be put in place by the 8 September 2021 HRM meeting. The Claimant accepted in evidence that there was no refusal by the Respondent to implement a phased return to work, and Neil Richardson did not specifically say that he refused to implement a phased return.[162]We find it is clear from the occupational health report that the reasonable adjustments referred to, including the phased return to work, apply only when the Claimant returned to work. There was already a plan of phased return to work as set out in the OH advisor’s occupational health report of 6-8 weeks in any event. Six Months Contract Extension[163]The Claimant’s apprenticeship contract was due to expire on 31 August 2021. However, by 20 August 2021, it is not clear that the Claimant had completed her BTEC level 3 because Neil Richardson was told by the Claimant that she had [911] but Victoria Saunders needed confirmation from the College [912]. Ms Skeggs wrote to both stating “In regards to next steps we need to ensure the FTC’s are extended as they are due to end this month. If the apprentices have satisfied the requirements to go onto the Level 4 then they can be given a further two year contract and if they have not completed the Level 3 then they are given a 6-month contract to allow them time to complete this. There is the option of terminating the contract at this point but this does come with risks for an ET claim as the post is still needed within the service. If you can please meet to discuss the above and then let me know which outcome you have decided then we can continue with the other HR processes that are currently ongoing.” [913] We find at this stage that the reason why the Respondent is investigating the Claimant’s marks is because they want to offer her a 2 year fixed term contract for the BTEC level 4, and they cannot offer her the apprenticeship for BTEC level 4 unless she has completed BTEC level 3. By the end of August 2021, the Claimant’s marks had not been confirmed by the College, whilst Fabian Marshall-Joseph had received his results and a certificate. We accept that Victoria Saunders said that she saw Fabian Marshall-Joseph’s certificate sometime during a Teams catch up in August 2021, before his contract expired. However, this was not the case for the Claimant. The Claimant accepted in evidence herself that by 31 August 2021, she had not received confirmation from the College of her marks for the BTEC level 3 because it was confirmed on 23 November 2021 by the College that she had passed the BTEC 3 [914].[164]The Claimant’s evidence was that she confirmed to Neil Richardson verbally that she had passed the BTEC level 3 because she said in oral evidence that she had looked at the College system and that the 2 outstanding courses were graded. However, at the meeting on 8 September 2021, the Claimant stated, “I haven’t received any formal thing about my grade or anything like that”. [973] The Claimant stated in cross examination that when she referred to formal, she meant a certificate. In cross examination, when it was put to her that Victoria Saunders had been told on 6 October 2021 [918] by Jackie Lee that there were there were 2 units with no grade attached [917-918], the Claimant accepted that this was the case. She said that they were graded on her system, but even without those units, she had passed the course and submitted the work for them. Notwithstanding the Claimant accepted in oral evidence that she knew that Victoria Saunders was looking for her grades, as she needed to know whether the Claimant had passed in order for the Claimant to be able to go to the next level.[165]We find that the Claimant was not telling the truth that she saw the grades on the system, because it was not in her witness statement, nor in her response to the grievance [1197] and there was no evidence of this at the time, in fact we only have evidence of the opposite and the Claimant accepted in cross examination that the Respondent had not received confirmation of grades. We find that in the email 20 August, Neil Richardson states “my recollection is that she passed level 3” [911], is because the Claimant told Neil Richardson that she had passed, but she had no basis for doing so. We find this because the start of the email refers to a conversation with the Claimant the previous evening and his recollection of that conversation, which includes the reference to the Claimant passing level 3, as in the same email, Neil Richardson states that they do not know what the academic position is. The Claimant cannot therefore rely on Neil Richardson saying that she had passed, to say that the Respondent knew she had passed, because he only said that because the Claimant told him she had passed. We find that the Claimant’s grades were not confirmed until 23 November 2021 [914] because there was an outstanding appeal.[166]On 26 August 2021, Neil Richardson emailed Anthony Boucher, Assistant Director of Highways to seek approval for the decision to offer the Claimant a six month extension and Fabian Marshall-Joseph 2 year fixed term contract. Neil Richardson explained in the email that the reason for the offer of 6 months to the Claimant was because of challenges during the Claimant’s employment that had impacted on her ability to complete all academic obligations [926 & 1740]. On 27 August 2021, Mr Boucher responded, saying “thanks Neil, happy to progress as you suggest” [1739]. Neil Richardson explained in evidence that it was Mr Boucher who approved the decision to offer the Claimant the six month extension. We find that Mr Boucher approved the contracts of both the Claimant and Fabian Marshall-Joseph. We find there was no evidence to suggest that Mr Boucher knew about the existence or content of the grievance on or before 2 September 2021. Neil Richardson does not make any reference to the Claimant’s grievance in his email to Mr Boucher nor does he mention the Claimant’s sickness absence or hospital appointments. We find there is no evidence to suggest that Mr Boucher knew at the time of the Claimant’s sickness absence or hospital appointments.[167]We find that Neil Richardson is adamant in his email to Victoria David dated 18 July 2022 [1100], “the grievance is not directly connected with the length/renewals of contracts and employment through this” [1827]. This is after Victoria David states in her email dated 6 July 2022 that Neil Richardson is responding to, that the contract extension in July 2022 (not in September 2021) might be extended long enough to get a grievance outcome and then deal with the next step of that grievance outcome [1102]. We find that when on 1 June 2022 Neil Richardson referred to the “other people have been involved in decision-making and decisions have come about which are part and parcel of the procedures that you have instigated.” [1091] He was not suggesting that the reason for the Claimant’s contract extension in September 2021 was because of her grievance all he was saying was that he acknowledged that the Claimant had already complained about the contract extension in her grievance and there was a process ongoing of which of he was not a part of the decision making. We find that the reason the Claimant was offered a six month extension on 2 September 2021 by Neil Richardson was because she had not completed her BTEC level 3 and it was not in any way related to the Claimant’s grievance. Whilst Fabian Marshall-Joseph had completed his and so could start the BTEC level 4. We find that the Claimant was not at the same stage as Fabian Marshall-Joseph by 2 September 2021, because Fabian Marshall-Joseph had his grades confirmed by then, but the Claimant had not.[168]We accept Victoria Saunders’ evidence that when Fabian Marshall-Joseph was offered his 2 year fixed term apprenticeship contract that the Respondent knew that there was no longer a requirement for him to have completed his NVQ as he was undertaking the level 4 at Southbank University who did not require an NVQ for students to undertake the level 4 qualification. We also accept that Victoria Saunders’ evidence that she was aware that Fabian Marshall-Joseph had submitted his portfolio but the Claimant had not. We find that by the time that the Claimant was offered her 6 month extension, the NVQ qualification was no longer a requirement in order to be offered the 2 year fixed term apprenticeship contract. We find that after 25 August 2021 the Respondent no longer applied this requirement. The fact that the Claimant had not completed her NVQ was not the reason why the Claimant was not offered the 2 year fixed term apprenticeship contract.[169]It was in these circumstances that Neil Richardson confirmed to the Claimant that her contract would be extended for 6 month effective from 1 September 2021 [941] and the Claimant would not be offered a 2 year fixed term contract. The Claimant accepted in evidence that her complaint was a failure to offer a 2 year contract not a failure to offer a permanent contract.[170]The Claimant’s six month contract extension dated 7 September 2021 [954] was sent to the Claimant’s work email address on 7 September 2021 [956]. In the contract extension the Claimant’s grade under the contract extension is H1 and her pay is set at £18,562.08 per annum (spinal point 03) [955]. We find that the Claimant knew on 1 September 2021 that the contract extension was for 6 months only and that was the term of the contract she had been offered. We do not accept the Claimant’s evidence that she found out what the contract term was of 6 months on 12 October when she says she saw the actual contract extension. However, we accept that the Claimant did not access her work email in September 2021, but the fixed term contract was also sent via the post, which Ms Skegg’s confirms on 8 September 2021 in the HRM meeting [972]. Furthermore, the Claimant confirms in her witness statement at paragraph 1996 that she received the documents at pages 954-955 which are dated 7 September. The Claimant must have received the offer of the actual contract document which had been posted by 8 September 2021. We find that on a balance of probabilities that the Claimant received the fixed term contract in September 2021 within a week of 8 September 2021 because she is told by Katey Skeggs to contact Neil Richardson if she did not receive it [972] and there is no documentary evidence that we were provided with, neither did the Claimant give any evidence that she did contact Neil Richardson to say she had not received the fixed term contract. In those circumstances, the Claimant was offered a fixed term contract of 6 months in September 2021. Furthermore, we find that the Claimant was reading her post in September because she emailed Ms Weaver on 5 September 2021 [953] to say that she had received her letter on 25 August 2021.[171]Mr Marshall-Jones’ contract apprenticeship contract was also extended on 7 September 2021 [BS185] but for a 2 year fixed term period. [SB183] Fabian Marshall-Joseph was assigned to the grade of H3 and his salary was to be £19,312.08 per annum (spinal point 05). [SB186][172]We find there was a difference in pay from 1 September 2021 between the Claimant and Fabian Marshall-Joseph who was the only other apprentice of £750.00 PA and the Claimant was being paid at a lower rate than Fabian Marshall-Joseph. However, we find that the reason for this difference in pay is that at the time that the Claimant was contract was extended on 1 September 2021, Fabian Marshall-Joseph had passed BTEC 3 and had a certificate verifying that he had passed the BTEC 3 which the Respondent had seen in August 2021, whilst the Claimant did not have anything to verify that she had passed BTEC level 3 by 1 September 2021 and that is the reason why Fabian Marshall-Joseph was being paid more than the Claimant was because he was on a different contract, different grade and was in a different situation to the Claimant because he was now doing his level 4 and therefore doing different work to the Claimant. The Claimant’s grade were not confirmed until October 2021. The Claimant could start the level 4 course until the start of the academic year and so the Claimant was in a different situation and on a different contract to Fabian Marshall-Joseph for the entire academic year of 2021-2022.[173]The Claimant’s evidence was that the reason why she did not re-enrol to continue her studies and move to an appropriate contract is because of the Respondent’s delay in dealing with her grievance. The Claimant gave evidence that she believed that Ms Jacques who made a decision on her grievance deliberately delayed the grievance. We do not accept the Claimant’s evidence on this point. Furthermore we do not accept that the Respondent’s delay was intentional in respect of the grievance, it is clear that there were a number of inevitable delays which extended the time for the grievance to be completed but in any event the complexity of the grievances which included 23 complaints was the reason for the extended period to investigating the grievance.[174]On 2 September 2021, the Claimant emailed Neil Richardson regarding her sick certificate expiring on 2 September 2021 and that she said that she was concerned she wasn’t being paid properly and she was unable to access her payslip [941] . Neil Richardson emailed the Claimant on 2 September 2021 18:21 [939] to explain that he had tried to get her access to laptop and that she should let him know. But by email dated 26 September 2022, Neil Richardson advised the Claimant that as she had not accessed her laptop since February 2022 and the laptop account deactivated after 90 days, the Respondent would need to get the Claimant a new laptop as her old one could not be reactivated [1387]. HRM- 8 September 2021[175]By letter dated 3 September 2021 [944-945], the Claimant was invited to attend an HRM meeting for 8 September 2021, the Claimant was also sent a copy of the managing ill health policy with the letter [945]. The Claimant made a recording of the HRM on 8 September 2021 . The Claimant produced notes at pages 961-982. We find that the notes are not a transcription of the recording as there are not times stamps on the notes. We find that the Claimant made minutes from the recording and so the notes are not entirely reliable as there must be an element of self service in respect of the notes and the Claimant was able to provide the original recording but did not.[176]At the HRM on 8 September 2021 Neil Richardson stated, “I know there are a few others, but that's been a significant impact on your well, being physically and mentally and physically over the last couple of years and I sometimes think or I wonder whether that actually masks the discussion about the fact that you're employed to do a job as well.” [967] And “Uh, it does seem to sort of run merge into two and I'm not sure whether we can make a bit of an effort to actually sort of try to separate those two, so….”. then later in the meeting Neil Richardson stated “I would like to think you know, having impairments and disability, uhm, shouldn't affect, that shouldn’t be a reason because you’re and employee employing, you are on par with everyone else and everyone should have equal expectation placed on them and also they should have an expectation of their employer as well. So I don't know that that would…. I think you're doing yourself a disservice saying because of that you need some something more structured and focused. I think it's just taking it and stripping it back to the bare principles or you're in a job where that you're expected to do.” [969] Neil Richardson accepted that he said these comments in oral evidence. The Claimant’s evidence was that these comments made her feel very isolated, excluded and very removed from the conversation. She said that she felt as though the comments were abrasive, unsupportive and obstructive. These were comments that came across as ill-intended with no foundation or basis and more importantly, it made her feel like yet again, that her being disabled was such an inconvenience and a burden to them. Mr Richardson was simply just twisting the knife further. However, the Claimant’s oral evidence when asked about these allegations of harassment said that she didn’t know what her case was against Neil Richardson. However, we do not give that answer significant weight as we were aware that at that point when the Claimant was giving evidence she said that she was overwhelmed and was fighting what her body felt, and the Claimant was visibly crying.[177]Neil Richardson’s explanation for the comment was that it was intended to be sympathetic. He said that he thought everyone should be treated equally, with reasonable adjustments if they have to go the extra mile then they should make sure there is equal opportunity for employees. Neil Richardson’s evidence was that he hoped that if something was construed in the wrong way by the Claimant then he thinks that she would say so and she didn’t say anything at the time. We note that the Claimant was supported by her sister at that meeting, yet the Claimant did not mention that she was in any way made to feel an inconvenience and a burden by this comment. We find that she was not. The Claimant admitted in evidence that Neil Richardson was supportive of her in ways, (although she did not specify which ways) and that she had never complained that Neil Richardson talked to her in a less than complementary way. The Claimant admitted that she did not raise it in her second grievance. The comments were neither abrasive nor obstructive or unsupportive. We accept Neil Richardson’s evidence and find that the comments were sympathetic and supportive.[178]We find Neil Richardson’s comments were not questioning whether the Claimant could continue in her role and complete the apprenticeship. The whole point of the meeting on 8 September 2021 was to identify the stressors that might be preventing the Claimant coming back to work as is evident from Neil Richardson’s questions to the Claimant in the meeting. He asked the Claimant, “Uh, so do you feel that the main barrier to working is barriers are because of the other stressors now so? How do you feel that you would cope with your health conditions if they were removed? Is that too difficult to quantify maybe?” And the Claimant gave a very long response, ending in “So yeah, it's very hard to give you just one answer and to say - Neil, if you remove XYZ, I'll be able to come back. I'll be able to do it.” [967]. These quotes are indicative of this point.[179]By letter dated 15 September 2021 [957-960] Neil Richardson wrote to the Claimant with a summary of what was discussed and agreed at the 8 September HRM meeting. Neil Richardson agreed that the Respondent would look into the factors affecting the Claimant’s stress [958]. It was also agreed that the Respondent would not continue with the HRM process until after the outcome of the grievance [959]. Neil Richardson explained that the Respondent needed to have the Claimant’s grade for her BTEC level 3, so that they could look into whether Southbank University would take the Claimant for the level 4 qualification [959]. Neil Richardson stated in his letter “So have a think and if you do want support then let me know and I will try and help.” [959] We find that the Claimant did not confirm what she wanted to do regarding in enrolling in a level 4 course and did not pursue the issue of re-enrolment.[180]By email dated 16 December 2021, Chris Allen Smith set out the Respondent’s position in respect of the Claimant’s employment and expressed in that email “That notwithstanding though, if both SB and Oaklands are prepared to accept her onto level 4 on the current basis, that removes one potential obstacle to her continuing on the courses and as an apprentice. However, before we offer a long extension, I think we need to be confident that she will be able to attend and complete whichever college she chooses and will be able to do the work we require of her alongside the college work (with any reasonable adjustments I place). As she's still off sick and hasn't AFAIK therefore attended OH to agree/be advised on further reasonable adjustments, I don't think we can yet have the confidence that any health or mobility issues can be overcome to let her complete the course and gain a reasonably full range of apprentice work experience alongside that (and I'm especially concerned about site visits and the like here) With that in mind I'd suggest we plan on a 6 month extension for now and make it clear to her that we need to have a plan in place to deal with the points above before we offer the longer extension and a firm place on the course - and that she needs to work with us and OH in identifying her needs and producing that plan, it is not something we can do for her. Does that sound reasonable, or am I missing something here? I don't want to commit everybody to something unless and until we know it is workable.” [1745] Grievance[181]On 29 June 2021 the Claimant submitted a grievance. The Claimant’s grievance dated 28 June [867-877] and was emailed to Neil Richardson on Friday 29 June 2021 at 21:44 [884].[182]In the grievance the Claimant complained that the Respondent had failed in their duty to make reasonable adjustments Stress risk assessment; detailed workstation assessment; multi-adjustable ergonomic chair with lumbar support built in larger Laptop and voice recognition software, all of which the Claimant said were outstanding at that point. The Claimant complained that she felt that she was subjected to excess workplace harassment. We find that the focus of the grievance is on the future of the Claimant’s employment, and in particular the Claimant not attending site visits. We find that the Claimant does make references to a breach of the Equality Act 2010 in referencing failure to carry out reasonable adjustments in her grievance.[183]After the weekend on Monday 2 July 2021, Neil Richardson emailed the Claimant to confirm receipt of her Grievance letter and form [884]. On 22 July 2021, Chris Allen-Smith sent the Claimant a notice of investigation letter [899]. On 30 July 2021, Valerie Weaver was appointed to the role of Investigating Officer in respect of the 29 June 2021. On 3 August 2021 [901], Chris Allen-Smith informed the Claimant that he had received the paperwork and acknowledged that the Claimant was not well. Valerie Weaver's was annual leave from 16 August 2021-17 August 2021. By letter dated 24 August 2021, Valerie Weaver introduced herself to the Claimant and asked the Claimant if she felt well enough to attend an investigation meeting [925]. The Respondent started the investigation even though they had not yet heard from the Claimant and interviewed Victoria Saunders on 27 August 2021 [927] and Neil Richardson on 3 September 2021 [946]. The Claimant was issued with a sick certificate dated 31 August 2021 [938] for 6 weeks, stating that the Claimant was not fit to work due to stress exacerbating ongoing medical problems of joint pain, tiredness, psoriasis, under different hospital specialities [938].[184]On Sunday 5 September 2021, the Claimant acknowledged that she had received Valerie Weaver’s letter dated 24 August 2021 after a period of 2 weeks. The Claimant confirmed she was happy to attend a meeting via Microsoft Teams but wanted the latest date by which she could provide further evidence, as she wanted to share some further evidence. On Tuesday 7 September 2021, Valerie Weaver was on annual leave until 8 September 2021. On 8 September 2021, Valerie Weaver wrote to the Claimant to offer a date for a meeting towards the end of September or early October. On 13 September 2021, Valerie Weaver emailed the Claimant to ask if she was happy to receive documents via HertsFX [986]. The Claimant responded the same day to say that she was happy to receive documents via HertsFX. By letter dated 13 September 2021, Valerie Weaver wrote to the Claimant offering two dates for an investigation meeting of 30 September 2021 and 1 October 202 [984-5]. Valerie Weaver was on annual leave from 20 September 2021 until 21 September 2021, and 24 September- 25 September 2021, 27 September- 28 September 2021. On 22 September [997], Valerie Weaver chased the Claimant for a response to her letter offering 2 dates for an investigation meeting [997]. On 29 September 2021, the Claimant finally responded to the offer of 2 dates and opted for 1 October [999] and sent some documents (2 probation documents). [999][185]On 24 September 2021, the Claimant emailed Valerie Weaver to confirm she could attend an Investigation Meeting on 1 October 2021. On 28 September 2021, the Teams invitation was sent to the Claimant. The Claimant attended the investigation meeting on 1 October 2021 [1001- 1014]. On 8 October 2021, Valerie Weaver emailed the Claimant requesting further information pages [1021]. Also, by letters dated 8 October 2021, Katey Skeggs and Fabian Marshall Joseph were invited to attend an interview in respect of the investigation.[186]On 8 October 2021, Valerie Weaver emailed the Claimant requesting documents discussed in the investigation [1021]. On 11 October 2021, Fabian Marshall-Joseph emailed Valerie Weaver requesting that the date of his interview be moved. On 12 October 2021, the Claimant emailed Valerie Weaver with two probation supporting documents [1108]. On 13 October 2021, Fabian Marshall-Joseph emailed Valerie Weaver saying that he was unable to make the proposed date of the investigation meeting. On 14 October 2021, Katey Skeggs attended her investigation interview [1022-1026]. The Claimant was issued with a sick certificate dated 14 October 2021 [1027] for a period of 6 weeks stating that the Claimant was not fit for work due to stress exacerbating other medical problems, joints and psoriasis.[187]On 15 October 2021, Valerie Weaver was on annual leave until 16 October 2021. On 18 October 2021, Cally Brown attended an investigation interview.[188]On 18 October 2021, Valerie Weaver emailed the Claimant, repeating her request for supporting documents [1029]. On 20 October 2021, Fabian Marshall-Joseph attended an investigation interview [1030]. On 21 October 2021, the Claimant responded to Valerie Weaver’s email dated 18 October 2021, stating she would respond to 18 October 2021 email when she was able to [1034]. On 22 October 2021, Valerie Weaver emailed the Claimant to acknowledge and confirm that she would await documents when the Claimant was able to send them [1035]. The Claimant eventually responded on Thursday, 25 November 2021, but only sent some documents (two Oaklands College IPL Pages [1203] that Valerie Weaver has asked for but commented, “It is concerning that I am yet to receive a Grievance outcome considering my initial grievance” [1042]. We find that it was entirely unreasonable for the Claimant to be asking for a grievance outcome when she had not provided all the documentation that had been requested since early October 2021.[189]On 26 October 2021, Valerie Weaver emailed Victoria Saunders requesting further information. On 10 November 2021, Valerie Weaver emailed the Claimant asking how she was doing. On 25 November 2021, the Claimant emailed Valerie Weaver stating, “It is concerning that I am yet to receive a Grievance outcome considering my initial grievance was sent on 29th June 2021”.[1042] On 23 November 2021, the Claimant was issued with a sick certificate for a period a 6 weeks [1040] because of stress exacerbating other medical problems joints and psoriasis.[190]On 29 November 2021, Valerie Weaver went on annual leave until 30 November 2021. On 30 November 2021, Valerie Weaver emailed the Claimant and asked her if she had reviewed the investigation notes following her investigation meeting, and whether she was able to provide a signed copy and assured her that her grievance was being investigated as quickly as possible, but that it was subject to service demands and availability [1043]. We find that the Claimant’s email dated 25 November 2021 is the Claimant expressing dissatisfaction about how long it is taking to investigate the grievance. We find that Valerie Weaver’s response is prompt and deals with the complaint sufficiently.[191]From 3-10 December 2021, Valerie Weaver was Covid-positive and was off work. On 7 December 2021, the Claimant emailed Valerie Weaver to confirm that she was fine with Valerie Weaver continuing with her investigation with the investigation notes as they were and would forward Valerie Weaver, her version of the minutes when she was able to. The Claimant complained that the current timeframe of 6 months was unreasonable for the grievance process [1044]. We find that the Claimant was being obstructive in by suggesting that somehow Valerie Weaver could finalise the investigation without a signed copy of the notes and yet have an expectation that her notes would be taken into account at the relevant point of the investigation, with no appreciation of the process involved. We appreciate the Claimant was not well at the time and so the criticism is not in respect of her not being able to review the notes at the time.[192]On 16 December 2021 Valerie Weaver emailed the Claimant to explain that the investigation was being dealt with as quickly as possible and offered to send the Claimant a hard copy of the minutes in the post [1045]. From 17-18 December 2021 Valerie Weaver was on annual leave. We find that Valerie Weaver’s response on 16 December to the Claimant’s concern raised in her email dated 7 December about the delay is prompt, having regard to Valerie Weaver's time off and deals with the complaint adequately.[193]On 24 December 2021, Valerie Weaver fractured her right wrist and had a splint until 14 February 2022. We find that this injury would have inevitably slowed Valerie Weaver in her investigation. Within this period, Valerie Weaver was on annual leave on 7 January 2022 & 4 February 2022.[194]On 4 January 2022, the Claimant was issued with a sick certificate for a period a 1 month [1046] because of stress exacerbating pre-existing conditions of joint pain, psoriasis, and thyroid problems. Then on 3 February 2022, the Claimant was issued with a sick certificate for a period a 2 months because of stress exacerbating pre-existing conditions of joint pain, psoriasis, and thyroid problems. Having investigations for low cortisol [1047].[195]On 15 February 2022, Valerie Weaver had an investigation meeting with Stephanie Dodd and Adrian Redrup, which she set up on 9 February 2022. Also on 15 February 2022, Neil Richardson received the Claimant’s second grievance sent to him [1050-1054]. Valerie Weaver was on annual leave from 21-22 February 2022.[196]By letter dated 25 February 2022 [1061] Chris Allen Smith sent the Claimant an acknowledgement of her second grievance and confirmed that will be considered as part of the ongoing grievance investigation. The letter also confirmed that Chrissy Jacques, Head of Highways Operations, would now be the Hearing Officer for the Claimant’s grievances. On 2 March 2022, Valerie Weaver received the Claimant’s second grievance by email. On receipt of the Claimant’s second grievance, Valerie Weaver emailed both Victoria Saunders and Neil Richardson to request further information. On 31 March 2022, the Claimant was issued with a sick certificate for a period of 6 weeks because of stress exacerbating preexisting conditions of joint pain, psoriasis, and tiredness [1073].[197]On 4 March 2022, Valerie Weaver went on flexi leave. Valerie Weaver only received a response to her request for further information from Victoria Saunders on 7 March 2022 and 4 April 2022 [1074], a response from Neil Richardson on 18 March 2022. Valerie Weaver was on annual leave on 27 April 2022, 4 & 18 May 2022.[198]On 12 May 2022, the Claimant was issued with a sick certificate for a period of 4 months because of stress exacerbating pre-existing conditions [1082].[199]On 20 May 2022, Valerie Weaver telephoned Serco re SR00072835 ESR Larger Laptop, who told her that the larger laptop was ready for the Claimant to collect on 15 July 2021 and that the Claimant booked to collect it on 29 July 2021. However, the Claimant cancelled her collection on 21 July 2021 and rebooked for 5 August 2021. The Claimant was then on sick leave from 22 July 2021 to 2nd September 2021. On 2 August 2021, the Claimant rebooked again for 9 September 2021. However, Serco told Valerie Weaver that the Claimant did not collect the larger laptop as booked. Serco then emailed the Claimant a further 3 times before closing the request on 8 October 2021 [1152]. Valerie Weaver was on annual leave from 30 June- 4 July 2022.[200]The Claimant’s oral evidence is that she did not have the laptop collected until end of 2022 start of 2023 and it was collected on her behalf by someone in the Respondent. We find that the fact that the Claimant did not arrange for it to be collected when she could have done this at any time indicates to us that it would not assist her when she was off sick. 201. [1441] In the HRM meeting on 10 March 2023, Neil Richardson confirmed that he tried to ensure that the Dragon software was on the bigger laptop.[202]On 25 June 2021, [1496] Victoria Saunders was emailed to confirm that her request for the Claimant to have Dragon software on the Claimant’s laptop had been approved.[203]We find that whilst most of the activity (insofar as Valerie Weaver interviewed relevant people for the investigation) takes place before December 2021, there is another grievance that is submitted in February 2022, and this second grievance also needed to be investigated. As soon as Valerie Weaver received the second grievance, she sent out requests for information, but she did not receive all the information she needed until 20 May 2022, which we find is a reasonable period within which to further investigate.[204]By email dated 26 May 2022, Valerie Weaver sent the Claimant an update on the grievance and explained that she was finalising the report and would be submitting it to the hearing officer. [1083]. Valerie Weaver submitted the grievance report on 4 July 2022. [1105-1178] We find that the period of approximately 6 weeks it took for Valerie Weaver to finalise the investigation report was a reasonable period having regard to the fact that Valerie Weaver was having to do this work alongside her day job and that there was 23 allegations which were complex and lengthy and a large amount of information to consider. [1173].[205]By email dated 5 July 2022, the Claimant was informed that Chrissy Jacques would be hearing her grievance [1179]. The Claimant submitted her comments on the grievance investigation report on 2 September 2022 [1181- 1199]. The Claimant attended the grievance hearing held on 6 & 12 September 2022 with Chrissy Jacques. The Claimant’s sister did attend as an observer.[206]On 13 September 2022, the Claimant was issued with a sick certificate for a period from 12 September – 13 December 2022 because of stress exacerbating pre-existing conditions [1386].[207]By letter dated 1 November 2022, the Claimant’s grievance was partially upheld in a very detailed grievance decision of 19 pages [1388-1407]. In particular, the allegation that the Respondent did not complete a stress risk assessment was upheld. Ms Jacques stated in her letter, “ I can find no reasonable justification for the Risk Assessment not having been completed.” [1393] But the allegation regarding the detailed workstation assessment was not upheld. Ms Jacques' conclusion was “Detailed workstation assessment. This remains outstanding, the Investigation Report (page 41) confirms Access to Work will be able to carry out a detailed workstation assessment and make recommendations, this requires input from Jheshalya to progress and therefore I do not accept that this amounts to disability discrimination and victimisation and harassment. I do not uphold.” [1395][208]Ms Jacques also partially upheld the allegation that included the Respondent’s failure to complete the reasonable adjustments form [1404]. But concluded “I see no reason to consider the need for a Reasonable Adjustment Form prior to Victoria going on maternity leave in January 2020” [1404]. Ms Jacques also found in respect of the complaint in respect of the Respondent not rectifying matters in a timeous manner, “As recommendations were made in the Occupational Health Reports actions were started, for example to secure a chair, a larger laptop and voice recognition software. This report would be the trigger for such actions. There is no evidence that requests for reasonable adjustments were made prior to the Occupational Health Reports” [1406]. Ms Jacques did not find any disability discrimination either.[209]By letter dated 15 November 2022, the Claimant appealed the grievance outcome [1408-1411]. Dismissal[210]Following the outcome of the Claimant’s grievance, the Claimant was invited by letter dated 20 December 2022 to attend an HRM for 12 January 2023 [1413]. However, the Claimant wrote to the Respondent by email dated 1 January 2023, stating that she was not able to attend an HRM until after 15 February 2023 due to multiple appointments [1415]. The Claimant stated in her email that there had been no change and there was no update. The Claimant confirmed to Neil Richardson that she had been given a new laptop on 5 January 2023 [1414].[211]The Claimant submitted a sick certificate dated 2 February 2023 for a period of 3 months because the Claimant was not fit for work due to “ongoing physical problems- psoriasis jt pains, thyroid problems, allergies stress and low mood” [1418].[212]The Claimant’s grievance appeal was held on 10 February 2023 by Anthony Boucher [1419-1428]. By letter dated 6 March 2023, the outcome of the Claimant’s grievance appeal was that it was not upheld. [BS 208- 218][213]By letter dated 16 February 2023, the Claimant was invited to attend another HRM meeting for 22 February 2023 [1433-1434]. However, the Claimant did not check her email in respect of the invite to the HRM for 22 February 2022, as she said that she was trying to minimise external stressors [1435] and so the meeting was rearranged eventually by letter dated 28 February 2023, inviting the Claimant to attend an HRM for 10 March 2023 [1438-1439]. The Claimant did attend the meeting, and the Claimant was sent the summary outcome of the meeting by letter dated 14 March 2023 [1440]. The Claimant said at the meeting that her conditions had gotten worse, and the stress in relation to the grievance had exacerbated her conditions. The Claimant said that a return to work seemed impossible at that moment. The Claimant was referred to Occupational Health. The Claimant confirmed that she had received the bigger laptop. The Claimant was warned in the letter “should the OH advice be that you are not fit to work and having considered that you said in the meeting that your health conditions have worsened, and you could not envisage a return to work at this stage, one potential outcome could be that we convene an Ill Health Capability Hearing which could ultimately lead to your dismissal.” [1441-1442][214]The Claimant attended an Occupational Health telephone consultation on 3 May 2023 with the Occupational Health advisor, Dr Krishna. Dr Krishna reported on 3 May 2023 [1466-1468] “The main issue currently impacting on her fitness for work is her Musculo-skeletal symptoms and there is potential with further treatments recommended by the rheumatologist in the coming months that her symptoms will improve but timescales currently remain unclear for a possible return to work the medium to long term outlook will depend on the response she makes to further treatments.” [1467].[215]Dr Krishna’s advice on the outlook of the Claimant returning to work was “Following assessment today and based on Ms Naidoo’s significant underlying symptoms and functional limitations she is unfit for her own role and any other work for the foreseeable future, and there is currently no clear indication when the situation may change.” [1466] Dr Krishna added, “There are no workplace adjustments that I can currently recommend that are likely to enable a return to work in the near future.” [1467][216]The Claimant submitted a sick certificate dated 9 May 2023, which stated that the Claimant was not fit to work for a period of 3 months because of stress exacerbating pre-existing conditions- psoriasis, joint pains, thyroid problems [1469].[217]By email dated 7 June 2023, Victoria Saunders explained in an email to Neil Richardson the impact of the Claimant not being in the workplace as her “.. being absent from the team had less of an impact on the day to day delivery we provide for the Highways Service. The impact will be felt later on as her absence is potentially depriving the service of a future trained technical person.” [1470][218]By letter dated 18 July 2023 [1481-1482], the Claimant was invited by Rachel Adler, Director of Finance and Business Support, Growth and Environment, to attend an ill health capability review hearing (‘Capability Hearing’) for 1 August 2023. The letter stated, “The Hearing will consider your ill-health record and decide whether there are any further actions the Council can take to assist your continued employment in your current post. You should be aware that one potential outcome of this Hearing might be your dismissal from employment on the grounds of incapability to render an efficient service.”[1481] The letter attached the Respondent’s statement of case with appendices to be presented by Neil Richardson. The Claimant requested that the Capability Hearing be rescheduled, and the hearing was moved to 14 August 2023. By email dated 25 July 2023 to Vicky Martin, Senior HR Officer, the Claimant requested that the HR Officer (who was there to advise Ms Adler as the hearing officer) not be in attendance, and this was agreed to by the Respondent in an email dated 27 August 2023 from Ms Martin [1489]. By email dated 8 August 2023 [1490-1491], the Claimant complained that she could not open some of the electronic documents that she had been sent, and the hard copy that she had been sent was of poor quality and an extremely small sized document [1491]. Ms Adler responded to the Claimant’s complaint by email dated 9 August 2023 and explained that the issues raised would be addressed at the Capability Hearing.[219]On 25 July 2023, the Respondent received Occupational Health advice from Dr Krishna in an email about ill health retirement. Dr Krishna stated, “To clarify the last OH report, although JN was experiencing significant musculo-skeletal symptoms there is potential that further treatments planned can lead to an improvement in her symptoms and functional abilities and it is currently not possible to state that she is likely to be permanently unfit for her own role and IHR criteria from the LGPS is in my view unlikely to be met at this stage.” [1484][220]The Capability Hearing took place on 14 August 2023 [1830-1984]. At the Capability Hearing, the Claimant stated that the failure to give her a 2 year contract and instead a 6 month contract meant the stress experienced led to the deterioration of her health [1550]. Furthermore, the Claimant stated that if the reasonable adjustments had been implemented at the time, her health would not have deteriorated [1551]. The Claimant stated that her absence arose from stress at work [1552]. The Claimant’s complaint repeatedly was that the provision of breaks [1552], time off for medical appointments [1553], and working from home [1552] were not reasonable adjustments because other non-disabled people were allowed this as well. The Claimant said that where she was at that time “ it was hard to imagine a return to work especially when she did not have a plan” [1557] and that what she needed were for reasonable adjustments to have been put in place but they were not and that led to her conditions getting worse and led to her going off sick in July 2021. Her conditions were the worst they had ever been, and she had not responded to treatment. [1557] The Claimant said that if all the stress she was experiencing was removed that she could possibly be fit to return to work [1557]. The Claimant was told that Victoria Saunders was available if she wanted to ask questions, but the Claimant said that she did not wish to do so.[221]The Claimant said in the meeting that she agreed with the Occupational Health advice in the report dated 3 May 2023 that she was unfit for her role and any other work in the foreseeable future, and that there's no indication of when this might change [1557]. The Claimant agreed that it was fair to dismiss her based on the fact that she was unfit now and unemployable but asked that the Respondent consider all the events that led to where she was then. The Claimant did not have a timescale for returning to work. The Claimant added that she did not agree with the Doctor’s opinion 100% because no other options were explored in respect of reasonable adjustments. The Claimant identified in the Capability Hearing that the main barriers to return to work were mobility issues and lots of appointments, and no effective treatment plan and nothing to address her acute pain [1558]. In the Capability Hearing, the Claimant’s views on redeployment were that she was not opposed to it but could only be considered after the external stressors were removed. The Claimant referred to the Employment Tribunal case as taking up a lot of her time. The Claimant said that a stress risk assessment would have helped previously, but it was now too late. The Claimant said that if there was a plan prior to her absence that would have helped, but now there was a breakdown in the relationship between herself and the Respondent. The Claimant was told that if she wanted ill health retirement, it was a process that she would have to initiate.[222]In oral evidence, the Claimant admitted that she couldn’t do alternative roles, although she wanted a discussion about it by the Respondent. The Claimant accepted that her views were taken into account on the issue of returning to work. The Claimant accepted that she did not ask for more time before the Respondent made the decision to dismiss her, but she did not accept that the Respondent should have dismissed her at the time, as the Respondent agreed that she was not having an effect on service delivery. The Claimant said in oral evidence that it was the failure to provide the voice recognition software, DSE assessment and the adjustment in hours that was outstanding. The Claimant’s evidence was that the failure to complete the reasonable adjustments added to her stress and added to the deterioration. When it was put to the Claimant that if reasonable adjustments were in place by September 2021, would she have returned to work, the Claimant said it was only a possibility. The Claimant’s evidence was that it was the fact that would have brought her back to work in September 2021. The Claimant also specifically referred to not being put on the right contract.[223]After the hearing, on 15 August 2023, the Claimant was emailed by HR with an explanation about ill health retirement [2000]. The Claimant asked to provide the Respondent with a decision no later than 18 August 2023 as to whether she wanted to initiate the process. The Claimant was told it was only if the Respondent agreed, having considered medical evidence, that the termination of employment would be by mutual consent. Subsequently, the Claimant responded on 16 August [1999] asking for more information, which HR responded to by providing the Claimant with a link to the LPPA website, which set out the framework of ill health retirement [1996]. The Claimant then sent an email dated 18 August 2023 with a number of follow up questions, which the Respondent answered on 21 August 2023 and provided medical advice they had sought in respect of whether the Claimant would be considered eligible for ill health retirement. We find that the Respondent did give the Claimant adequate time and information to consider the question of initiating the process of ill health retirement so that the Claimant’s position could be considered before the decision in respect of the Capability Hearing was made.[224]By letter dated 25 August 2023 [1499-1520 1544-1561] the Claimant was dismissed on the grounds of ill health capability and given 1 months’ notice in lieu. Ms Adler states that the reason for the Claimant’s dismissal was the Claimant’s long term absence of over 2 years. She took into consideration “ your capability to undertake your role at this point, your likely return to work date, whether or not there are any adjustments that can be put in place to facilitate your return to work at this time, whether redeployment is an option and whether you have requested to be considered for ill health retirement. I have also asked myself, would it be reasonable to wait any longer before dismissing.” [1560][225]In Ms Adler's dismissal letter, she considered that the Claimant was given an opportunity to comment on the 3 May 2023 occupational health report before it was released to the Respondent, and the Capability Hearing was also an opportunity to comment on it. The most recent Occupational Health advice was that the Claimant was not fit for work in her role and any other work for the foreseeable future, and there was no clear indication as to when this might change and the Claimant agreed with this and was unable to provide a timescale for return. There were no reasonable adjustments that could be made, and Ms Adler considered that redeployment was not an option, and given the Occupational Health advice, she considered it was not reasonable to wait any longer.[226]Ms Alder stated in the letter, “Whilst your absence has not directly impacted service delivery, the purpose of the apprenticeship positions is to provide training opportunities in order to assist apprentices to undertake relevant qualifications. This is to assist us in filling hard to fill engineering positions which are needed so that the county council can develop, plan and programme the right works at the right time on our highways network, and so that we have the necessary skills to hold our contractors to account for the work that they do on the ground” [1560]. Ms Alder did not agree with the Claimant’s position that there was no evidence that reasonable adjustments were not put in place whilst the Claimant was in the workplace, nor did the Claimant put forward any reasonable adjustments to enable her to return to work. She did not agree that there had been disability discrimination, but that the Respondent had supported the Claimant over the last 2 years. The Claimant's final day of employment was stated as 25 September 2023. The letter advised the Claimant of her right to appeal.[227]We accept Ms Alder’s oral evidence that the reason for her dismissal was because the Claimant had been off work for 2 years and the occupational health report spoke of her inability to return to work. Ms Alder’s oral evidence was that she did consider whether it was reasonable to wait longer, but with what the Claimant said at the Capability Hearing, there were no upcoming events that would change that. Ms Adler gave evidence on the Respondent’s procedure regarding capability dismissals and stated that when it was put to her that the policy [119] refers to warnings, she said that it depended on each case and not always implemented sequentially, that they may go back and forward depending on the case. The Respondent’s process regarding capability states, “Please note where there are a series of absences that impact on the service delivery it is not necessary for warnings to have been issued prior to moving to an Ill Health Capability Hearing. The employee must have been made aware and given suitable notice of the need to improve their attendance and the consequences of failure to improve.” [SB120] We find that there was no obligation to issue a written warning at the HRM meeting. In any event, the Claimant was warned about the consequences of her health not improving in the letter dated 14 March, following the 10 March 2023 HRM. Ms Alder gave evidence that whilst she recognised there was little operational impact on the Respondent in respect of the Claimant’s employment, that was a financial impact on the Respondent. Ms Alder explained that she wrote notes which were the management checklist for ill health to capture her thoughts as to her decision [SB200], and these notes refer to little operational impact and ill health retirement, as no application was made. We find that advice from the Occupational Health advisor was sought in July 2021 so that the Respondent could consider ill health retirement before a capability dismissal.[228]By email dated 5 September 2023, the Claimant indicated that she wished to appeal her dismissal [1542]. However, the Claimant stated that she was not able to set out her grounds of appeal without listening to the recording of the hearing, which had not yet been sent to her due to technical difficulties. The Claimant provided her grounds of appeal which were numbered (and are set out in bold within brackets below) by email dated 27 October 2023 [1565-1568] which are in summary(1) & (10) Ms Adler did not consider the grievance,(2) whether all reasonable adjustments had been exhausted or (9) ill health retirement before making a decision to dismiss, (5) Ms Alder did not have the relevant experience to carry out the Capability Hearing. (4) The Claimant believed that the decision to dismiss her was predetermined and (13) biased and not impartial, (6) those at the hearing were doing everything to avoid providing a workable solution. Furthermore, (7) Neil Richardson could not answer questions or provide an accurate definition of disability discrimination and (8) admitted that reasonable adjustments had not been exhausted, and (11) Ms Adler accepted that the Claimant’s absence had no operational impact, and (12) the Claimant was not offered redeployment. (14) The failure to provide adequate paperwork affected her ability to prepare adequately for the hearing.(3) The Claimant said that she did not say that she did not want to question Victoria Saunders, but this was decided by HR.[229]Mr Alex Woodman, Executive Director & Chief Fire Officer, Community Protection, heard the Claimant’s appeal against dismissal on 29 February 2024. The Claimant did not attend due to the potential impact the Claimant said it might have on her health.[230]By letter dated 6 March 2024 [1583 -1589], the Claimant’s appeal was not upheld. Mr Woodman decided that, as the hearing was not a rehearing but a review, he would not listen as requested by the Claimant to the 4 hour recording of the Capability Hearing. Mr Woodman considered that the Claimant had been given an opportunity to present her case to Ms Adler and ask for Victoria Saunders to ask questions and apply for ill health retirement, the evidence was clear that the Claimant was incapable of returning to work at the Council with or without reasonable adjustments [1589]. Ms Adler was not concerned with historical matters that had been addressed in the grievance. Neil Richardson’s reference to reasonable adjustments not being exhausted was just saying that the door to reasonable adjustments would never be closed and would be reviewed on an ongoing basis [1587]. Mr Woodman considered having seen the evidence that the Claimant was supported in the workplace and the Respondent had every intention of supporting the Claimant to get back to the workplace. Ms Adler was independent and took advice from HR to support her and followed procedure correctly and had no preconceived view of the Claimant’s case. The Claimant herself ruled out redeployment in the Capability Hearing and did not put forward the desire to be redeployed in her appeal. Mr Woodman considered the operational impact of the Claimant’s absence from the workplace. Time[231]The Claimant contacted ACAS on 24 December 2021 and an ACAS early conciliation certificate was issued on 5 January 2022. [44] The Claimant issued her first claim form on 11 January 2022 [17-25]. The claim form was drafted by a solicitor. The Claimant accepted in evidence that her sister is a solicitor and that her sister was supporting her through the process at least since May 2021. The Claimant accepted that she knew the Equality Act 2010. Although the Claimant denied in evidence that she had access to employment legal advice or knew of the 3 months’ time limit, she did accept that she could have taken legal advice. Furthermore, we note that by email dated 10 May 2020, the Claimant’s sister threatened Oaklands College with legal action [642]. At the 25 May meeting, the Claimant’s sister threatened legal action against the Respondent jointly with the College [775]. The Claimant’s evidence was that the reason she did not bring an Employment Tribunal earlier was that she was waiting for the grievance to be dealt with. However, we do not accept the Claimant’s evidence on this, the Claimant had access to legal advice to know what the time limits were.[232]Following the Respondent’s response form being accepted, there were standard orders for the exchange of witness statements for 9 August 2022 [61]. There was a case management preliminary hearing on 2 August 2022, but no orders for witness statement exchange were issued at that hearing. There was a second case management preliminary hearing on 7 November 2022, where the Claimant was represented by Counsel, Mr Harding. The hearing was relisted for trial for 11-18 September 2023. Orders were made at paragraph 25 to include exchange witness statements for 7 July 2023 [119]. At a third case management preliminary hearing was on 28 May 2024, where the order was made that witness statements are to be exchanged on 27 September 2024 [226]. We find that there was no order for the parties to exchange witness statements a day before the Claimant was dismissed. The Law Time limits
The Law
[233]Section 123 Equality Act 2010 sets out the time limits in respect of discrimination claims brought under the Equality Act 2010 (‘EqA’). Section 123 EQA says: “(1) [Subject to [[section 140B]]] proceedings on a complaint within section 120 may not be brought after the end of—• the period of 3 months starting with the date of the act to which the complaint relates, or• such other period as the employment tribunal thinks just and equitable. (2) Proceedings may not be brought in reliance on section 121(1) after the end of—• the period of 6 months starting with the date of the act to which the proceedings relate, or• such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section—• conduct extending over a period is to be treated as done at the end of the period;• failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something—• when P does an act inconsistent with doing it, or• if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”[234]The EAT in South Western Ambulance Service NHS Foundation Trust v King IRLR 168 EAT, establishes that where a Claimant wishes to assert that there is a continuing act or an act extending over a period of time, there must be findings made that there had been discriminatory acts committed by the Respondent in order to form part of an act extending over a period of time or a continuing state of affairs,[235]In Kingston upon Hull City Council v Matuszowicz 2009 ICR 1170, CA Sedley LJ added that ‘claimants and their advisers need to be prepared, once a potentially discriminatory omission has been brought to the employer’s attention, to issue proceedings sooner rather than later unless an express agreement is obtained that no point will be taken on time for as long as it takes to address the alleged omission’.[236]In Mr S Olenloa v North West London Hospitals NHS Trust [2012] UKEAT 05/99/11/XT the EAT advised Employment Tribunals that they must make findings of fact as to when the duty to make reasonable adjustments arise and then the Respondent failed to comply with the duty in order to determine date from which time runs regarding reasonable adjustments in circumstances where the Claimant relies on the failure to make reasonable adjustments as a continuing duty which was the cause of the Claimant.[237]In determining when an employer has made a decision not to make a reasonable adjustment, EAT suggest in the case of Fernandes v Department for Work and Pensions 2023 EAT 114 there must be a judicial analysis to identify the notional date if the Employment Tribunal do not make a finding that the employer has made a specific decision not to alleviate a disadvantage. Employment Tribunals must first identify the PCP that caused the disadvantage. It will be this fact that dates the start of the disadvantage and when it would be reasonable for the employer to take steps to alleviate the disadvantage. Following those findings of fact, the tribunal must then ask if there are facts which would allow it to conclude that the employer acted inconsistently with the duty to make adjustments. If there are, then that determines the notional date. If there is no inconsistent act by the employer, then there will come a time when it would be reasonable for the employee, on the facts known to him or her, to conclude that the employer is not going to comply with the duty. Disability[238]Disability is defined under Section 6 of the EQA 2010 as: “(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.”[239]When deciding at which point in time the Claimant is disabled, the Tribunal is to look at the time of the alleged discriminatory act: Cruickshank v Vaw Motorcast Ltd [2002] I.C.R. 729. 52.[240]Schedule 1 of EQA 2010, sets out how to assess whether the Claimant has fulfilled the components of the definition of disability. However, there is no specific definition of “impairment” in the EQA 2010, Tribunals need to refer to the case law in order to ascertain what impairment means in the context of the statute. In Rugamer v Sony Music Entertainment UK Ltd [2001] IRLR 664, the EAT defined “impairment” as: “Impairment” for this purpose and in this context, has in our judgment to mean some damage, defect, disorder or disease compared with a person having a full set of physical and mental equipment in normal. The phrase 'physical or mental impairment' refers to a person having (in everyday language) something wrong with them physically, or something wrong with them mentally.” (paragraph 34).[241]In the pre Equality Act 2010 authority of Goodwin v Patent Office [1999] I.C.R. 302, Morison J (President, as he then was), provided guidance on the proper approach for the Tribunal to adopt when applying the provisions of the Disability Discrimination Act 1995. At paragraph 3 of that decision, Morison J held that the following four questions should be answered, in order: a) Does the Claimant have an impairment which is either mental or physical? (the ‘impairment condition’); b) Does the impairment affect the Claimant’s ability to carry out normal day-to-day activities …, and does it have an adverse effect? (the ‘adverse effect condition’); c) Is the adverse effect substantial? (the ‘substantial condition’); and d) Is the adverse effect long term? (the ‘long-term condition’).[242]It is for the Claimant to prove that she is disabled, that is to show, on the balance of probabilities, that she satisfies all four elements, that is that: a) he has a mental or physical impairment, b) the impairment affects his ability to carry out normal day-to-day activities, c) the adverse condition is substantial, and d) that the adverse condition is long term.[243]In J v DLA Piper UK LLP [2010] ICR 2010 Underhill J (President, as he then was) suggested that although it was still good practice for the Tribunal to state a conclusion separately on the question of impairment, as recommended in Goodwin, there will generally be no need to actually consider the ‘impairment condition’ in detail: “In many or most cases it will be easier (and is entirely legitimate) for the tribunal to ask first whether the Claimant's ability to carry out normal day-to-day activities has been adversely affected on a long- term basis. If it finds that it has been, it will in many or most cases follow as a matter of common-sense inference that the Claimant is suffering from an impairment which has produced that adverse effect. If that inference can be drawn, it will be unnecessary for the tribunal to try to resolve the difficult medical issues.” (paragraph 40)[244]At paragraph 42 in J v DLA Piper UK LLP the EAT said: “The first point concerns the legitimacy in principle of the kind of distinction made by the Tribunal, as summarised at paragraph 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 dare say 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 laypeople, use such terms as “depression” (“clinical” or otherwise), “anxiety” and “stress”. Fortunately, however, we would not expect those difficulties often to 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 paragraph 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 common-sense observation that such reactions are not normally long lived”.[245]The Guidance on matters to be taken into account in determining questions relating to the definition of disability (“The Guidance”) states, at A3 and A5: “A3 The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects. [..]”[246]“A5 A disability can arise from a wide range of impairments which can be: […] impairments with fluctuating or recurring effects such as rheumatoid arthritis, myalgic encephalitis (ME), chronic fatigue syndrome (CFS), fibromyalgia, depression and epilepsy [..] mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias, or unshared perceptions; eating disorders; bipolar affective disorders; obsessive compulsive disorders; personality disorders; post-traumatic stress disorder, and some self-harming behaviour; mental illnesses, such as depression and schizophrenia; produced by injury to the body, including to the brain”.[247]The EHRC Code of Practice on Employment, at paragraph 7 of Appendix 1, puts it succinctly “What it is important to consider is the effect of the impairment, not the cause.”[248]Paragraph 16 of appendix 1 of the EHRC Code of Practice on Employment states “Someone with an impairment may be receiving medical or other treatment which alleviates or removes the effects (though not the impairment). In such cases, the treatment is ignored and the impairment is taken to have the effect it would have had without such treatment”.[249]In Herry v Dudley Metropolitan Council, [2017] ICR 610, referring to paragraph 42 of J v DLA Piper UK LLP, the EAT said this: “55.This passage has, we believe, stood the test of time and proved of great assistance to Employment Tribunals. We would add one comment to it, directed in particular to diagnoses of “stress”. In adding this comment we do not underestimate the extent to which work related issues can result in real mental impairment for many individuals, especially those who are susceptible to anxiety and depression. 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 no or little apparent adverse effect on normal day-to-day activities. A doctor may be more likely to refer to the presentation of such an entrenched position as stress than as anxiety or depression. An Employment Tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by an Employment Tribunal) are not of themselves mental impairments: they may simply reflect a person's character or personality. Any medical evidence in support of a 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 an 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. […]” “71. It is true that in paragraph 42 Underhill P said that in a case where mental impairment was disputed the ET might begin with findings as to whether there was a long-term effect on normal day-to-day activities, because reactions to adverse circumstances were not usually long lived. He was, however, not setting out any rule of law; he was considering a case where the principal diagnosis in issue was depression; and he did not rule out the possibility of a reaction to adverse circumstances which was long-lived. As we have explained above, when commenting on J v DLA Piper, there can be cases where a reaction to circumstances becomes entrenched without amounting to a mental impairment; a long period off work is not conclusive of the existence of a mental impairment.”[250]Section 212(1) Equality Act 2010 (‘EQA’) defines “substantial” as meaning “more than minor or trivial.” Providing guidance as to how to determine the question of substantial adverse effect, HHJ McMullen QC held in Rayner v Turning Point [2010] 11 WLUK 156, “that although the question of whether there is a “substantial” adverse effect is a matter of fact for the Tribunal to determine. The cumulative effects of an impairment should be taken into account when working out whether it is substantial. An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day to-day activity in isolation. However, it is important to consider whether its effects on more than one activity, taken together, could result in an overall substantial adverse effect.”(paragraph 22).[251]Appendix 1 to the EHRC Employment Code of Practice also provides guidance on the meaning of “substantial”, at paragraph 9 “Account should… be taken of where a person avoids doing things which, for example, causes pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation.”[252]The Guidance sets out a number of factors for the Tribunal to consider when deciding whether an impairment has a substantial effect. The Guidance includes by way of relevant factors: the time taken by the person to carry out an activity [paragraph B2]; the way a person carries out an activity [B3]; the cumulative effects of an impairment [B4]; the cumulative effects of a number of impairments [B5/6]; the effect of behaviour [B7]; the effect of environment [B11] and the effect of treatment [B12][253]In Aderemi v London and South Eastern Railway Ltd 2013 ICR 591, EAT, the EAT furnish guidance as to the Tribunal’s role in applying the words of the statue. The EAT state: “14. It is clear first from the definition in section 6(1)(b) of the Equality Act 2010 , that what a Tribunal has to consider is on adverse effect, and that it is an adverse effect not upon his carrying out normal day-to-day activities but upon his ability to do so. Because the effect is adverse, the focus of a Tribunal must necessarily be upon that which a Claimant maintains he cannot do as a result of his physical or mental impairment. Once he has established that there is an effect, that it is adverse, that it is an effect upon his ability, that is to carry out normal day-to-day activities, a Tribunal has then to assess whether that is or is not substantial. Here, however, it has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other.”[254]In assessing an impairment’s effect on a Claimant’s ability to carry out normal day-to-day activities, Mr Justice Elias (the President, as he then was) emphasised in the decision of Paterson v Commissioner of Police of the Metropolis 2007 ICR 1522, EAT, that a Tribunal should not compare what the Claimant can do with what the average person in the population can do, but what the Claimant can do and whether the Claimant could do the same without the impairment. That is to say, “In order to be substantial the effect must fall outwith the normal range of effects that one might expect from a cross section of the population’, but ‘when assessing the effect, the comparison is not with the population at large… what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired”. (paragraph 27)[255]“Day to day activities” encompass activities which pertain to participation in professional life as well as participation in personal life, and Tribunals are cautioned to focus on what the Claimant cannot do, not what they can do.[256]Notwithstanding, The Guidance sets out examples of what is meant by “normal day to day activities”. “D3 In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities”.[257]The Appendix to The Guidance, provides an illustrative non-exhaustive list of factors set out which, if experienced by a person, would be reasonable to regard as having a substantial adverse effect on normal day to day activities. In contrast, there is a separate list of what would not be reasonable to regard as having a substantial adverse effect on normal day to day activities.[258]To conclude, Schedule 1, part 1, paragraph 2 EQA 2010 defines “longterm” as: “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”.[259]Tribunals must analyse all three scenarios envisaged in paragraph 2 of schedule 1 (see McKechnie Plastic Components v Grant UKEAT/0284/08). ‘Likely’ has been held to mean it is a “real possibility” and ‘could well happen’ rather than something that is probable or more likely than not (SCA Packaging Ltd v Boyle [2009] ICR 1056). In that case, the Supreme Court upheld Girvan LJ in the Court of Appeal (at [19]): “The prediction of medical outcomes is something which is frequently difficult. There are many quiescent conditions which are subject to medical treatment or drug regimes and which can give rise to serious consequences if the treatment or the drugs are stopped. These serious consequences may not inevitably happen and in any given case it may be impossible to say whether it is more probable than not that this will occur. This being so, it seems highly likely that in the context of paragraph 6(1) in the disability legislation the word “likely” is used in the sense of “could well happen”.[260]The Guidance states that conditions with effects which recur only sporadically or for short periods can still qualify as long term impairments for the purposes of the Act. If the effects on normal day to day activities are substantial and are likely to recur beyond 12 months after the first occurrence, they are to be treated as long-term. The guidance sets out examples of impairments with effects which can recur beyond 12 months, or where the effects can be sporadic [C5 and C6][261]The Guidance says that it is not necessary for the effect to be the same throughout the period which is being considered in relation to determining whether the ‘long-term’ element of the definition is met [C7]. The Guidance sets out what should be considered in relation to the likelihood of recurrence. Essentially this means that all circumstances should be taken into account, including the way in which a person can control or cope with the effects of an impairment, which may not always be successful.[262]At [C9], The Guidance states: “Likelihood of recurrence should be considered taking all the circumstances of the case into account. This should include what the person could reasonably be expected to do to prevent the recurrence. For example, the person might reasonably be expected to take action which prevents the impairment from having such effects (for example, avoiding substances to which he or she is allergic). This may be unreasonably difficult with some substances”. Knowledge of disability[263]The authorities of Secretary of State for Work and Pensions v Alam 2010 ICR 665, EAT, and McCubbin v Perth and Kinross Council EATS 0025/13 establish the questions that the Employment Tribunal must ask to determine when or if the employer had knowledge of the disability. The first step is did the employer know both that the employee was disabled and that the disability was liable to disadvantage the employee substantially. The second and final step is if the employer did not know, ought the employer to have known both that the employee was disabled and that the disability was liable to disadvantage the employee substantially?[264]Cox v Essex County Fire and Rescue Service EAT 0162/13 is an example of a case that establishes that a failure by an employee or job applicant to cooperate with an employer’s reasonable attempts to find out whether he or she has a disability could lead to a finding that the employer did not know, and could not be expected to know, that the employee or job applicant was disabled.[265]Schedule 8 of Equality Act 2010 (paragraph 20(1) (b)), confirms that even where an employer knows that an employee has a disability, it will not be liable for a failure to make adjustments if it ‘does not know, and could not reasonably be expected to know’ that a PCP, physical feature of the workplace or failure to provide an auxiliary aid would be likely to place that employee at a substantial disadvantage. Failure to make reasonable adjustments[266]The duty to make reasonable adjustments is set out in sections 20 – 21 EQA, and in Schedule 8 (dealing with reasonable adjustments in the workplace).[267]The pertinent parts of Section 20 say: - “(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”[268]Section 21 EQA establishes that a failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.[269]In the case of Secretary of State for Work and Pensions (Job Centre Plus) v Higgins [2013]UKEAT/0579/12 the EAT held at paragraphs 29 and 31 of the HHJ David Richardson’s judgment that the Tribunal should identify(1) the employer’s PCP at issue,(2) the identity of the persons who are not disabled in comparison with whom comparison is made,(3) the nature and extent of the substantial disadvantage suffered by the employee, and(4) identify the step or steps which it is reasonable for the employer to have to take and assess the extent to what extent the adjustment would be effective to avoid the disadvantage.[270]The statutory duty is for the Respondent to take such steps as are reasonable, in all the circumstances of the case, for it to have to take in order to avoid the disadvantage. The test of “reasonableness” therefore imports an objective standard (see Smith v Churchills Stairlifts plc [2005] EWCA 1220.)[271]In Sheikholeslami v University of Edinburgh 2018 IRLR 1090, EAT, the EAT explained that the purpose of comparing the Claimant with someone who is not disabled is to test whether the PCP has the effect of producing the relevant disadvantage as between those who are and those who are not disabled, and whether what causes the disadvantage is the PCP relied upon.[272]Where an existing employee asks for an adjustment to be made because of a physical or mental impairment, the effects of which are not obvious, the employer is entitled to ask for evidence that the impairment gives rise to a disability within the meaning of the Equality Act 2010.[273]In Burke v The College of Law and anor 2012 EWCA Civ 37, CA, the Court of Appeal made it clear that a holistic approach should be adopted when considering the reasonableness of adjustments in circumstances where it takes a number of adjustments, working in combination, to ameliorate the substantial disadvantage suffered by the Claimant.[274]The EHRC Employment Code of Practice provides some helpful suggestions are to what factors to consider as to what is reasonable. For example, they refer to: the extent to which taking the step would prevent the effect in relation to which the duty was imposed (i.e. the effectiveness of the step) the extent to which it was practicable for the employer to take the step the financial and other costs that would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of its activities the extent of the employer’s financial and other resources the availability to the employer of financial or other assistance in respect of taking the step the nature of the employer’s activities and the size of its undertaking,[275]In essence, paragraph 6.23 of the EHRC Employment Code summarises what is reasonable as ‘What is a reasonable step for an employer to take will depend on all the circumstances of each individual case’.[276]In Royal Bank of Scotland v Ashton 2011 ICR 632, EAT, Mr Justice Langstaff made the point ‘the focus is upon the practical result of the measures which can be taken. It is not — and it is an error — for the focus to be upon the process of reasoning by which a possible adjustment was considered’[277]In South Staffordshire and Shropshire Healthcare NHS Foundation Trust v Billingsley EAT 0341/15 the EAT explained the extent of the test of effectiveness in relation to the reasonableness of the proposed adjustment. Mr Justice Mitting explained, “the current state of the law, which seems to me to accord with the statutory language, is that it is not necessary for an employee to show that the reasonable adjustment which she proposes would be effective to avoid the disadvantage to which she was subjected. It is sufficient to raise the issue for there to be a chance that it would avoid that disadvantage or unfavourable treatment. If she does so it does not necessarily follow that the adjustment which she proposes is to be treated as reasonable under [S.20] of the 2010 Act. It is in the end a question of judgement and evaluation for the tribunal, taking in to account a range of factors, including but not limited to the chance….”.[278]A crucial rationale of the section 20 duty is to make adjustments that are effective in keeping a disabled person in employment, not to enable them to leave employment on favourable terms.[279]The EAT emphasised in Brightman v TIAA Ltd EAT 0318/19 that the question of whether an adjustment is or would be effective was one that had to be answered on the basis of the evidence available at the time the decision to implement it (or not implement it) was taken.[280]However, Lord Justice Elias’s comments in the Court of Appeal decision of Griffiths v Secretary of State for Work and Pensions 2017 ICR 160, CA, provide some guidance on how to consider the evidence available or lack thereof at the time. Elias LJ states, “So far as efficacy is concerned, it may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness.”[281]Home Office v Collins 2005 EWCA Civ 598, CA is one of a number of authorities that establish that an employee an employer was under no duty to make adjustments (such as implementing a phased return to work or a change in duties) because there was no return to work date on the horizon.[282]An employee who has been absent from work for a substantial period will have to show that there is some prospect of a return to work once the required reasonable adjustments are implemented. If there is no such prospect, the duty to make reasonable adjustments is not triggered.[283]It follows also as established by Mr Justice Elias in Tarbuck v Sainsbury’s Supermarkets Ltd 2006 IRLR 664, EAT, that reasonable adjustments that do not have the effect of alleviating the disabled person’s disadvantage are not reasonable. The Burden of Proof in Discrimination cases[284]Proving and finding discrimination is always difficult because it involves making a finding about a person’s state of mind and why he has acted in a certain way towards another, in circumstances where he may not even be conscious of the underlying reason and will in any event be determined to explain his motives or reasons for what he has done in a way which does not involve discrimination.[285]The burden of proof is set out at Section 136 Equality Act 2010 (“EQA”). The relevant part of section 136 EQA says: -• “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…”[286]It is for the Claimant to prove the primary facts from which a reasonable Tribunal could properly conclude from all the evidence before it, in the absence of any other explanation, that there has been a contravention of the Equality Act. If a Claimant does not prove such facts he will fail – a mere feeling that there has been unlawful discrimination, harassment or victimisation is not enough.[287]Once the Claimant has shown these primary facts then the burden shifts to the Respondent and discrimination is presumed unless the Respondent can show otherwise. Could conclude means “a reasonable Tribunal could properly conclude from all the evidence.”[288]As set out above, at the first stage the Claimant must prove “a prima facie case.” Each case is fact specific, and it is necessary to have regard to the totality of the evidence when drawing inferences. Once the burden of proof has shifted, it is the second stage and is for the Respondent to show that the relevant protected characteristic played no part whatsoever in its motivation for doing the act complained of.[289]It is, however, not necessary in every case for the tribunal to specifically identify a two-stage process. There is nothing wrong in principle in the tribunal focusing on the issue of the reason why. As the Employment Appeal Tribunal pointed out in Laing v Manchester City Council [2006] IRLR 748 “If the tribunal acts on the principle that the burden of proof may have shifted and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever”.[290]This approach to the burden of proof has been confirmed by the Court of Appeal in Ayodele v City Link and another [2017] EWCA Civ 1913. Direct discrimination[291]Section 13 EQA sets out the statutory position in respect of claims for direct discrimination because of disability. “(1) person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim. (3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.”[292]The comments of the Court of Appeal in Madarassy v Nomura International plc [2007] EWCA 33, albeit a sex discrimination case under the pre Equality Act 2010, Sex Discrimination Act 1975, are still very much applicable to direct discrimination under the Equality Act 2010.. Mummery LJ giving judgment says at paragraph 56, “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”[293]It can be appropriate for a Tribunal to consider in a direct discrimination case, first, whether the Claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of race. However, in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the Claimant was treated as he was. (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] IRLR 285)[294]Failure to properly investigate a grievance will only give rise to a claim if the employer would have behaved differently in response to a similar complaint from an appropriate comparator — (see Eke v Commissioners of Customs and Excise 1981 IRLR 334, EAT. Unfavourable treatment because of something arising in consequence of disability[295]Section 15 EQA states: “(1) A person(a) (A) discriminates against a disabled person(b) (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 have reasonably been expected to know, that B had the disability.”[296]The correct approach when determining section 15 EQA claims is set out in the EAT decision of Pnaiser v NHS England and others UKEAT/0137/15/LA at paragraph 31.[297]The approach is summarised as follows:• The Tribunal must identify whether there was unfavourable treatment and by whom – no question of comparison arises;• The Tribunal must determine the cause of the treatment, which involves examination of conscious or unconscious thought processes. There may be more than one reason but the “something” must have a significant or more than trivial influence so as to amount to an effective reason for the unfavourable treatment;• Motive is irrelevant when considering the reason for treatment;• The Tribunal must determine whether the reason is “something arising in consequence of disability”; the causal link between the something that causes unfavourable treatment and disability may include more than one link – a question of fact to be assessed robustly;• The more links in the chain between disability and the reason for treatment, the harder it is likely to be able to establish the requisite connection as a matter of fact;• This stage of the causation test involves objective questions and does not depend on thought processes of the alleged discriminator;• Knowledge is required of the disability only, section 15 (2) EQA 2010 does not extend to requirement of knowledge that the “something” leading to unfavourable treatment is a consequence of disability;[298]In the EAT case of Basildon & Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305, Langstaff P, summarises the approach as, ''[t]he current statute requires two steps. There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The Tribunal has first to focus upon the words “because of something,” and therefore has to identify “something” – and second upon the fact that that “something” must be “something arising in consequence of B's disability”, which constitutes a second causative (consequential) link. These are two separate stages.'' Justification defence under section 15 EQA[299]In the case of discrimination arising out of disability, it is the treatment which needs to be justified.[300]Although it is worth noting that unlike section 19 EQA where knowledge of the disability is not a necessary component, knowledge of the disability is a requirement to justify a section 15 discrimination arising from disability claim. Harassment related to disability[301]Section 26, EQA sets out the legislative framework for harassment: “(1) A person(a) (A) harasses another(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of— (i) violating B's dignity, or (i) creating an intimidating, hostile, degrading, humiliating or offensive environment for B […..] (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are— ..disability;”[302]In Richmond Pharmacology v Dhaliwal [2009] ICR 724 the EAT stressed that the Tribunal should identify the three elements that must be satisfied to find an employer liable for harassment:(a) Did the employer engage in unwanted conduct,(b) Did the conduct in question have the purpose or effect of violating the employee’s dignity or creating an adverse environment for him/her,(c) Was that conduct on the grounds of the employee’s protected characteristic?[303]In a case of harassment, a decision of fact must be sensitive to all the circumstances. Context is all-important. The fact the conduct is not directed at the Claimant herself is a relevant consideration, although this does not necessarily prevent conduct amounting to harassment and will not do so in many cases.[304]Richmond Pharmacology v Dhaliwal confirmed that not every comment that is slanted towards a person’s protected characteristic constitutes violation of a person’s dignity etc. Tribunals must not encourage a culture of hypersensitivity by imposing liability on every unfortunate phrase.[305]Mrs Justice Slade’s comments on how a Tribunal should approach the words “related to the protected characteristic” are helpful in the EAT decision of Bakkali v Greater Manchester (South) t/a Stage Coach Manchester [2018] IRLR 906, [2018] ICR 1481 (EAT). She says, whilst it is difficult to think of circumstances in which unwanted conduct on grounds of or because of a relevant protected characteristic would not be related to that protected characteristic of a Claimant – “related to” such a characteristic includes a wider category of conduct and as such requires a broader enquiry when making a decision. (See paragraph 31 (Slade J presiding)[306]Tribunals must not devalue the significance of the meaning of the words used in the statute (i.e., intimidating, hostile, degrading, etc.). They are an important control to prevent trivial acts causing minor upset from being caught in the concept of harassment. Being upset is far from attracting the epithets required to constitute harassment. It is not enough for an individual to feel uncomfortable to be said to have had their dignity violated or the necessary environment to be created. (Grant v Land Registry [2011] IRLR 748).[307]Considering whether there has been harassment includes both a subjective and an objective element. Underhill J in Pemberton v Inwood [2018] EWCA Civ 564 summarised the position as follows: ''In order to decide whether any conduct falling within sub-paragraph (1)(a) of section 26 EQA has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section 4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (subsection 4(b))”. Victimisation[308]Section 27 EQA sets out the relevant statutory provisions in respect of claims for victimisation.(1) A person (A) victimises another person (B) if A subjects B to a detriment because—• B does a protected act, or• 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.”[309]Section 39(4) EQA provides that an employer (A) must not victimise an employee of A’s (B): by subjecting B to any other detriment — s.39(4)(d).[310]The issue of causation is fundamental to proving victimisation. In the seminal case of Nagarajan v London Regional Transport 1999 ICR 877, HL: The House of Lords ruled that victimisation will be made out, even if the discriminator did not consciously realise that he or she was prejudiced against the complainant because the latter had done a protected act.[311]Lord Nicholls put it like this in Nagarajan “Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on [protected] grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances”.[312]The Code explains that at paragraph 9.11- 9.12. “9.11 Victimisation does not require a comparator. The worker need only show that they have experienced a detriment because they have done a protected act or because the employer believes (rightly or wrongly) that they have done or intend to do a protected act. 9.12 There is no time limit within which victimisation must occur after a person has done a protected act. However, a complainant will need to show a link between the detriment and the protected act.”[313]A considerable length of time may elapse between the protected act being done and the detriment being suffered. (See Chambers v Abbey National plc ET Case No.2200567/98).[314]The Tribunal must determine whether the relevant decision was materially influenced by the doing of a protected act. This is not a ‘but for’ test; it is a subjective test. The focus is on the ‘reason why’ the alleged discriminator acted as s/he did (See West Yorkshire Police v Khan [2001] IRLR 830) Unfair dismissal[315]The test for unfair dismissal is set out in section 98 of the Employment Rights Act 1996. Under section 98(1), it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within subsection (2), e.g. capability or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.[316]The reason for dismissal is ‘a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee’. (Abernethy v Mott Hay and Anderson [1974] ICR 323, CA.)[317]Under s98(4) ‘… the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and shall be determined in accordance with equity and the substantial merits of the case.’[318]Finally, tribunals must decide whether it was reasonable for the respondent to dismiss the claimant for that reason.[319]The question is whether dismissal was within the band of reasonable responses open to a reasonable employer. It is not for a tribunal to substitute its own decision.[320]The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason. The objective standards of the reasonable employer must be applied to all aspects of the question of whether an employee was fairly and reasonably dismissed. (Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23, CA)[321]When applying the reasonable responses test, the tribunals must also take into account the ACAS Code on Disciplinary and Grievance Procedures. By virtue of section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992, the Code is admissible in evidence, and if any provision of the Code appears to the tribunal to be relevant to any question arising in the proceedings, it shall be taken into account in determining that question.[322]The test of how reasonableness is determined in ill health capability cases was established in Spencer v Paragon Wallpapers [1976] IRLR 373 and is summarised in HHJ Eady’s comments in the EAT decision of Monmouthshire County Council v Harris EAT 0332/14. There, Her Honour Judge Eady explained: “Given that this was an absence-related capability case, the employment tribunal’s reasoning needed to demonstrate that it had considered whether the respondent could have been expected to wait longer, as well as the question of the adequacy of any consultation with the claimant and the obtaining of proper medical advice”.[323]The Scottish Court of Session decision of S v Dundee City Council 2014 IRLR 131, Ct Sess (Inner House), provides some guidance as to what factors to take into consideration when determining the reasonableness of the decision to dismiss. The Court of Session points to balancing the relevant factors in all the circumstances of the individual case. Relevant factors may include whether other staff are available to carry out the absent employee’s work, the nature of the employee’s illness, the likely length of his or her absence, the cost of continuing to employ the employee, the size of the employing organisation; and (balanced against those considerations), the undesirable situation of having an employee on long term sick leave.[324]Whilst it is the case that an employer’s failure to adhere to its own procedures regarding attendance is a relevant factor as to the reasonableness of the employer’s decision to dismiss (see Sakharkar v Northern Foods Grocery Group Ltd (t/a Fox’s Biscuits) EAT 0442/10), inconsequential failures are not likely to be fatal. This is supported by Lord McDonald's comments in the EAT decision of Taylorplan Catering (Scotland) Ltd v McInally [1980] IRLR that “It would be absurd to apply a procedure of formal warnings to cases of genuine ill-health.”[325]In Royal Bank of Scotland v McAdie 2008 ICR 1087, the Court of Appeal found that if the employer was in any way responsible for the employee’s illness that led to the dismissal, or for exacerbating such an illness, this may be a factor that is taken into account by a tribunal when deciding on the fairness of the dismissal. In reaching this conclusion the Court of Appeal endorsed the decisions in Edwards v Governors of Hanson School 2001 IRLR 733, EAT, and Frewin v Consignia plc EAT 0981/02 and overruled London Fire and Civil Defence Authority v Betty 1994 IRLR 384, EAT, in so far as it held that the employer’s responsibility for the incapacity was irrelevant to the issue of whether the dismissal was fair. The Court accepted that it may be necessary to ‘go the extra mile’ in such circumstances; for example, being more proactive in finding alternative employment for the employee or putting up with a longer period of sickness absence.[326]The Court of Appeal in McAdie also highlighted that the fact that an employer is at fault for causing the incapacity does not necessarily mean that a resulting dismissal will be unfair. In McAdie itself, the Court of Appeal upheld the EAT’s decision (overruling the employment tribunal) that the employee whose stress-related illness had been caused by the employer had not been unfairly dismissed. The Court affirmed the EAT’s view that there was in truth no alternative to dismissal. The medical evidence was unequivocal, both that the employee was unfit for work and that there was no prospect of recovery. Moreover, the employee had expressly stated that she would never be able to return to work. This was not, therefore, a case where there was something more that the employer, having caused the illness, could and should have done to try to save the employee’s employment.[327]In Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust 2019 IRLR 1022, CA, the Court of Appeal confirmed the principle established in the McAdie case that an employer’s contribution to the employee’s lack of capability, although a relevant factor when considering reasonableness, was not determinative of whether the dismissal is unfair or not.[328]Failure by any person to follow a provision of the Code does not, however, in itself render him liable to any proceedings. However, the Code is also relevant to compensation. Under section 207A, if the claim concerns a matter to which the Code applies and there is unreasonable failure by either the employer or the employee to comply with the Code, there can be an increase or reduction in compensation (respectively) according to what is just and equitable of up to 25%.[329]Under s122(2) of the Employment Rights Act 1996, the tribunal shall reduce the basic award where it considers that any conduct of the claimant before dismissal was such that it would be just and equitable to do so. Under s123(6), where the tribunal finds the dismissal was to any extent caused or contributed to by any action of the claimant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable. 52 Where the dismissal is unfair on procedural grounds, the tribunal must also consider whether, by virtue of Polkey v AE Dayton Services [1987] IRLR 503, HL, there should be any reduction in compensation to reflect the chance that the claimant would still have been dismissed had fair procedures been followed. Analysis/ Conclusions[330]The parties provided written submissions and made oral submissions in accordance with those submissions, which the Employment Tribunal took into consideration in making our decision. Disability Issue 2.1.1- Did the Claimant have a physical impairment?[331]We have found that the Claimant was diagnosed with Hypermobile EhlerDanlos syndrome and has complained of joint pains since 2017. From 2019 the Claimant’s joint pains caused tiredness, and the Claimant had to walk with a stick. We conclude that this was a physical impairment. We also conclude that the Claimant’s back pain and psoriasis were also physical impairment within the meaning of Rugamer v Sony Music Entertainment. The Claimant did not provide any medical evidence of the diagnosis of Lichen Sclerosus, and the evidence provided suggests that there is no Lichen Sclerosus, as the GP does not record any evidence commensurate with the itching. The Claimant didn’t refer to Lichen Sclerosus in her written witness statement but raised it for the first time in her oral evidence. We did not accept that the Claimant had the symptoms she said were attributable to Lichen Sclerosus. The Claimant is understandably seeking a diagnosis for some of her symptoms from doctors. The Claimant was not seen since the lockdown in March 2020 and would have her camera off. So her managers did not see her and therefore had no physical indication of her wellbeing unless the Claimant specifically told them. In those circumstances, we conclude that the Claimant does not have a physical impairment of Lichen Sclerosus. We found that the Claimant does not have Hashimoto’s thyroiditis, but we found that the Claimant was diagnosed with thyroiditis. We conclude that thyroiditis is a physical impairment as the Claimant has had a diagnosis of the condition since September 2019. Issue 2.1.2 -Did the Claimant’s physical impairment have a substantial adverse effect on her ability to carry out day-to-day activities?[332]We conclude that the Claimant’s Hypermobile EDS did have a substantial adverse effect on the Claimant’s day to day activities, as the Claimant had to walk with a stick, she had joint pain that she complained of consistently and as a result of that pain experienced tiredness. The Claimant said that her back pain prevented her from driving in November 2020, which is a substantial adverse effect on her day to day activity. Although the Claimant says that it is all her conditions together that cause her a substantial adverse effect on her day to day activities, however, there is no evidence of a substantial adverse effect on day to day activities in respect of the condition of psoriasis. The psoriasis appears to be limited to her scalp. The Claimant did refer to her psoriasis affecting her day to day activities in a substantial adverse way in her evidence. But we conclude that the psoriasis did not have a substantial adverse effect on the Claimant’s day to day activities, as we did not accept her evidence of its effect. Although we had no evidence of the tiredness attributed to thyroiditis specifically, we conclude that taking all the Claimant’s symptoms and condition together, we cannot rule out that thyroiditis contributed to the Claimant’s tiredness because the Claimant was on medication. The tiredness had a substantial adverse effect on the Claimant’s day to day activities, as the Claimant’s evidence was that she was not able to do more site visits, and fatigue made reading difficult and was a strain on her eyes, which caused headaches. Issues 2.1.3 2.1.4- If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment so that without the treatment or other measures the impairment would have an adverse effect of the Claimant’s ability to carry out day to day activities?[333]In respect of the Claimant’s psoriasis, which we concluded did not have a substantial adverse effect on the Claimant’s ability to carry out day to day activities, the Claimant was prescribed Diprosalic scalp lotion and Capcasal scalp shampoo. The Claimant said she was using Capcasal and Dovobet to treat or correct the impairment. However, we do not consider that it was the use of the Capcasal and Dovobet or Diprosalic scalp lotion that the Claimant used that affected the substantial effect on the Claimant’s day to day activities. The Claimant’s own evidence was that it did not work and that she described intensified itchy, and she had asked for further medication from her GP. However, we did not accept the Claimant’s evidence about her symptoms as it was not supported by the Claimant’s GP records, and we considered the Claimant’s evidence to be unreliable. Mr Harding’s submissions set out that the Claimant’s psoriasis was misdiagnosed from 2010-2014, however, the Claimant did not refer to it in her written evidence nor her oral evidence, and we do not accept that submission. Issue 2.1.5- Were the effects of the impairment long-term?[334]We conclude that since the Claimant had been experiencing her joint pains attributable to Hypermobile EDS at least since her diagnosis in 2019, and that the Claimant was still experiencing this pain in July 2021, the impairment was long term. We also conclude that the Claimant’s thyroiditis was also long term for the same reason. However, we do not consider that the Claimant’s back pain was long term. The Claimant experienced back pain from September 2020 until January 2021. We found that it did not go on for 12 months, and we conclude that, as the Claimant did not mention it again in her medical notes, it was not likely to continue for 12 months or recur. In those circumstances, we find that the Claimant’s chronic back pain was not a disability, nor were the Claimant’s psoriasis and lichen sclerosis, but the Claimant’s hypermobile EDS and thyroiditis were disabilities within the meaning of the Equality Act 2010. Direct Disability Discrimination[335]In the Claimant’s written submissions, the Claimant withdrew the complaints of direct disability discrimination under issues 3.1.1 (failure to provide challenging work), 3.1.4 (contact with the Claimant’s GP), 3.1.5 (site visits, although to the extent this falls within 3.1.3, it was still being argued), 3.1.7, 3.1.8, 3.1.9 and 3.1.11.[336]The Claimant also recognised that issue 3.1.10 (lower pay than fellow apprentices) is effectively a reworking of 3.1.6 (September 2021 contract). Issue 3.1.2- Not being invited to or given the opportunity to attend a meeting on 20 April 2021, which offered opportunities to progress the Claimant’s learning and development, which her peers, Mr MarshallJoseph and Ms Marshall (being two other apprentices), were invited to attend[337]We found that Ms Marshall was not an apprentice and that the meeting was arranged for the learning and development of Ms Marshall and Mr Marshall Joseph. Whilst we found that the Claimant was not invited to that particular meeting because the other apprentices were being buddied up with PMs on a programme that involved a lot of walking, we conclude that this was not less favourable treatment for the Claimant. The Claimant accepted that it was her perception that it was discriminatory. The Claimant had her own meeting and was buddied up with another PM on another carriageway programme that would have given her similar opportunities of learning and development to the other apprentices. We conclude that the Claimant was not treated worse than Mr MarshallJoseph or Ms Marshall, as the Claimant could not attend Site at the time, as she had not yet had the further treatment, and that was the Occupational Health’s advice. That is why she was not invited to the meeting. In the circumstances, the complaint is not well founded and is Issue 3.1.3- Not being ‘buddied up’ in April 2021, whilst Mr MarshallJoseph and Ms Marshall, the other two apprentices, were offered this opportunity to develop their apprenticeship progression[338]We found that the Claimant was not buddied up in April 2021 because the Claimant could not go out to Site at the time because she needed further treatment for her disability, and the whole point of buddying up was for site visits. Although the Claimant’s evidence was that she could attend Site with reasonable adjustments. The OH advice from March 2021 was that the Claimant could not attend Site without further treatment, and the Claimant accepted in evidence that the Respondent could not ignore this evidence. We therefore conclude that the Claimant was not subjected to less favourable treatment in April 2021 by not being buddied up at that time. The Claimant was not treated worse than Ms Marshall or Mr Marshall-Joseph as comparators because of her disability, because it was the fact that she had not yet had further treatment that prevented her from attending Site, not because of her disability. The Claimant’s complaint is not well founded and is dismissed. Issue 3.1.5 Not being offered the opportunity to attend site visits when Mr Marshall-Joseph and Ms Marshall were offered such opportunities[339]We found that Ms Marshall was not in the same situation as the Claimant, as she was not an apprentice and so could arrange her own site visits. We therefore conclude there was a material difference between the Claimant and Ms Marshall, and she is not therefore an appropriate comparator. We accepted Victoria Saunders' evidence that both apprentices wanted her to arrange site visits rather than seek out opportunities. We found that the Claimant was offered the same opportunities as Mr Marshall-Joseph, as the Claimant did not give evidence that she was told that Fabian MarshallJoseph was getting more site visits than her and in March 2020, the student progress report suggested the same position for both apprentices. We therefore conclude that the Claimant was not subjected to less favourable treatment. The reason the Claimant didn’t go on some of the site visits Fabian Marshall-Joseph went on after March 2020 was either because she was unwell for non-disability related reasons or the OH advice prevented her from attending. We conclude that there were no facts from which we could infer that the reason why the Claimant did fewer site visits than Fabian Marshall-Joseph was because she was given fewer opportunities because of her disability. The Claimant’s complaint is not well founded and is dismissed. Issue 3.1.6 On 2nd September 2021, by offering the Claimant only a 6- month contract renewal when other apprentices were offered a two-year fixed term contract who were at the same stage as the Claimant[340]We found that the reason why the Claimant was offered a 6 month contract renewal rather than a two year fixed term contract, as Fabian Marshall-Joseph offered on 2 September 2021, was because the Claimant had not completed her BTEC level 3 by 2 September 2021. We accept that the offer of a 6 month contract compared to a 2 year fixed term contract in the context of an apprenticeship programme was less favourable treatment. However, the Respondent was still waiting for confirmation of the Claimant having completed the course, which the College did through confirmation of grades. Fabian Marshall-Joseph had completed his course and had his grade confirmed by 2 September 2021 and so could start the BTEC level 4. The point of the offer of a two year fixed term contract was to undertake the level 4 qualification. The Claimant could not do that on 2 September 2021 as she did not have confirmation of her grades to be able to start the next level of the BTEC. We found that the Claimant was not at the same stage as Fabian Marshall-Joseph by 2 September 2021 because Fabian Marshall-Joseph had his grades confirmed then, but the Claimant had not. In those circumstances, there was a material difference between the Claimant and Fabian MarshallJoseph, and so he was not an appropriate comparator. We accepted the Respondent’s reason for the 6 month extension as the confirmation of grades. Although there were emails from Victoria Saunders in April 2021 where she expressed her concern about the Claimant continuing in the apprenticeship, and there was discussions about what to offer the Claimant later between Chris Allen Smith, Katey Skeggs and Neil Richardson and others we did not consider those emails as anything other than trying to find a way to keep the Claimant and consider the options available in uncertain circumstances. The Respondent found recruiting engineers difficult and was therefore keen to keep the ones they had invested in. We therefore conclude that the Claimant did not establish facts from which we could infer that the reason for the 6 month extension was because of the Claimant’s disability, and so the Claimant did not shift the burden. The Claimant’s complaint is not well founded and is Issue 3.1.10 Paying the Claimant at a lower rate than her fellow apprentices[341]We already found that Ms Marshall was not an appropriate comparator as she was not on an apprenticeship contract like the Claimant. We heard no evidence in respect of Ms Marshall’s rate of pay and in any event, any difference between the Claimant’s and Ms Marshall’s rate of pay is therefore not relevant. We found that the Claimant was being paid at a lower rate than Fabian Marshall-Joseph, following 2 September 2021. We conclude that this was less favourable treatment. However, we also found that Fabian Marshall-Joseph was not at the same stage as the Claimant on 2 September 2021 as Fabian Marshall-Joseph had a level 3 qualification and the Claimant did not. Fabian Marshall-Joseph's contract required him to carry out the level 4 qualification. We found that it was this higher qualification which led to Fabian Marshall-Joseph being on a different grade and therefore doing different work to the Claimant, as the reason why Fabian Marshall-Joseph was being paid more than the Claimant. There was a material difference between Fabian MarshallJoseph and the Claimant, and so Fabian Marshall-Joseph was not an appropriate comparator for pay in this context. We therefore conclude that the Claimant was not being paid less than Fabian Marshall-Joseph because of her disability. The Claimant’s complaint is not well founded and is dismissed. Discrimination arising from disability Issue 4.1- Did the Respondent treat the Claimant unfavourably?[342]As regards issue 4.1.1 in offering the Claimant a 6-month extension in September 2021, rather than offering a permanent contract. We found that the Claimant accepted in evidence that she was not referring to a permanent contract but a 2 year contract and in those circumstances, we conclude that it was not unfavourable treatment not to offer the Claimant a permanent contract. Not least since Fabian Marshall-Joseph was not offered a permanent contract either, and even the Claimant’s amended claim form does not state that the Claimant was ever offered a permanent contract. The Claimant’s complaint is therefore not well founded and is[343]In respect of issue 4.1.2 in October 2021, offering less favourable contract terms to the Claimant, we did not find that there was an offer of less favourable contract terms in October 2021 because we did not accept the Claimant’s evidence that she received the contract terms on pages 954- 955 on 12 October 2021. We found that, on a balance of probabilities, Claimant received her contract in September 2021. In those circumstances, the Claimant was not subjected to unfavourable treatment and the Claimant’s complaint is not well founded and is dismissed.[344]In respect of issue 4.1.3, we have already found that the pay the Claimant received was less favourable treatment and so we do conclude that the Claimant’s pay in her 2 September 2021 contract was unfavourable treatment.[345]Concerning issue 4.1.4, failing to provide opportunities to attend site visits, we found that the Claimant was not provided with fewer opportunities. So, we conclude that the Claimant was not subjected to unfavourable treatment. The Claimant's complaint is not well founded and is dismissed. Issue 4.2.1 Did the Claimant’s Sickness absence arise in consequence of the Claimant’s disability:[346]Notwithstanding, the Claimant’s sick certificates since July 2021 in respect of her absences name as the reason for her absence as including joint pain and thyroiditis. We have determined that both conditions were disabilities, and so we conclude that the Claimant’s absences arose in consequence of the Claimant’s disabilities but only since July 2021. Issue 4.2.2 Did the Claimant’s Hospital appointments arise in consequence of the Claimant’s disability?[347]We found that only 2 of the Claimant’s appointments related to her thyroiditis that took place in December 2021. We conclude that those appointments arose in consequence of the Claimant’s disability, but none of the other hospital appointments that we had evidence of did arise in consequence of the Claimant’s disability. Issue 4.3 Was the unfavourable treatment because of any of those things?[348]Although we have concluded that the Claimant’s sickness absences since July 2021 and 2 hospital appointments were things in consequence of the Claimant’s disabilities, we conclude that the Claimant was not paid less pay than Fabian Marshall-Joseph because of her sickness absence and or December 2021 hospital appointments. We found that the reason for the Claimant’s pay as less than Fabian Marshall-Joseph's was because he was working towards a higher qualification than the Claimant in September 2021 and on a different grade, because he had completed level 3 and had a certificate to this effect, but the Claimant did not. Mr Boucher was the person who approved the apprentices' contracts, and he did not know about the Claimant’s sickness absence at that stage or her hospital appointment, although by August 2021 the Respondent did know of the Claimant’s disabilities. We therefore conclude that the Claimant’s sickness absence nor hospital appointment had any influence on Mr Boucher in making his decision to offer the Claimant a 6 month extension and Fabian Marshall-Joseph a 2 year fixed term contract and the reason for making the decision was because Fabian Marshall-Joseph had his level 3 qualification and the Claimant did not. Even if we were wrong and Mr Boucher did know about the Claimant’s sickness and or hospital appointments, we have found the reason for the Claimant’s contract being extended 6 months was because she had not had confirmed grades for the level 3 BTEC. Reasonable adjustments Issue 5.1 Knowledge of disability[349]We found that the Respondent was put on notice of the Claimant’s disability shortly before January 2021 (in the last 2 weeks of December 2020) when Victoria Saunders was told of the Claimant’s conditions of joint pain and thyroiditis. Issue 5.2.1 Did the Respondent have the following PCP of a requirement for the Claimant to attend site visits as part of the apprenticeship scheme[350]Victoria Saunders confirmed in evidence that there was a lot of on-site learning in respect of the apprenticeship. We accepted Victoria Saunders’ evidence that there was a requirement for the Claimant to attend site visits physically, as there are things that the Claimant would need to see that could not be seen on video. Fabian Marshall-Joseph was also required to attend site visits. We therefore conclude that there was a requirement for the Claimant to attend site visits as part of the apprenticeship scheme, and this amounts to a PCP. Issue 5.2.2 Did the Respondent have the following PCP of a requirement for the Claimant to complete her work portfolio[351]In the Claimant’s PMDS, an objective of the Claimant’s apprenticeship role was to maintain a portfolio in the year, which was only for the purpose of the NVQ. This criteria was also applied to Fabian Marshall Joseph who is not disabled. We conclude until August 2021 there was a requirement for the Claimant to complete her work portfolio. So this amounts to a PCP. Issue 5.2.3- A requirement that the Claimant satisfy all of the above to achieve a satisfactory NVQ/portfolio grade to be offered a 2-year fixed contract[352]The Respondent was told in May 2021 that completion of the NVQ was a requirement of moving on to the level 4 BTEC with Oakland College for the apprentices. It was not until August 2021 that another college was found for Fabian Marshall-Joseph, and there was no longer a requirement for the NVQ to be completed to move on to the level 4 qualification. As site visits were a requirement of on-site learning, and we concluded that both site visits and the work portfolio were a requirement until 25 August 2021 for the Claimant to be offered a 2 year fixed term contract. But when it came to offering the Claimant the contract in September 2021, the requirement did not apply. The requirement was not applied to a nondisabled person, such as Fabian Marshall-Joseph. Issue 5.3.1- Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that owing to the Claimant’s disabilities, she was unable to commute to the site visits and was not able to obtain the same level of on the job experience as other apprentices[353]We found that the Claimant could and was attending Site from the start of her employment until March 2020, as the Claimant could still drive and was driving. In those circumstances, we conclude that the Claimant was not placed at a substantial disadvantage in this period because she could commute to site visits. The Claimant was not placed at any disadvantage from March- October 2020, as none of the apprentices were attending Site as apprentices due to the COVID pandemic, and the Claimant’s disability was not relevant. From October 2020- February 2021, the Claimant could not drive due to her back pain and biopsy issues. The Claimant was off work because of these issues and not because of her disabilities. So we conclude that the Claimant was not disadvantaged due to her disabilities in being unable to commute during this period. However, from the end of February 2021- 18 May 2021, the Claimant was back at the workplace. There is no evidence that the Claimant could not drive for all of this period. It is only at the meeting on 11 May 2021 that the Claimant advises the Respondent that she can no longer drive. However, we conclude that once the occupational health report is published on 25 March 2021, the Claimant was prevented from attending Site between 25 March-19 May because of her EDS/ joint pain and therefore she could not commute to Site. Furthermore, from 19 May 2021, the Claimant can only attend Site with reasonable adjustments and goes off sick due to disability related sickness from 22 July 2021.[354]The Claimant was at a substantial disadvantage from 25 March 2021- 25 August 2021 in that she was not able to commute to site visits, and this was more than trivial. The requirement was applied to Fabian MarshallJoseph who is a non-disabled person. Ms Marshall was not on an apprenticeship contract, and so the requirement did not apply to her. We found Fabian Marshall-Joseph was able to drive from March 2021. Fabian Marshall-Joseph only had one site visit during this period on 5 May 2021, and so did the Claimant on 15 July 2021 before she went off sick. We consider, in the context of completing an apprenticeship over a 2 year period to gain on the job experience, where the Claimant and Fabian Marshall-Joseph were disadvantaged by the COVID pandemic lockdown in attending site visits. This was not a substantial disadvantage. Issue 5.3.2 Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that due to the Claimant’s disabilities, she was unable to attend College classes in person as part of the course which was a requirement under her Contract due to the Claimant’s absences throughout her course and her inability to attend site visits, the Claimant was unable to complete her portfolio.[355]We conclude that the Claimant’s absences before the end of her course, requiring submission of her NVQ portfolio before the end of July 2021 were not in any way related to her disabilities and therefore were not relevant to the alleged substantial disadvantages that the Claimant experienced before 23 July 2021. We conclude that the Claimant was not substantially disadvantaged by being unable to attend College classes in person because of the PCPs of not attending College classes in relation to the requirement to attend site visits, complete her work portfolio or attain a satisfactory grade in relation to the NVQ because firstly there was no contractual requirement to attend any College Classes in person, secondly there was no requirement to attend college classes in relation to the Claimant’s NVQ and or site visits and finally because there was lockdown and no one was attending College Classes in person from March 2020 and during the Covid lockdown period.[356]We found that the Claimant did not attend college classes in person in November 2020 initially due to the disgusting treatment she says she experienced from Steve Atherton, and then it was because of health issues, including her back pain. The Claimant did not mention her disabilities of EDS or joint pain, or thyroiditis in November 2020 as a reason for her absence from College. The Claimant said that she was trialling medication at the time and that it had exacerbated issues rather than solved them. But it was in November 2020 that the College told the Respondent that the Claimant was falling behind in respect of assignments. In any event, due to COVID, none of the students were attending college classes in person for most of 2020. We conclude that the Claimant was not absent from College due to disability related absences, and the Claimant’s attendance at class was not related to the completion of her work portfolio in any event. Therefore, the Claimant was not put at a substantial disadvantage because of the PCP resulting from her absence from College. However, there were criteria of the portfolio that required site visits, and so the Claimant’s inability to attend site visits during the period of 25 March- 22 July 2021 put the Claimant at a substantial disadvantage in her ability to complete her portfolio. Issue 5.4 Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?[357]We conclude that the Respondent did not know of the Claimant’s disadvantage resulting from her disability, that she could not commute to site visits until March 2021 when they received the OHU report. However, although the Respondent would have known of the Claimant’s joint pain and thyroiditis disabilities since December 2020, the Respondent would not have known that not attending College placed the Claimant at a disadvantage because of her disabilities because it didn’t as the Claimant’s absence from college was not because of her disabilities. The Claimant’s joint pain and thyroiditis contributed to her tiredness, but the Claimant has never mentioned these issues as the reason for or contributing to the reason why she could not attend college classes. The Claimant’s attendance or not at College did not affect her ability to complete her portfolio, so the Claimant’s disabilities were not relevant to that. Issue 5.5: What steps could have been taken to avoid the disadvantage? The Claimant suggests:[358]The Claimant names 14 steps that she says could have been taken to avoid the disadvantage. However, we have concluded that the only PCPs that put the Claimant at a substantial disadvantage were the requirement that the Claimant attend site visits and the requirement to complete the work portfolio until August 2021. The disadvantages that flowed from that were the Claimant’s inability to complete her work portfolio and her inability to commute and attend Site from 25 March- 22 July 2021. Part of the Claimant’s inability to complete the portfolio was attributed to the lack of the Claimant’s site visits. Issue 5.5.1 -provide the Claimant with a stress risk assessment[359]We conclude that a stress assessment identifies what factors in the workplace where likely to cause the Claimant’s stress, and it assists in deciding what adjustments should or could be made that are reasonable. It does not suggest what reasonable adjustments should be put in place or even identify them. It is not itself a reasonable adjustment in this context as it would not remove any substantial disadvantage in respect of the Claimant’s site visits or portfolio. We do not conclude that a stress assessment would remove or affect the Claimant’s stress so as to have an effect or avoid the substantial disadvantage. We conclude that the stress assessment was not a reasonable adjustment. Issue 5.5.2-Cally Brown or Victoria Saunders to meet with the Claimant to identify difficulties she was experiencing[360]We conclude that the substantial disadvantages would be affected by the Claimant meeting with Victoria Saunders or Cally Brown, as it would enable the difficulties in the Claimant attending Site and the completion of the work portfolio to be identified and solutions proposed. We conclude it was a reasonable adjustment. Issue 5.5.3 Completing the Reasonable adjustments record form to ensure continuity of adjustments for the Claimant[361]We conclude that a reasonable adjustments form set out what reasonable adjustments were in place for the Claimant. We do not see how the knowledge of what reasonable adjustments were in place would have affected the Claimant’s ability to commute or attend site visits or complete her portfolio. We didn’t accept the Claimant’s evidence that the form was a reasonable adjustment. If the Respondent had completed the form, it would have helped her to be able to go on a site visit and remove anxiety and stress to read what was in place for her. The Claimant had access to her occupational health report, which set out the reasonable adjustments. The Claimant did not assert that her stress and anxiety were a disability, and we have not found that it was a disability and so the completion of a reasonable adjustments form was not a reasonable adjustment. Issue 5.5.4 Allow the Claimant to attend site visits with a Project Manager or provide a mode of transport for the Claimant[362]We conclude that it was a reasonable adjustment for the Claimant to attend Site with a project manager, as it would have assisted the Claimant in completing her work portfolio. Furthermore, providing the Claimant with a mode of transport is also a reasonable adjustment because it would enable the Claimant to commute and attend site visits and complete her portfolio. Issue 5.5.5-Arrange for the Claimant to be taken to site visits via taxi[363]Arrangements for the Claimant to be taken to site visits via taxi are a reasonable adjustment because it would enable the Claimant to commute and attend site visits and therefore complete her portfolio. Issue 5.5.6 provide the Claimant with a greater variation of work in order to progress her qualification[364]We consider that this is not a reasonable adjustment in relation to the Claimant’s commute and or attendance of site visits it would not have removed or affected the substantial disadvantage in relation to the Claimant’s ability to attend or commute to a site visit. We also do not conclude that a variation of work would have affected or removed the substantial disadvantage caused by the PCP of completing the work portfolio because of the Claimant’s disability. Even though the Claimant said in an email dated 11 June 2021 that the repetitive nature of tasks exacerbate her joints, when the Claimant was asked the question directly was to why she wanted variation and what kind of variation, the Claimant’s evidence was her requirement of variation of work related to the types of work that allowed her to evidence her work in the work portfolio to complete her NVQ not in any way related to her disability. Issues 5.5.7 Providing the Claimant with flexible and regular breaks during the working day to avoid flare-ups & 5.5.8 Flexible start and finish times for the Claimant;[365]The Claimant accepts that the Respondent provided the Claimant with regular breaks and flexible start/finish times. Issues 5.5.9 Provide agendas for meetings in order for the Claimant to prepare for the meetings in advance owing to her brain fog, & 5.5.10 Recordings of meetings[366]The Claimant withdrew issues 5.5.9 & 5.5.10 as set out in Mr Harding’s written submissions. Issues: 5.5.11 (Detailed workstation adjustments), 5.5.12 (Multi-adjustable ergonomic chair), 5.5.13 (Larger Laptop)[367]We conclude that all these issues are reasonable adjustments as they had the potential to remove the substantial disadvantage in relation to the Claimant’s ability to complete her work portfolio because the Claimant’s joint pain and EDS made it difficult for her to do desktop work, which the work portfolio would require. Issue 5.5.14 (Voice Recognition software).[368]The Claimant stated in her disability impact assessment that she did not think that the voice recognition software would have benefited her greatly, as she is not able to talk for long periods of time. In those circumstances, we conclude that it would not have affected or avoided the disadvantage in the Claimant completing her work portfolio and is not a reasonable adjustment. The Claimant’s complaint is not well founded and is Issues 5.6 & 5.7: was it reasonable for the Respondent to have to take those steps and did the Respondent fail to take those steps[369]In relation to issue 5.5.2, we found that Victoria Saunders did have meetings with the Claimant where her difficulties were discussed regarding site visits and her work portfolio. These meetings covered the period when the Claimant was in the work place after 25 March 2021 when the Respondent became aware of the Claimant’s difficulties with attending site as the Respondent only became aware of there being an issue with the Claimant completing the NVQ in May 2021 as before then there had been no timescale for completing the NVQ and the requirement was not applied after 25 August 2021.[370]In respect of issue 5.5.4, the Claimant agreed in evidence that it was the same as issue 5.5.5. We consider that it was reasonable for the Respondent to take the step of allowing the Claimant to attend Site with a project manager. We found that the Respondent did do this by buddying up the Claimant with a project manager in June 2021 after the Claimant was permitted to attend site visits, and we consider that this was reasonable to do in June 2021.[371]In respect of issue 5.5.4 concerning an alternative mode of transport, the Claimant agreed in evidence that it was the same as issue 5.5.5 of arranging taxis. It was not reasonable for the Claimant to be allowed to go to Site with project managers before 19 May 2021 as the occupational health advice was that the Claimant not attend Site. The Claimant had expressed that at the 11 May meeting that she could attend via video or sit in a car, but there was still a restriction of car sharing in May 2021 which was not lifted even by 18 June 2021 and it was not reasonable for the Respondent to arrange a mode of transport or taxis where the occupational health report advised the Claimant to self-refer to Access to Work to make arrangement for travel and the Claimant agreed that she would do that 11 May 2021 meeting. It was therefore not reasonable for the Respondent to make arrangements for taxis at that point. However, after 18 June 2021, the Respondent did make arrangements to pay for the Claimant’s taxis from 25 June 2021. We conclude that the Respondent complied with their duty to make reasonable adjustments. The Claimant’s complaint is not well founded and is dismissed.[372]In respect of issues 5.5.6, it was reasonable for the Respondent to take steps to provide a variation of work. We found that Victoria Saunders agreed to provide variation of work on 11 May, and the grievance report found that Adrian Redup and Stephanie Dobb also provided variation. The Respondent did make reasonable adjustments in respect of these issues. The Claimant the complaint is not well founded and is dismissed.[373]In respect of issues 5.5.11 & 5.5.12, it was not reasonable for the Respondent to provide the detailed workstation adjustment and chair before the Claimant went off sick because when the Claimant was asked in 2020 about a DSE assessment, she said she was fine. It was the occupational health report dated 25 March 2021 that first mentioned the DSE assessment. However, we accepted Victoria Saunders’ evidence that there was a delay at the time because of COVID-19 in doing assessments. It was reasonable until the Claimant stated in the 18 June 2021 meeting that she wanted a DSE for Victoria Saunders to request one. Part of the delay was attributable to the Claimant, who took a few days to return the form. The Claimant then went off sick on 22 July, and it was not reasonable to carry out the assessment as it needed to be done in the workplace and at home, and COVID meant that there was a delay in providing the assessment. It was not reasonable for the Respondent to have obtained the chair before the Claimant went off sick it could only be used when assessed, and there was a delay in assessments. Furthermore, there was no longer a requirement to complete the work portfolio after 25 August 2021 in any event, and the detailed workstation assessment and the chair did not apply to a substantial disadvantage in respect of the site visits. Issue 5.5.13 larger laptop[374]In respect of issue 5.5.13, the recommendation arose in the May 2021 occupational health report. In any event, the larger laptop only applies to the substantial disadvantage arising from not completing the work portfolio and does not apply to the site visits. The Respondent ordered the larger laptop on 30 June 2021 so that it was ready for collection on 15 July 2021 before the Claimant went off sick. However, the Claimant did not collect it. we consider that it was reasonable for the Respondent to wait to speak to the Claimant about the Occupational Health recommendations in the 19 May 2021 report before ordering expensive equipment. We find that the Respondent did comply with the duty to make reasonable adjustments, and so the Claimant’s complaint is not well founded and is dismissed. Issue 17.1.1 Is there a PCP of a requirement for the staff to work full-time hours.[375]We found that there was a requirement for anyone in the council to work full-time contractual hours, as there was a flexi policy and there was no requirement for the Claimant to work full-time hours. In those circumstances, there was no PCP applied to the Claimant, and the Claimant’s complaint is not well founded and is dismissed. Issue 17.1.3 Is there a PCP in relation to the dismissal (the PCP would be the sickness policy, which requires employees to attain an attendance target of a certain level and has triggers for absences).[376]The Respondent’s policy had triggers of three or more instances of absence in any rolling six-month period or when an individual accumulates ten or more calendar days of absence within any rolling six-month period. this was contained in the Respondent’s managing ill health policy and therefore applied to all Council staff. We therefore conclude that the application of triggers in respect of this policy was a PCP and would apply to dismissal because the absence triggers invoked the health review meeting, which could eventually lead to dismissal. Issue 17.1. 2: the disadvantage relied upon is that the Claimant required a phased return to work[377]We do not accept that it was a substantial disadvantage that the Claimant was required to have a phased return to work. The Claimant accepted in evidence that it was not a disadvantage, and we cannot see how it could be a disadvantage for an employee, as it is often the case that a phased return to work is that they are paid for hours they do not work. Issue 17.4: The substantial disadvantage in respect of the dismissal is that the Respondent’s failure to implement the reasonable adjustments meant the Claimant would not be able to return to work.[378]Firstly, Mr Harding has not dealt with this issue at all in his written submissions, which is not helpful as it is very unclear what the Claimant’s case is regarding this matter. Secondly in so far as the Claimant is asserting that the application of the PCP of triggers required employees to attend attendance at a certain level, we cannot see how the alleged substantial disadvantage follows from this PCP. The application of the triggers in the policy has nothing to do with the failure to implement reasonable adjustments or whether the Claimant would be able to return to work or not. The Claimant’s complaint is not well founded and is Harassment[379]We found that in the meeting on 18 June 2021 the Claimant made it very clear that she was unhappy with the comments that were made in that meeting. There are no equivalent complaints in respect of the 11 May or 8 September 2021 meetings. We have found that if the Claimant was really unhappy about the comments made by either Katey Skeggs, Victoria Saunders or Neil Richardson, she would have said so in the meetings. We found that issue6.1.1.1 was not a comment made by Victoria Saunders in any meeting. We found issues6.1.1.2 and 6.1.1.3, were made by Victoria Saunders and Katey Skeggs. Whilst the Claimant’s evidence was that she “felt hurt, humiliated, embarrassed, disappointed and let down because once again I had reached a dead-end when I had tried to reach out for help.” The Claimant does not say so at the time. More than that, at the end of 11 May 2021 meeting, the Claimant says that she “I'm really grateful for the support that I do receive from you and It does really help with an already difficult situation, and I feel a lot better being able to communicate everything in one go”. Although the Claimant did complain about the 11 May 2021 meeting in her first grievance, she didn’t say that the comments that made her feel her job was threatened and amounted to harassment or what either Katey Skeggs or Victoria Saunders said that made her feel threatened. We conclude that the comments of Katey Skeggs and Victoria Saunders in the 11 May 2021 meeting are not unwanted conduct. We also conclude that the comments were not related to the Claimant’s disability, not least because at that time the Claimant’s time off work was not for disability related reasons in any event. We conclude that the comments certainly were not[380]We conclude that the comments of Neil Richardson were made as he accepted in evidence that he made these comments. However, we conclude that Neil Richardson's comments at issues 6.1.1.4 & 6.1.1.5 are not unwanted conduct. The Claimant did not raise a grievance about these comments. She did not say anything in the meeting at the time that there was a problem with the comments, and we know that she had no problem raising issues about what was said in the meeting, as she made allegations that comments made in the 25 May 2021 meeting were discriminatory. If we are wrong and the comments in Issues 6.1.1.1- 6.1.1.1.5 were unwanted conduct, in any event, we found that we did not accept the Claimant’s evidence about the effect of the comments on her, and we found there was nothing untoward about Katey Skeggs' comments, Victoria Saunders’ comments were positive and that Neil Richardson's comments were sympathetic and supportive. We conclude that neither the purpose nor effect of the comments was a violation of the Claimant’s dignity nor did they create an intimidating, hostile, degrading, humiliating or offensive environment. In the circumstances, we conclude that the Claimant’s complaint is not well founded and is dismissed Victimisation[381]We conclude that the Claimant did carry out a protected act by submitting a Grievance on 28 June 2021. The grievance contained a reference to a breach of the Equality Act 2010 and so falls within section 27(2)(d) Equality Act 2010. We also conclude that the Claimant’s submission of her Employment Tribunal claim form on 11 January 2022 also falls within section 27(2) (a) Equality Act 2010.[382]We have found that the reason why the Claimant was offered on 2 September 2021 a 6-month contract renewal rather than a two- year fixed term contract, which was offered to Fabian Marshall-Joseph, was that the Claimant was not at the same stage as Fabian Marshall-Joseph; she did not have confirmed results as Fabian Marshall-Joseph had. We found that there was no evidence to suggest that Mr Boucher knew about the existence or content of the grievance. We therefore conclude that Mr Boucher was not materially influenced by the Claimant having brought a grievance in deciding whether to extend the Claimant’s contract by only six months. In the circumstances, we conclude that the Claimant’s complaint is not well founded and is dismissed.[383]We have found that the Respondent did not fail to advance the grievance in a timely manner. We found that Valerie Weaver dealt with the grievance in a reasonable time, having regard to the size and complexity of the grievance and the fact that Valerie Weaver was investigating alongside her main role, as well as time off in that period, and Ms Jacques did not delay intentionally. In those circumstances, we conclude that there was no victimisation and the complaint is not well founded and is dismissed.[384]We found that the period within which the grievance was submitted was a reasonable period, having regard to the circumstances, so we do not consider that there was a failure by the Respondent in respect of the time it took to produce a grievance report. Although the Claimant did raise concerns about the delay of the grievance process on 2 occasions, we found that Valerie Weaver dealt with the concerns promptly and adequately. As there was no failure, there cannot be a detriment resulting from the Respondent’s action. So we conclude that the Claimant was not victimised and the complaint is not well founded and is dismissed.[385]We found that the absence management process started in May 2021, before the occupational health report dated 18 August 2021. We found the reasons why some of the reasonable adjustments were not put in place were for reasons that were not because of the Claimant having brought a grievance or issued proceedings. We found that it was Victoria Saunders who was the person who was responsible for making the decisions about implementing the reasonable adjustments contained in the May 2021 occupational health report. We conclude that Victoria Saunders was not materially influenced by the protected acts that the Claimant relies upon because the Claimant raised a grievance about Victoria Saunders not implementing the reasonable adjustments, and thereafter Victoria Saunders was no longer the Claimant’s manager and so no longer responsible for carrying out the reasonable adjustments in any event.[386]Victoria Saunders would not have been responsible for implementing the phased return to work because which as mentioned in the 18 August 2021 occupational health report as by that time Victoria Saunders was no longer the Claimant’s manager and Neil Richardson had taken over. However, we found that it was never reasonable for the Respondent to implement a phased return to work, as the Claimant never returned to work. In those circumstances, the Claimant’s complaints are not well founded and are[387]We found the decision to dismiss the Claimant was not taken 1 working day before the exchange of witness statements. The Claimant was dismissed on 25 August, although the dismissal took effect on 25 September 2021. The order to exchange witness statements was issued at the 7 November 2022 case management preliminary hearing, and the date for the exchange of witness statements was 7 July 2023 [119]. The second case management preliminary hearing was on 28 May 2024, where the order was made that witness statements are exchanged on 27 September 2024 [226]. Neither of these dates is anywhere near the date of the Claimant’s dismissal. In any event, the decision to dismiss was taken by Ms Alder, and the decision to uphold the dismissal on appeal was taken by Mr Woodman. The Claimant did not present any evidence that either was materially influenced by the Claimant having submitted a grievance in July 2021 or having presented an Employment Tribunal claim form on 11 January 2022. Whilst it is the case that both Ms Adler and Mr Woodman knew about the Claimant’s grievance, there was a long period of time between the Claimant’s grievance and the decision to dismiss and the Claimant’s grievance was not upheld in any substantive way. Unfair dismissal Issue 12.2- Did the Respondent have a fair reason to dismiss the Claimant? The Respondent’s position is that the reason for the Claimant’s dismissal was as a result of Capability.[388]We conclude that the reason for the Claimant’s dismissal was by reason of capability. We accepted Ms Adler’s evidence that the reason for dismissal was the time the Claimant had off work due to sickness, as well as the occupational health report stating that there was no indication of a future return to work. Issue 12.3 - Was the Claimant’s dismissal fair in all the circumstances?[389]We conclude that dismissal was within the range of reasonable responses of an employer because the Respondent consulted with the Claimant a number of times during HRM’s before the Capability Hearing, and in particular at the HRM on 10 March 2023, when the Claimant was asked about returning to work, the Claimant said it seemed impossible. At the Capability Hearing, the Claimant was given a chance to put her case; the hearing was 4 hours. She was given an opportunity to ask Neil Richardson questions and Victoria Saunders but did not wish to call Victoria Saunders to ask questions. We accepted Ms Alder’s evidence that she took into consideration in coming to her decision what the Claimant said on the day. Issue 12.4.2- Did the Respondent consult the Claimant and take her views into account?[390]The Claimant was consulted on her views in the Capability Hearing on the impact of her conditions on returning to work. The Claimant told the Respondent that the treatment was not working and she could not return to work. The Claimant was also consulted on the occupational health report, timescales regarding possible return, redeployment, reasonable adjustments, historically and in the present and ill health retirement. Although not raised in the capability process, in the Claimant’s written evidence, list of issues or the Claimant’s claim form, the Claimant argued at this Employment Tribunal that the Respondent should have applied the process of a first written warning and a final written warning before the Claimant was dismissed. However, we accepted Ms Adler’s evidence that the warning process at an HRM depended on each case, and we found that the written warning did not need to be issued at the HRM in any event in accordance with the policy. The Claimant was also warned in the first HRM letter that she could be issued a written warning. Issues 12.4.3 & 13.3.2[391]The Respondent obtained an up to date occupational health report in May 2023 before dismissal in August 2023, and we consider this was sufficiently up to date. Ms Adler confirmed in evidence that she considered the occupational health report in coming to her decision. The Claimant admitted that she had gotten worse since the Occupational Health report and treatment had not worked, and so the Respondent did consider the Claimant’s medical condition and likely prognosis in coming to their decision to dismiss. The OH advice was clear and unequivocal. Issue 12.4.1: Should the Respondent have waited longer before dismissing the Claimant?[392]We accepted that Ms Adler did consider whether the Respondent should wait longer before dismissing. The Respondent concluded that it was not reasonable to wait longer before dismissing, as there were no upcoming events that would change the Claimant’s own outlook, and the occupational health report said there was no current timescale when she would be fit to return. Mr Harding cross examined Ms Adler about there could be upcoming medical appointments, but the Claimant did not give evidence on this, nor did she raise this in the Capability Hearing at the time. We conclude that it was within the range of reasonable responses to dismiss where the Claimant had been out of work for 2 years and there wasn’t even a hypothetical timescale of return. Issue 13.1 Did the Respondent’s alleged failure to implement reasonable adjustments during the Claimant’s sickness absence procedure and Capability procedure mean she was unable to return to adding to her stress and incapacity.[393]The Claimant’s position at the Capability Hearing was that reasonable adjustments needed to have been put in place, but because they were not, it led to her conditions getting worse and led to her going off work. However, factually, this position was not supported by the evidence. None of the Claimant’s sick notes referred to any reasonable adjustments throughout her employment. The Claimant accepted in evidence that she never discussed reasonable adjustments with her GP at all. Furthermore, none of the occupational health reports suggested that reasonable adjustments would aid the Claimant’s return to work. We concluded that the Occupational Health report dated 18 August 2021, which was not long after the Claimant went off work (just under a month), referred to the application of reasonable adjustments once the Claimant returned to work, not to enable the Claimant to return to work. All of which leads us to conclude that the reasonable adjustments would not have led to the Claimant being able to return to work. There was nothing for Ms Adler to look at other than the grievance, and Ms Adler’s position was that the grievance had dealt with the reasonable adjustments, and we conclude that was in the range of reasonable responses.[394]Although the Claimant’s oral evidence was the failure of the Respondent to implement the reasonable adjustments of voice recognition software, DSE assessment and the adjustment in hours, stress risk assessment, the ergonomic chair, large laptop and the plan in terms of flexible hours was what led to her not returning. The Claimant did not say that if they had been implemented by September 2021, she would have returned to work, but only possibly. We found the Claimant never asked for a plan for flexible hours whilst employed by the Respondent because she always had flexible hours. We found that the Claimant did not want voice recognition software as she didn’t think it would be helpful. The Claimant identified in the Capability Hearing that the main barriers to return to work were mobility issues and lots of appointments, and no effective treatment plan, and nothing to address her acute pain. The Claimant did not say at the time of the hearing that the barriers to return to work were the failure to implement reasonable adjustments. The most up to date report stated there were no reasonable adjustments that could be made to return the Claimant to work. Although the stress risk assessment, detailed workplace assessment and provision of the ergonomic chair and larger laptop had not been provided before the Claimant went off sick. Ms Alder considered that the Respondent had supported the Claimant and implemented reasonable adjustments that had been identified by the grievance outcome. We conclude that this was within the range of reasonable responses as Ms Alder needed to consider whether the Claimant could return to work at the time she was making the decision. We do not consider that it was unreasonable for Ms Alder to come to this view. Issue 13.3 Did the Respondent fail to consider all factors in issues 13.3.1- 13.3.6 when dismissing the Claimant[395]Ms Adler did consider the impact of the Respondent’s actions on the Claimant’s health as she considered the reasonable adjustments that were made and the support that was provided by the Respondent in the 2 years of her absence from work. Ms Alder did not accept that there had been discrimination, which is what the Claimant seemed to be referring to in the Capability Hearing when referring to the “Respondent’s actions”. Ms Alder could only consider what the Claimant raised at the hearing and the available documentation. Furthermore, Mr Woodman’s handling of the dismissal appeal was not challenged in evidence by the Claimant, and he also considered that Ms Adler had been right to accept the grievance as having dealt with the issue of reasonable adjustments before the Claimant went off sick. Ms Alder considered that there was little operational impact of the Claimant’s absence, not that there was none, as well as ill health retirement, where the Claimant’s views were sought before a decision was made, and in any event, both were clearly considered as it was recorded in Ms Alder’s management checklist notes. We conclude that the Respondent did consider all the factors referred to in issue 13.3, and so it was within the range of reasonable responses for the Respondent to dismiss the Claimant, considering these factors.[396]We do not accept the Claimant’s argument that the Respondent’s actions caused her to suffer significant stress that led to the deterioration of her illness. The Claimant suggested in the Capability Hearing that not offering her a 2 year contract contributed to her stress. However, we consider that the Respondent’s actions were reasonable in circumstances where the Claimant’s results of her level 3 BTEC were not known at the time, and the point of the 2 year fixed term contract was to complete the level 4, which she could not do without the level 3.[397]Furthermore, when the Claimant went off sick, the Claimant did not mention anything to her GP about the source of stress as being the Respondent’s action or their alleged failure to make reasonable adjustments. Whilst the Claimant mentioned workplace stress to her GP on 10 August 2021 after she went off work, we found that the Respondent's actions did not cause the Claimant’s incapacity. Whilst it is understood that the grievance process was stressful, we found the time it took was reasonable in the circumstances, and the actual source of stress was the HRM process managing the Claimant’s sickness absence. The Claimant interpreted this as the Respondent trying to get rid of her, but we found it was reasonable for the Respondent to initiate the process in the circumstances. At the time the process was initiated, the Claimant’s sickness did not in any event relate to her disabilities, and the Claimant had not complained in this case that the HRM should not have been triggered because of her disabilities. We conclude that the Respondent was not required to go the extra mile when considering whether to dismiss the Claimant. We conclude that waiting 2 years before dismissing the Claimant was going the extra mile in any event.[398]The Claimant argued that the Respondent wanted to get rid of her because of her disability. This was not something that the Claimant said during the dismissal process. However, in any event, Ms Adler considered that the Respondent had provided support. The Claimant referred in evidence to not being re-enrolled in the course after the first contract extension. However, again, this was not part of the Claimant’s case before the Respondent at the Capability Hearing. In the circumstances, we conclude that the Claimant’s complaint is not well founded and is dismissed Time issues[399]Even if we had found that the Claimant’s complaints of direct discrimination, reasonable adjustments, discrimination arising from disability or victimisation were well founded, we would have concluded that the Claimant’s complaints that took place before 24 September 2021 were out of time and that it would not be just and equitable to extend time. The Claimant had access to legal advice as early as May 2021. The Claimant was well aware of her rights regarding the Equality Act 2010 and set out her complaints of disability discrimination in her grievance, which referred to reasonable adjustments and the Equality Act 2010. We do not accept that it was reasonable for the Claimant to have waited for the outcome of her grievance in circumstances where she knew she had a right to bring a claim and did not mention the outcome of the grievance in her claim, even though she had the outcome on 1 November 2022, some 3 months before she presented her claim form.[400]The Claimant also argued that all the acts of discrimination were continuing acts; however, we would not have found this to be the case where the acts were carried out by different people and Victoria Saunders, in particular, did not carry out any alleged acts after 25 June 2021, and the nature of the acts were different. Approved by: