Miss H M Benounane v LRG Employees Ltd: 3300560/2024 and 3303118/2024

EMPLOYMENT TRIBUNALS

Case No 3300560/2024, 3303118/2024

Between

Miss H M BenounaneClaimant

LRG Employees LtdRespondent

Before

Employment Judge McCooey

In person for claimant

Ms N Gyane (instructed by Counsel) for respondent

Date 30 September 2025

JUDGMENT

The unanimous judgment of the Tribunal is as follows:

[1]The complaint of direct race discrimination is not well-founded and is dismissed.

[2]The complaint of direct disability discrimination is not well-founded and is dismissed.

[3]The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed.

[4]The complaint of failure to make reasonable adjustments for disability is not well-founded and is dismissed.

[5]The complaint of victimisation is not well-founded and is dismissed.

[6]The complaint of automatic unfair dismissal is dismissed upon withdrawal by the claimant. Case number: 3300560/2024 & 3303118/2024

[7]This was the hearing of a claim of disability discrimination, race discrimination and victimisation. The complaints were presented in two claim forms on 15 January 2024 and 18 March 2024. Early conciliation took place between 14 December 2023 and 15 January 2024. The Respondent filed a response defending the complaints on 8 March 2024 and further amened responses on 20 January 2025 and 18 February 2025. Procedural matters

[8]Two case management hearings had taken place. The first was on the 30 September 2024, at which the claims were discussed and a draft list of issues prepared. The claimant sought further information from the respondent on 19 December 2024 and 21 January 2025.

[9]A second case management hearing took place on 28 January 2025, at which the claims were discussed and the list of issues clarified further.

[10]Following that second hearing, the claimant wrote to the Tribunal with some amendments to the list of issues on 3 February 2025. The respondent opposed those as unnecessarily widening the claim and sought a preliminary hearing to resolve the dispute. The Tribunal did not respond and neither party chased the matter with the Tribunal. The next communication was from the Tribunal requesting each parties’ trial readiness on 18 August 2025. Amendment

[11]The claimant’s amendment application therefore became the first matter to resolve as a preliminary issue on Day 1.

[12]We granted the application to allow additional instances of less favourable treatment in respect of the claimant’s direct race discrimination claim; other amendments were agreed by the respondent. The claimant withdrew her application to add an indirect discrimination claim.

[13]We refused the claimant’s application to add a harassment complaint and a further instance of victimisation; reasons were given for that orally before evidence began. No written reasons for that have formally been requested by the claimant (or respondent).

[14]The list of issues was amended to reflect the outcome as shown in the annexed version attached to this Judgment. Reasonable Adjustments Case number: 3300560/2024 & 3303118/2024

[15]The claimant represented herself. We facilitated additional breaks and time to process information, as requested by her.

[16]As the hearing progressed, we also asked that the respondent’s witnesses sit apart from each other and at the back of the gallery following concerns the claimant raised that they were making inappropriate noises or comments. The Tribunal and respondent’s counsel did not hear this, but we acknowledge we were sitting further away from the witnesses. This adjustment resolved that concern. Evidence

[17]The evidence in the case consisted of a 1435 core bundle; a 60-page witness bundle; an agreed chronology (save where italicised) and cast list; and additional disclosure documents from both parties; these included extracts of the Employees’ Handbook and relevant policies; a WhatsApp message between Ms Busby and the claimant and a further email from Ms Busby to HR on 16 November 2023. Parties consented to the admission of each other’s late documents, and we agreed their admission would not prejudice either party.

[18]The Tribunal received witness statements from the claimant, and on behalf of the respondent from:  Aston Busby, Head of Centre and the claimant’s line manager;  Karen Shepherd, Regional Director and Ms Busby’s line manager;  Adam Bevan, Area Property Manager.

[19]It was agreed that we would not hear evidence about remedy at this stage due to time constraints.

[20]The claimant gave oral evidence, as did each of the respondent’s witnesses.

[21]At the conclusion of evidence, both parties were given the opportunity to provide written submissions and give oral submissions on the morning of Day 4. The respondent provided written submissions, including a summary of the relevant law. The claimant made oral submissions. We are grateful to each side for their submissions. General approach

[22]In this case, as in others, evidence touched on points about which we make no decision. That is not an oversight or an omission on our part; it reflects the reality that not everything that was brought up in this case was relevant to our decision-making. Factual background

[23]Our factual findings are as follows: Case number: 3300560/2024 & 3303118/2024

[24]The respondent is a property services group. The claimant was employed as a Property Manager based at the respondent’s Head Office in Wokingham between 29 August 2023 until her dismissal on 13 December 2023.

[25]She was invited to apply for the role by Ms Shepherd and was interviewed first on 27 July 2023 and again on 1 August 2023.

[26]At her first interview, the claimant disclosed that she had cancer some years ago but had recovered.

[27]The claimant was allocated a portfolio of properties. Her main duties were to manage queries from landlords and tenants arising from those properties and to book maintenance requests. She also had to ensure properties were compliant with legislative requirements, such as gas and electricity. Her normal working hours were 8.30am – 5.00pm, Monday – Friday, with a one-hour unpaid lunchbreak.

[28]Overtime was unpaid unless prior authorisation was received from Ms Busby. The claimant’s day started with a team meeting at 8.30am. This was a half hour meeting led by Ms Busby.

[29]The claimant’s employment was a probationary period. Lateness

[30]In late August 2023/ early September 2023, not long after starting the role, the claimant was late into the office on two or three occasions. We were not told for how long. On 12 September 2023, the claimant was taken aside after the morning meeting by Ms Busby and told not to be late in future. That was followed up in an email that was friendly in tone, however, it was also forwarded by Ms Busby to HR, copying in Ms Shepherd, to be kept on the claimant’s file. The claimant was unaware of this, and we were told that this is the respondent’s general practice.

[31]A non-White British colleague, ‘Jags,’ was also told not to be late on an occasion, and a White British colleague, Ms Parker, was also spoken to about lateness. Ms Parker had a health condition that was the cause of her lateness.

[32]On 13 and 14 September 2023, the claimant came to work later than two other similarly new colleagues. Following some additional required training, she had decided to take time to read through her training notes at home, feeling this was reasonable and akin to the flexible working style she had as a manager at her previous Customer Services role with another company. She accepts at no point did she tell Ms Busby that was her plan or when she would be in.

[33]On 15 September 2023, Ms Busby, raised this lateness with the claimant and sent a similar follow up email to her, again privately forwarding that to HR and Ms Shepherd to keep as a note on her file.

[34]There appear to be no further instances of lateness and that issue resolved. Concentration Case number: 3300560/2024 & 3303118/2024

[35]Ms Busby, on a number of occasions, told the claimant to concentrate during morning team meetings, because the claimant was sometimes distracted in them. For example, she accepted working on other things during the meetings and checking emails, as things did not feel particularly relevant to her at this early stage. She also said she ‘zoned out’ at points, which she linked to her disabilities, though the claimant’s evidence was vague as to how.

[36]We accept Ms Busby’s evidence that there was an occasion when the claimant was checking Instagram during the meeting; this was not challenged by the claimant in evidence.

[37]The claimant felt irritated by Ms Busby’s criticism, a sense exacerbated by her childhood trauma. She did not disclose that to Ms Busby.

[38]Ms Busby also criticised the claimant’s note-taking, which did require improvement, as acknowledged by the claimant. First one-to-one meeting

[39]On 6 October 2023, the claimant had her first one-to-one meeting with Ms Busby in which she appeared to be generally getting on well in the role; the claimant requested further training on renewals and acknowledged that there was, “lots of legislation to familiarise herself with” and that she was “happy with the maintenance side of things”. Ms Busby completed a form on her behalf. It notes that “Nothing is needed” from Ms Busby and that the claimant appreciates all the help she had given her so far. Claimant’s workload

[40]A WhatsApp message disclosed by the respondent on 12 October 2023, suggests that the claimant’s workload had been high and Ms Busby had assisted in lowering the claimant’s inbox at that time. Ms Busby tells the claimant she is, “absolutely smashing it” and is “an asset to the team”.

[41]Ms Shepherd acknowledged that the role itself is difficult, because it is reactive, involving numerous complaints. Though high, we did not find that the claimant had a higher workload than other colleagues, as she accepted she and Ms Parker had the lowest number of properties in the team. She received a high number of calls but that was not necessarily connected to the workload itself.

[42]The claimant said her portfolio was more complex than the rest of the team due to historic complaints; Mr Bevan and Ms Shepherd denied this and maintained it was suitable for a new-starter. We preferred the respondent’s evidence on this, as it was credible and consistent and the claimant could not substantiate her sense of having a higher workload than others.

[43]We found that the claimant did start to work an extra 20-30 hours to keep on top of her email inbox. This was her personal choice and not a requirement by the respondent. The claimant accepts she was never told explicitly to work more hours. Phone volume Case number: 3300560/2024 & 3303118/2024

[44]We found that staff desk phones were required to be at a level that was audible, possibly loud, though that is subjective. The claimant said the volume was 100%; Ms Busby said it was 50%. Staff were required to ‘ring around’ to check each other’s phones were audible. This suggests people did turn them down, perhaps as they were loud.

[45]It is said that Ms Busby only reduced the volume to 50% after a complaint was made about the noise by a white British team who sat behind the claimant’s team. Ms Busby was clear that she did not recall such a complaint and we accept her evidence about that, finding it to be credible. We did find there came a time where the call volume was lowered compared to what it had been, it was not clear which triggered this.

[46]We found that the respondent required calls to be answered promptly and did not permit them to be deferred where they involved complaints. In practice, staff members, including the claimant, did avoid calls sometimes. Training

[47]We find the claimant was given adequate training during her probation period. The training undertaken was captured in a flowchart. Additional training was organised by Ms Busby. Other methods of training included sitting with various colleagues to observe their work. The claimant could also ask questions of the team as she needed them. We accept the respondent’s evidence that this was all sufficient; the claimant did not give us examples or further explanation as to why it was not sufficient.

[48]The respondent facilitated a trainer to personally assist Ms Fazal, a white British staff member for depositary training in November 2023. Ms Fazal had been working for the respondent for 8 years and worked in a different team to the claimant. One-to-one training like this was not offered to the claimant, which she would have preferred. Second one-to-one meeting

[49]On 13 November 2023, the claimant had her second one-to-one meeting with Ms Busby in which she appeared to be struggling somewhat and less enthused, though ultimately the record of the meeting says, “no support required” and the claimant’s input states: “busy, complicated portfolio…still adjusting to everything.”

[50]By 17 November 2023, Ms Busby said she and Ms Robinson from HR were already discussing implementing a PIP in respect of the claimant. An email was disclosed late in support of this, however, whilst it notes criticisms of the claimant it does not mention that these concerns are in respect of a potential PIP. We therefore find insufficient evidence to say the PIP was being considered at this stage.

[51]On 20 November 2023, Ms Busby had a conversation with the claimant about a number of problems, including the claimant asking colleagues to say, ‘she’s not in,’ when a difficult caller rang. The claimant accepts doing this on an Case number: 3300560/2024 & 3303118/2024 occasion but that other colleagues did also. Ms Busby also discussed complaints from clients in respect of some of the claimant’s properties.

[52]Ms Busby followed this conversation up in an email which set out the issues in fuller detail and we find it did include additional issues not raised orally, as the claimant suggested, for example, that the claimant said, “Bruv, who does she think she’s talking to”. The claimant accepts saying this, and the language was inappropriate but points to it being a private conversation between her and another colleague, albeit it was in their shared public workplace. First protected act – Email 1

[53]On 21 November 2023, the claimant then responded to Ms Busby’s email, raising concerns of her own at 00.22am, for example, some comments Ms Busby made to her in the past.

[54]She also disclosed in that email: ‘it’s not an excuse but I have borderline personality and used to be medicated, however I managed to be put down to a low dosage. Looking at the comments below looks like I will have to go back on the higher dosage as it affects my moods mostly.”

[55]The claimant said this was a ‘meltdown’ on 21 November 2023 and that her colleague, Ms Parker, similarly had a meltdown previously and received help from Ms Busby. Ms Busby accepts helping Ms Parker with her workload in response to a one-to-one meeting with her and Ms Busby at which that ‘meltdown’ is said to have taken place. Second protected act – Email 2

[56]Upon reflection, the claimant then sent a second email at 10.22am on 21 November 2023 to Mrs Shepherd titled ‘complaint’, forwarding Ms Busby’s email to her; this included the comment about having borderline personality disorder and that she may increase her antidepressants. She mentioned being treated ‘differently’ and unfairly.

[57]The claimant told Mrs Shepherd she was not comfortable coming into the office until she had spoken to her in detail about Ms Busby and her concerns.

[58]On 22 November 2023, Mrs Shepherd, responded to the claimant’s email saying, “I’m sorry you feel that way” and tried to arrange a call to discuss. She also contacted HR.

[59]Mrs Shepherd did not initially get a response back from the claimant and called her several times unsuccessfully. She then issued an “AWOL” letter to the claimant and HR in respect of this absence. The claimant views the initiation of that AWOL process as refusing her request to work from home.

[60]However, it was not phrased as a formal request to work from home; she simply said she did not feel comfortable working with Ms Busby until she had spoken to Mrs Shepherd. Mrs Shepherd tried to facilitate that conversation as soon as possible. We do not find there was refusal to permit her to work from home. Case number: 3300560/2024 & 3303118/2024

[61]The claimant acknowledges she was allowed to work from home in the second week of November 2023 whilst unwell with flu-like symptoms, accordingly that part of that complaint fell away.

[62]On 22 November 2023, the respondent received a further complaint from a client about a maintenance issue that was moved on by the claimant, who then took no action for a week. The claimant did not dispute that factually in evidence. Ms Busby forwarded that complaint to Ms Shepherd and HR. Meeting on 23 November 2023

[63]The claimant met with Mrs Shepherd and Ms Busby, who received HR advice about it, to resolve the concerns from both sides. The claimant says she was not offered a print-out of her email which the other two had. We did not find this to be credible in light of the clear and consistent evidence from Mrs Shepherd and Ms Busby to say they offered a print-out to the claimant but she chose to look at the email on her phone. We do not find she was then criticised in any way for doing this by the respondent, as the claimant did not suggest how they did in her evidence.

[64]Mrs Shepherd accepts saying, “she would be annoyed too if she had to keep repeating herself,” referencing the concentration issues in the morning meetings.

[65]There is a factual dispute about whether Mrs Shepherd said the claimant should wear a mask, as the claimant suggests. Mrs Shepherd denied this and said the claimant raised this topic first, causing Mrs Shepherd to reference the PPE available. The claimant says she has asthma and never would have suggested this. We do find Mrs Shepherd said words to the effect that the claimant could wear a mask if she felt unsafe due to her reduced immune system. It was not said as a requirement or with any ill motive.

[66]We do not find that the claimant was told she will be “put in a corner like a baby”. Both Mrs Shepherd and Ms Busby gave clear and convincing evidence to strongly deny this, which we accept.

[67]Mrs Shepherd’s view was that all issues were resolved at the end of that meeting; in her mind it had been an informal grievance. The claimant felt sufficiently content to return to working at the office with Ms Busby.

[68]Following this meeting, Ms Busby, Mrs Shepherd and HR agreed they would implement a PIP.

[69]On 27 November 2023, the claimant’s ‘support meeting’ was cancelled by Ms Busby to prioritise welcoming two new colleagues arriving to her team. They were White British. PIP Meeting on 29 November 2023

[70]The claimant, Ms Busby and Mr Bevan then met to discuss the PIP (Mrs Shepherd was unavailable, being on leave). Case number: 3300560/2024 & 3303118/2024

[71]The claimant disclosed that she had anxiety and depression during this meeting and that she was taking escitalopram because she is now “stressed” at work. A summary of the meeting was sent to HR by Ms Busby, and to the claimant, including copies of the PIP and EAP. The claimant says she did not read the PIP document.

[72]Ms Busby accepts saying to the claimant during that meeting, “but last week you left a tissue on the table, you can appreciate other people don’t want to get ill either.”

[73]The claimant was placed on a PIP following this meeting.

[74]We do not find that the claimant was directed to sit in a corner around 29 November 2023 as she claims. She was offered Ms Busby’s permanent seat by the window. This was with the intention of limiting her exposure to others’ germs in the context of the claimant raising concerns about her low immune system. Additional property complaints

[75]On 8 December 2023, Ms Busy forwarded some additional complaints she had received in respect of the claimant’s properties to Mrs Shepherd and HR.

[76]Mrs Shepherd replied to that email asking HR if they can now dismiss the claimant in light of the additional complaints, one of which had required compensation to be issued to a client.

[77]Ms Busby was asked by HR to complete a request for dismissal form. That first draft was deemed inadequate by HR and a second fuller version completed. We find Ms Busby agreed with the decision to dismiss and it was ultimately a joint decision taken by her and Mrs Shepherd at this time.

[78]There was no independent or separate investigation into any property complaints. On their face they were connected to the claimant’s properties and we accept the respondent’s evidence that they were concerning and a reputational issue now, notwithstanding that this is a complaints-heavy role. This is due to the length of service and the recent advice already given about the underlying problems with the claimant’s work connected to the complaints.

[79]The claimant broadly denied these complaints were her responsibility, for example, she said that the heating issues had been long-standing for one property and the complaints could be about other properties, though she did not provide cogent evidence as to how that could be the case. We therefore rejected the claimant’s general position that she had been treated unfairly in respect of the property complaints. Dismissal

[80]The claimant was taken aside in a meeting room on 13 December 2023 by Ms Busby and Mrs Shepherd and advised of her dismissal.

[81]The claimant was not informed of her right to be accompanied at this meeting Case number: 3300560/2024 & 3303118/2024 or of her right to appeal. The respondent said they followed a modified dismissal process in light of the claimant being on probation.

[82]The dismissal letter, sent on 14 December 2023, was also silent as to the right to appeal.

[83]The claimant contacted ACAS the same day and continued to correspond with the respondent about her complaints. Victimisation

[84]In February 2024, a former tenant emailed the respondent in respect to a complaint he had, citing the claimant ‘getting fired’ during the process. The claimant said the respondent must have told him this. Ms Busby denied telling him or any staff members that the claimant had been dismissed.

[85]We found insufficient evidence to conclude that the tenant was told the claimant had been fired; it is equally likely he deduced that from the claimant’s own out- of-office email and/or sudden cessation of employment. We therefore did not find the facts of this complaint to be established. The medical evidence

[86]The claimant provided her GP records and two letters in connection with her Emotionally Unstable Personality Disorder (EUPD) and anxiety and depression. The GP records do not mention EUPD and appear on their face to solely relate to anxiety and depression.

[87]A letter dated 6 October 2015 says that ‘consideration’ should be given as to whether the claimant has borderline personality disorder, now known as EUPD.

[88]On 3 November 2015, a letter says there is, “no further need for assessment of diagnosis” and the claimant is continuing to receive psychotherapy. No reason is given as to why that decision was taken.

[89]On 27 July 2017 the claimant was discharged from psychotherapy having engaged well. The author of the letter encourages future private psychotherapy sessions if the claimant chooses. Her risk was assessed as being “low in all domains” and “no safeguarding issues were reported or identified”.

[90]On 19 February 2018, a diagnostic assessment report was completed in respect of dyslexia. The claimant had been struggling at university with concentration issues. That report concluded that she did have a “specific learning difficulty with some features linked to dyslexia” and she received an additional 25% of time in exams to accommodate this.

[91]On 23 June 2023, GP records show that the claimant visited her GP. There seems to be a drop-down or selection box for the reason for contact. Here “mild depression and severe anxiety” is selected; the GP entry reports: “mood not 100% due to a bereavement.”

[92]The claimant was taking citalopram 20mg at this time. Case number: 3300560/2024 & 3303118/2024

[93]On 18 July 2023, the GP records note a “mixed anxiety and depression flare up,” and her citalopram dose was increased to 40mg.

[94]On 21 September 2023, the claimant saw her GP for, “severe anxiety and severe depression.” It is noted that she wanted to reduce her citalopram to 10mg and does not want to increase the dose as her, ‘brain is more focused’. She linked that to her concentration issues in oral evidence though we found this was not present explicitly in the note. The claimant and GP agreed she should switch to escitalopram 5mg with a view to increasing it to 10mg.

[95]On 13 November 2023, the claimant saw her GP for an inhaler, she says in connection with her cancer-related low immunity issues, which we accept.

[96]On 22 November 2023, following receipt of the email from Ms Busby described above, the claimant requested that her escitalopram be increased to 20mg. She was currently on 5mg at that time.

[97]On 24 November 2023, the dose was increased to 10mg.

[98]On 15 July 2024, post-dismissal, the claimant received a formal diagnosis of EUPD and Panic disorder. Issues

[99]The final version of the list of issues is annexed to this judgment. Relevant Law Statutory definition of disability

[100]Under section 6(1) of the Equality Act 2010 (“EqA”): ‘(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.’

[101]Section 212 EqA defines “substantial” as meaning “more than minor or trivial”.

[102]Pursuant to Schedule 1, paragraph 2 of EqA:(1) ‘The effect of an impairment is long-term if— _ (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.

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

[103]Schedule 1, paragraph 5 EqA says: Case number: 3300560/2024 & 3303118/2024 ‘(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if—(a) measures are being taken to treat or correct it, and

(b) but for that, it would be likely to have that effect.’

[104]This means, for example, that the effects of taking measures like medication should be ignored, considering only the effect without that aid.

[105]This legislation means that, when considering whether a person is disabled, tribunals should ask themselves four different questions (Goodwin v Patent Office [1999] I.C.R. 302): i. Did the claimant have a mental and/or physical impairment? ii. Did the impairment affect the claimant’s ability to carry out normal day- to-day activities? iii. Was the adverse condition substantial? iv. Was the adverse condition long term?

[106]There is no onus on the claimant to adduce medical evidence to establish each of the four conditions above: “The presence or absence of medical evidence may be a matter of relevance to be taken into consideration in deciding what weight to put on evidence of claimed difficulties causing alleged disability but its absence does not of itself preclude a finding of fact that a person suffers from an impairment that has a substantial long-term adverse effect.” Veitch v Red Sky Group Ltd [2010] NICA 39 Substantial adverse effect

[107]The time at which to assess the disability, and whether there is an impairment that has a substantial adverse effect on normal day-to-day activities, is the date of the alleged discriminatory act (Cruickshank v VAW Motorcast Ltd

[2002] ICR 729

[108]Appendix 1 to the Equality and Human Rights Commission (EHRC) Code of Practice on Employment (2011) states that account should be taken not only of evidence that a person is performing a particular activity less well but also of evidence that ‘a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation’— para 9.

[109]Appendix 1 to the EHRC Employment Code states that ‘normal day-to- day activities’ are activities that are carried out by most men or women on a fairly regular and frequent basis, and gives examples such as walking, driving, typing and forming social relationships. Long term effect Case number: 3300560/2024 & 3303118/2024

[110]In All Answers Ltd v W

[2021] IRLR 612

, the Court of Appeal confirmed that the key question is whether, as at the time of the alleged discrimination, the effect of an impairment has lasted or is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at that date and so a tribunal is not entitled to have regard to events occurring subsequently.

[111]Where the issue is whether the effect is "likely" to continue for 12 months, the question is whether it "could well happen" or is a "real possibility". It is not a balance of probabilities question: Boyle v SCA Packaging Limited

[2009] ICR 105

, HL. Direct discrimination

[112]Direct discrimination is rendered unlawful by Section 13(1) EqA: “A person(a) (A) discriminates against another

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

[113]This involves a comparison. The definition of the “comparator” is at Section 23 EqA: “(1) On a comparison of cases for the purposes of [section 13] there must be no material difference between the circumstances relating to each case.

[114]This means that a claimant must have been treated less favourably than someone (the “comparator”) who was in the same, or not materially different, circumstances as the claimant.

[115]The comparator may be an actual person identified as being in the same circumstances as the claimant, albeit without her protected characteristic, or it may be a hypothetical comparator, constructed by the tribunal for the purpose of the comparison exercise.

[116]In Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

, HL, Lord Scott explained that this means that: “The comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class”. “Because of”: reason for less favourable treatment

[117]It is for the Tribunal to objectively determine, having considered the evidence, whether treatment is “less favourable”. While the claimant’s perception is, strictly speaking, irrelevant, their subjective perception of their treatment is likely to inform the Tribunal’s conclusion as to whether, objectively, Case number: 3300560/2024 & 3303118/2024 the impugned treatment was less favourable.

[118]The test to determine whether less favourable treatment is “because of” the protected characteristic is not a simple “but for” test. In other words, it is not sufficient that, but for the protected characteristic, the treatment would not have occurred, James v Eastleigh Borough Council

[1990] IRLR 288

[119]In terms of the required link between the claimant’s disability and/or race and the less favourable treatment, the two must be “inextricably linked”, Jyske Finands A/S v Ligebehandlingsnaevnet acting on behalf of Huskic: ECLI:EU:C:2017:278.

[120]The correct approach therefore is to determine whether the protected characteristic had a “significant influence” on the treatment, Nagarajan v London Regional Transport

[1999] IRLR 572

[121]The ultimate question to ask is “what was the reason why the alleged perpetrator acted as they did? What, consciously or unconsciously, was the reason?”, Chief Constable of West Yorkshire Police v Khan

[2001] UKHL 48

[122]This is a question of fact for the tribunal. The tribunal can draw inferences from the behaviour of the alleged perpetrator as well as taking surrounding circumstances into account.

[123]If there is more than one reason for the treatment complained of, the question is whether the protected characteristic was an “effective cause” of the treatment, O’Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School

[1996] IRLR 372

. Burden of proof under the Equality Act 2010

[124]The burden of proof for discrimination claims is set out in Section 136 EqA: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision”.

[125]In Laing v Manchester City Council and anor

[2006] ICR 1519

, Mr Justice Elias held that: “The onus lies on the employee to show potentially less favourable treatment from which an inference of discrimination could properly be drawn”.

[126]This requires the Tribunal to consider all the material facts without Case number: 3300560/2024 & 3303118/2024 considering the respondent’s explanation at this stage. However, this does not mean that evidence from the respondent undermining the claimant’s case can be ignored at stage one, Efobi v Royal Mail Group Ltd

2021 ICR 1263

[127]It is not enough for the claimant to show that there has been a difference in treatment between him and a comparator, there must be “something more”.

[128]In Madarassy v Nomura International plc

2007 ICR 867

, Lord Justice Mummery held: “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”.

[129]The consideration of whether there are material differences in the circumstances of an actual comparator compared to those of the claimant needs to take place before applying the shift in the burden of proof (Virgin Active Ltd v Hughes

2023 EAT 130

). Regarding a hypothetical comparator, the claimant must provide evidence consistent with the position that the comparator would have been treated more favourably. This requires the Tribunal to be able to draw inferences of likely treatment of a hypothetical comparator from the evidence before it.

[130]It is only if the initial burden of proof is reached that the burden shifts to the respondent to prove to the Tribunal that the conduct in question was in no sense whatsoever based on the protected characteristic, Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases

2005 ICR 931

[131]The word “detriment” has been construed broadly by Courts and Tribunals. In the leading case of Shamoon, the House of Lords held that it is only necessary for the Claimant to show some disadvantage. He or she need not show any material physical or economic consequence that was materially to his or her detriment. Discrimination Arising from Disability

[132]Subsection 15(1) of the Equality Act 2010 provides that: “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

[133]Limb (a) involves a two-stage test: Did the claimant's disability cause, have the consequence of, or result in, "something"? Did the employer treat the claimant unfavourably because of that "something"? It does not matter which way round these questions are approached. Case number: 3300560/2024 & 3303118/2024

[134]According to subsection 15(2), subsection 15(1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. It is not necessary, however, for A to be aware that the "something" arises in consequence of B’s disability, City of York Council v Grosset

[2018] EWCA Civ 1105

[135]The concept of unfavourable treatment is similar to a detriment (Williams v Trustees of Swansea University Pension and Assurance Scheme and another

[2018] UKSC 65

). There is a requirement that the disabled person “must have been put at a disadvantage” ie is something negative. No comparator or comparison is required.

[136]Regarding limb (b), to justify a legitimate aim which has a discriminatory effect, an employer must show that the means chosen for achieving it: i. correspond to a real need on the part of the undertaking; ii. are appropriate with a view to achieving the objective in question; and iii. are necessary to that end.

[137]When considering this claim, the tribunal should identify(1) whether there was unfavourable treatment, and by whom,

(2) what caused that unfavourable treatment (was it the ‘something’, including where that cause is a more than trivial reason if there is more than one cause), and

(3) did that something arise in consequence of the disability, Pnaiser v NHS England and Anor

[2016] IRLR 170

EAT.

[138]The question of whether the ‘something’ arises in consequence of disability only requires a loose factual connection. Failure to make reasonable adjustments

[139]Section 20(3) Equality Act 2010 requires a respondent (A) to do the following: “…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. …”.

[140]Section 21 Equality Act 2010 provides that a failure to comply with the three parts of Section 20 is a failure to comply with a duty to make reasonable adjustments, which is an act of discrimination. The employer must take reasonable steps to alleviate the substantial disadvantage where ‘substantial’ means “more than minor or trivial” (Section 212(1) Equality Act 2010).

[141]An employer is not liable in respect of a failure to make reasonable adjustments unless it knows or is reasonably expected to know that a PCP will place the employee at a substantial disadvantage, (paragraph 20(1)(b)).

[142]Whether or not the employer has adopted or operates the ‘PCP’ which Case number: 3300560/2024 & 3303118/2024 is being alleged is principally a finding of fact. Provisions and criteria are usually written down and understood to be rules or measurements for certain things to be done or made available.

[143]The tribunal will examine whether the circumstances amounting to the PCP have been applied to the claimant, and then consider whether it would be again, or applied in analogous scenarios to others. If the answer to those considerations is ‘yes’ then there is likely to be a practice, ie it is “the way in which things generally are or will be done,” Ishola v Transport for London

[2020] IRLR 358

[144]A ‘practice’ might be found where a tribunal considers there is an expectation or requirement for something to be done or not done.

[145]A holistic approach should be adopted when considering the reasonableness of the adjustments, including the timing of those adjustments, and may include factors such as the effectiveness of the steps, the cost, the practicability, and the nature and size of the employer, Burke v The College of Law and another

[2012] EWCA Civ 87

CA.

[146]Where the Tribunal is considering whether an employer should have made an adjustment suggested by an employee, the first question is whether the suggestion would have made any difference in alleviating the substantial disadvantage, First Group Plc v Paulley [2017] IRLR SC. Discussion and conclusions Does the claimant meet the definition of “disabled” set out within section 6 of the Equality Act?

[147]The respondent accepts that, during the material time, the claimant was disabled within the meaning of the EqA by reason of cancer and anxiety and depression.

[148]It makes no concession in respect of EUPD or dyslexia/”a learning difficulty associated with dyslexia” (shortened to “dyslexia”). The tribunal was therefore required to consider whether the claimant was also disabled in respect of these two additional impairments. Dyslexia

[149]In addition to cancer and anxiety and depression, the Tribunal concluded that the claimant did have a mental impairment at the time of events. We accepted the Diagnostic Assessment provided by the claimant from 2018 supports the fact that she suffers from short term memory problems and cognitive issues.

[150]We consider the impairments cited in the report at page 1080 had a substantial adverse effect on the claimant’s ability to carry out day to day activities. We note this was impacting her university studies, causing her to seek help. They appear to be more than minor or trivial. Case number: 3300560/2024 & 3303118/2024

[151]We consider that the learning difficulties factually described in the report were long-term at the time of events for the purposes of s.6, as they were likely to continue to affect the claimant for the rest of her life, certainly for more than 12 months as at the relevant time; this is because we take judicial notice that dyslexia or similar learning difficulties tend to remain with a person for the duration of their life, rather than fluctuate or resolve like other impairments.

[152]We therefore do consider the claimant was suffering from this disability at the relevant time. EUPD

[153]In respect of EUPD, it was not clear from the medical evidence that the claimant’s GP notes were in any way connected with EUPD, in addition to anxiety and depression; only the latter was expressly mentioned. There was therefore an evidential gap regarding the claimant’s EUPD and how it interrelated and was treated alongside her anxiety and depression.

[154]We were told psychotherapy was the treatment for EUPD, as supported by two medical letters from the claimant. However, in oral and written evidence, the claimant suggested the same medication for anxiety and depression also treats EUPD symptoms. It was not clear to what extent.

[155]We note that EUPD was not the focus of the claimant’s attendance at the GP, rather it was anxiety and depression.

[156]Seemingly, none of the symptoms of EUPD feature on the list of issues in respect of the claimant’s ‘arising from’ or reasonable adjustments claims; concentration issues feature, as do difficulties working in a noisy environment and answering calls immediately. However, mood issues, anger outbursts or emotional dysregulation, did not.

[157]We acknowledge there was cause for, at its highest, a suspected diagnosis of EUPD in 2015 but that required a formal assessment which never happened.

[158]Therefore, we accept the claimant’s oral evidence that she had the mental impairment of EUPD, based on her previous medical interactions and understanding. However, we do not find that the EUPD was having a substantial adverse effect on her ability to carry out day to day activities at the relevant time of her complaints. There is insufficient evidence to do so. The claimant made one reference to EUPD to the respondent, in terms of it affecting ‘her moods mostly’ but did not explain how this impacted her ability to carry out day to day activities or impacted her concentration.

[159]We note that the claimant was later diagnosed with EUPD in 2024 however this was 6 months after the events of her claim and the relevant time period.

[160]Based on the medical evidence available, we therefore concluded it was the anxiety and depression that was having the substantial adverse effect on Case number: 3300560/2024 & 3303118/2024 her at the relevant time, not the EUPD. Direct disability discrimination Did the Respondent know the Claimant was disabled?

[161]The respondent admits it had knowledge of the fact the claimant had cancer since the beginning of her employment.

[162]The respondent accepts that, from 21 November 2023, it had knowledge of the fact the Claimant asserted she had EUPD.

[163]The respondent accepts it had knowledge of the claimant’s anxiety and depression after the Claimant referred to it in the PIP meeting between the Claimant, Ms Busby and Mr Bevan on 29 November 2023.

[164]The parties agree that the respondent was not aware, during the relevant period, that the claimant had dyslexia. Did the Respondent treat the Claimant less favourably because of her disability?

[165]We first considered whether the claimant had proved facts from which, if unexplained, the tribunal could conclude that the following allegations of less favourable treatment, including her dismissal, was because she is disabled. We find that she did not. Our reasons are as follows. (i) Failure to give adequate training

[166]Regarding the comparator, an example of preferential treatment was given by the claimant in respect to training Ms Fazal. However, that staff member was in a different team and had been with the respondent for 8 years; her circumstances were not materially the same and therefore comparable to the claimant’s. We do not find her a suitable comparator. We therefore considered a hypothetical comparator.

[167]We found that the training given to the claimant may not have been excellent but it was adequate. It included three weeks of induction training given to all new recruits. We accepted the respondent’s consistent evidence that this training anticipated that some people would not have any prior experience in property management and it nonetheless sufficed.

[168]The claimant then had additional training in September 2023 and direct support on occasion from Ms Busby as evidenced by a WhatsApp message dated 12 October 2023.

[169]The claimant expressed appreciation in her 1-1 meeting note of the help received from Ms Busby, which suggests there was not a link between her disabilities and receiving training at this time. Case number: 3300560/2024 & 3303118/2024

[170]We were not persuaded by the respondent’s assertion that placing a person on PIP is itself a form of training and support. It is typically received as an adverse consequence of a person’s performance of their role.

[171]We found no evidence to shift the burden of proof that the claimant was treated less favourably in respect of training. (ii) On 15 September 2023, Ms Busby sent an email to the Claimant about being late back from training

[172]The claimant mentioned a comparator, Ms Parker, in respect of lateness. Ms Parker was not in materially the same circumstances as the claimant as she was not on probation. She was also spoken to about lateness in any event, and it appeared her health condition resulted in her having extended absences, unlike the lateness in this scenario. We next considered a hypothetical comparator.

[173]We found that the claimant was spoken to about her lateness but it was not because of her disability of cancer (the respondent not knowing about the anxiety and depression at this point).

[174]It was because she had been late back from training which the claimant accepted as a fact. She felt she was not afforded sufficient flexibility to read the notes and was not told a set time to be back to the office. However, she was the only new-starter who delayed her return. We found she felt entitled to the extra time, and took it, that being something she would have done as a manager in her previous role.

[175]However, this was a new role, she was on probation, and she should have communicated her wish to read the notes and delay her return to Ms Busby. It was therefore reasonable and appropriate for Ms Busby to talk to her in these circumstances. Ms Busby would have spoken to anyone about lateness in these circumstances and the claimant was not treated less favourably then another person would have been. (iii) Ms Busby told the Claimant in team morning meetings that she should concentrate

[176]We found Ms Busby did talk to the claimant about her concentration. She did not know about the anxiety and depression and so the disability relied on here is cancer. The claimant made no link between her treatment here and her cancer.

[177]We found she was not treated worse than another person would have been.

[178]At the 23 November 2023 meeting the claimant told Ms Busby she ‘cannot always concentrate in morning meetings if something has happened the night before’. This is not connected to her disability.

[179]The claimant spoke of ‘zoning out’ and ‘switching off’ but did not make a clear link between that and her cancer. She mentioned she would start some Case number: 3300560/2024 & 3303118/2024 work and did not directly dispute the suggestion she was on Instagram on an occasion.

[180]We find any person on their probation would have been spoken to by Ms Busby in these circumstances about their concentration and in any event, it was not because of her disability. (iv) Required the Claimant to work long hours due to her being given more work than everyone else

[181]We were not satisfied that the claimant was given more work than others. The claimant did initially work extra hours but she told us she did this to get on top of her workload, it was not a request by the respondent.

[182]The claimant’s oral evidence was that she and Ms Parker had the fewest properties in their portfolio of the whole team, as set out on the team whiteboard.

[183]We were not taken to any documents that indicated that she had a higher caseload and we accepted Mr Bevan and Ms Shepherd’s oral evidence that her portfolio did not generate a greater workload than others. We therefore find this factually did not occur. (v) Subjecting the Claimant to criticism about her note taking

[184]We have found that the claimant acknowledged her note-taking needed improvement. This criticism was a justified management concern, not less favourable treatment and not because of her cancer or anxiety and depression. (vi) Failing to disclose to HR that the Claimant had cancer, depression and had reported unsafe working conditions to Ms Busby (failure to provide adequate training, excessive workload, turning up the volume of the phones)

[185]The respondent accepts not disclosing to HR that the claimant had cancer. They say this was because the claimant told them she had recovered.

[186]They accept not disclosing her cancer-related low immune system to HR.

[187]The respondent says it disclosed the claimant’s anxiety and depression to HR and her concerns about unsafe working conditions. This was by forwarding on meeting notes mentioning the discussion had as dialogue or forwarding the email itself in which the claimant self-disclosed them.

[188]We do find there was no express flagging of these issues to HR by the respondent and there was no occupational health referral.

[189]We found Ms Busby did not tell HR about the phone volume issue, though did mention the workload and training concerns.

[190]In respect of these failures to disclose to HR, we cannot find that this was because of the claimant’s disability. For example, the claimant herself had Case number: 3300560/2024 & 3303118/2024 indicated her cancer diagnosis was something in the past and was not causing ongoing concerns; it was mentioned in the context of explaining the gap in her CV. There is not ‘something more’ to suggest the failure to mention phone volumes was because of the claimant’s disability.

[191]It would have perhaps been advisable for the respondent to more explicitly flag health conditions and related concerns to HR, rather than rely on forwarding a message where they were subsumed by other matters. That however does not amount to less favourable treatment because of disability. (vii) Refused the claimant’s requests to work from home

[192]It was not clear from the claimant’s evidence what request to work from home in the second week of November 2023 she had made. In any event, she agreed she was permitted to work for three half days at home whilst she was unwell with flu-like symptoms.

[193]Her complaint about the AWOL procedure being initiated in respect to her not coming into the office between 21 and 24 November is essentially one of unfairness. We can understand why the claimant felt it was harsh; she had explained to Mrs Shepherd that she did not feel comfortable coming into the office until she had discussed her concerns with her. Mrs Shepherd would arguably have known where she was and why she was not coming in at the point the AWOL was issued.

[194]On the other hand, we accept Mrs Shepherd’s evidence that she was worried about the claimant and that she owed her a duty of care. In the context of Mrs Shepherd trying, and failing, to reach her by phone and email, we found it understandable that the AWOL was issued. It was not a refusal of a request to work from home. Even if it were, there was no evidence to suggest this was because of the claimant’s disability. (viii) At the meeting on 23 November 2023, failed to provide a copy of the claimant’s complaint.

[195]We did not find this factually happened, as set out in our findings above. (ix) At the meeting on 23 November 2023, Mrs Shepherd said she would be annoyed too if she had to repeat herself

[196]Mrs Shepherd accepts saying this. We found no evidence that this was said because of the claimant’s cancer, or any other disability. It was simply a personal view which she would have shared with anyone in that situation, regardless of whether they had the claimant’s disability. (x) At the meeting on 23 November 2023, Mrs Shepherd said the claimant should wear a mask.

[197]We did not find this factually happened, as set out in our findings above. (xi) At the meeting on 23 November 2023, the claimant was told she will be “put in the corner like a baby”. Case number: 3300560/2024 & 3303118/2024

[198]We did not find this factually happened, as set out in our findings above. (xii) On or around 29 or 30 November 2023, the claimant was directed to sit in the corner.

[199]We found this discussion arose in the context of navigating concerns the claimant had raised about her low immunity and with the intention of trying to reduce her risks. This discussion would have happened with any colleague; we do not consider it to be less favourable treatment. (xiii) At the PIP meeting on 29 November 2023, the claimant was told, “last week she left tissue on the table; other people don’t want to get ill either”.

[200]Ms Busby admits saying this and that she is a ‘tidy person’. We find Ms Busby would have said this to anyone in the same context. It was raised in the context of the claimant not wanting to get sick from other people. The claimant may well have found this to be a patronising remark but it was not less favourable treatment because of her disability. There was not the ‘something more’ required to shift the burden of proof. (xiv) The claimant was placed on a PIP

[201]The claimant was placed on a PIP but this was because of the accumulation of complaints and concerns about her work acquired in her probationary period. The claimant did not accept responsibility for the property complaints. Rather she said the issues were either long-standing and thus not attributable to her work or queried whether the records were accurate and the complaints were in fact about her and her properties

[202]We accept the claimant’s point that no independent investigation was carried out in respect of these property complaints; effectively, Mrs Shepherd relied on Ms Busby’s reporting and analysis of them. However, we were satisfied that, on their face, the complaints were directly attributable to the claimant and raised legitimate concerns for the respondent.

[203]We consider that any person on probation and receiving those complaints would have likely been placed on a PIP; it was not because of the claimant’s disability. (xv) Ms Busby helped Ms Parker during a meltdown.

[204]Ms Busby accepts helping Ms Parker with her work following a one-to- one meeting at which she ‘had a meltdown’. Ms Busby also helped the claimant clear some emails and work in October 2023. The help from Ms Busby trailed off as the claimant stopped asking her as many questions, instead turning to other members of the team.

[205]Our understanding is the claimant was comparing her meltdown of 21 November 2023 to Ms Parker’s meltdown (about which we heard little). However, the claimant did not want to speak to, or have help directly from Ms Busby, in light of her concerns. Instead, she wanted to speak to Mrs Shepherd first. This was accommodated and it seems the first meeting resolved Case number: 3300560/2024 & 3303118/2024 sufficiently well to enable the claimant to return to work. Ms Busby had shown herself willing to help relieve the claimant’s workload in the past.

[206]We therefore do not accept that this was less favourable treatment. (xvi) Failed to let the claimant be accompanied on 13 December 2023

[207]We find the respondent did fail to inform the claimant she could be accompanied at her dismissal meeting or provide that as option. We find this was because they were applying a modified disciplinary approach due to the claimant being on probation. The claimant is not entitled to bring an unfair dismissal claim focussing on that procedure, as she did not have the requisite length of service. Therefore, we make no finding on the appropriateness or not of that decision. We find it was not because of the claimant’s disabilities. (xvii) Dismissed the claimant on 18 December 2023

[208]The claimant was dismissed on this date. We find that any person on their probation with the same accumulation of complaints about their work would have been treated in the same way. The claimant was not therefore treated less favourably than someone without her disabilities.

[209]Perhaps the respondent could be criticised for not allowing more time for the PIP to take effect and for the claimant to improve. However, it is clear given the promptness of Mrs Shepherd’s email to HR about the additional complaints received on 8 December 2025 that, as a matter of fact, it was those complaints that were the operative reason for the claimant’s dismissal, and not her disabilities. Failure to make reasonable adjustments Did the respondent know or could it reasonably have been expected to now that the claimant had the disability? From what date?

[210]The respondent concedes knowledge of the claimant’s anxiety and depression from 29 November 2023.

[211]The claimant accepts she did not explicitly mention having anxiety and depression prior to the meeting between her, Ms Busby and Mr Bevan.

[212]The respondent concedes knowledge of the claimant’s cancer diagnosis from 27 July 2023, the time of the claimant’s first interview.

[213]The respondent had no knowledge of the claimant’s dyslexia, as the claimant, on her own admission, did not tell them at any point during her employment. It was not suggested that the respondent should have reasonably been expected to know she had this particular disability.

[214]The claimant’s oral evidence suggested that she did not realise that any of her disabilities would adversely affect her during employment with the respondent, as she described having no similar issues with previous employers. Case number: 3300560/2024 & 3303118/2024

[215]We do not consider that anything the claimant said or did prior to her meeting on 29 November 2023 meant the respondent could have been reasonably expected to know about her EUPD or anxiety and depression; there were no clear symptoms indicative of those underlining conditions and no clear communication by the claimant prior to the dates we have discussed.

[216]This means that we could only consider cancer as being the operative disability for any complaints prior to 29 November 2023. Did the respondent have the following PCPs? “Requiring the phone to be answered immediately”

[217]Based on the evidence we heard and considered, we found that the respondent expected phones to be answered promptly and that calls could not be postponed where there was a complaint or ‘difficult’ caller involved.

[218]The expectation, as set out by Ms Busby, was that callers would be given an update on their issue, “even if there was no update”. That was the general way of doing things that applied to everyone.

[219]We therefore did find this PCP to be made out. “Requiring the ring tone on employees’ phones to be on full volume”

[220]We found that the respondent did require the phones to be audible and properly heard. Sometimes staff members adjusted their volumes to a lower level. We could not say they were required to be on 100% volume as the claimant gave evidence only as to her subjective perception about this and Ms Busby denied them being on 100%; she added there was no way of saying precisely what level the volume was on the phones themselves.

[221]We accept the claimant, and other colleagues, perceived the volume to be loud, as many of them tried to turn it down at various times.

[222]We do not find there was a PCP for the phones to be at full volume; though there was a PCP for phones to be properly audible.

[223]Regarding the PCP “requiring work to be done in a noisy environment,” the claimant withdrew this in oral evidence, as her concern was about the noise caused by her phone near her laptop, not the general noise level in the room. Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability?

[224]We did not find that any complaint prior to 29 November 2023 put the claimant at a substantial disadvantage by virtue of her cancer. She did not suggest this to be the case, as her focus seemed on her mental health difficulties caused by anxiety and depression/EUPD.

[225]Post-29 November 2023, we did find that the PCP of requiring the phones to be answered immediately did put the claimant at a substantial Case number: 3300560/2024 & 3303118/2024 disadvantage in respect of her anxiety and depression. Her condition exacerbated the normal anxiety anyone would feel when faced with a difficult caller and complaint, though we note that there was nothing from the call logs that suggested a dip in her ability to take calls during this period.

[226]We did not find that the PCP regarding phone volume placed the claimant at a substantial disadvantage by way of her anxiety and depression post-29 November 2023 because her call logs suggest she was able to carry out her work well from this time; there is no notable dip or issue disclosed from the call logs.

[227]Equally, it seems that other colleagues were affected by the volume of the phones on the claimant’s evidence, and so she was not worse off than others. There was no medical evidence, or oral evidence, to establish that her cancer and/or anxiety and depression caused heightened noise sensitivity. Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?

[228]We note that the claimant did not raise any concern with the respondent about being required to answer phones immediately, she simply chose to adopt her own approach of not answering them when she did not want to. She did not request any form of adjustment, nor did she link her difficulty in answering calls immediately at any point to her anxiety and depression.

[229]She had worked as a manager in a busy call centre dealing with complaints for many years.

[230]In this context, we therefore do not find that the respondent knew, or could have reasonably been expected to know, that the claimant was likely to be placed at this disadvantage.

[231]Even if we were wrong about that, we do not consider that the steps suggested by the claimant to avoid the disadvantage were reasonable. For example, requiring other colleagues to take messages or to have a reduced volume. This would have created a backlog of calls and issues to resolve, which the claimant was already struggling to keep up with. Also the respondent’s clients required their assigned Property Manager to consistently deal with them for continuity. The steps would have also unreasonably added to other colleagues already high workload.

[232]For these reasons, this complaint fails. Discrimination arising from disability

[233]We consider the respondent did treat the claimant unfavourably by placing her on a PIP and dismissing her. We do not consider the PIP to be regarded as a supportive measure, as suggested by the respondent, but rather one designed to correct the claimant’s shortcomings in the role to date.

[234]We then next considered whether the claimant’s problems in concentrating and her difficulty working in a noisy environment (connected to Case number: 3300560/2024 & 3303118/2024 the phone volume) arose in consequence of her relevant disabilities, namely anxiety and depression, dyslexia and cancer.

[235]We found that they did, in light of her medication increase; her issues identified in her 2018 report and the oral evidence she gave about the effects of cancer on her concentration looking back at that time.

[236]We then considered whether the PIP and/or dismissal were because of the claimant’s difficulty concentrating and/or because of her difficulty working in a noisy environment.

[237]We did not conclude that it was in either instance. This is because both the concentration and phone volume issues did not feature as a real focus in either of the claimant’s or respondent’s concerns about each other by the time things had worsened between them in November 2023.

[238]The PIP and dismissal were factually because of the complaints received about the claimant’s work, which the claimant did not link to her concentration or noise sensitivity. The claimant pointed to systematic or longstanding issues with her portfolio or the unreliability of the complaints themselves, rather than difficulties in her performance caused by her health conditions.

[239]Whilst her concentration seemed a concern of Ms Busby’s in the beginning, and of the claimant’s in terms of Ms Busby’s response to it, we have found that matter was resolved by the first meeting with Ms Busby, Ms Shepherd and the claimant.

[240]The property complaints superseded those concerns and it is that which led to the PIP and ultimate dismissal, following receipt of further complaints on 8 December 2023.

[241]We therefore do not consider that the unfavourable treatment was because of any of those things, namely the concentration or the difficulty working in a noisy environment. Direct race discrimination

[242]We first considered whether the claimant had proved facts from which, if unexplained, the tribunal could conclude that the following allegations of less favourable treatment were because she is not White British. We find that she did not. Our reasons are as follows.

[243]Regarding the actual comparators in the list of issues here, apart from Ms Fazal and Ms Parker, the claimant did not mention these in her oral evidence; her case about them was very vague. She did not set how they were in materially the same circumstances, save for race. Given the lack of clarity here, we rejected the other named comparators and went on to consider hypothetical comparators. Did the respondent treat the claimant less favourably because of her race? Case number: 3300560/2024 & 3303118/2024 (i) Spoken to about lateness

[244]We accepted, and found credible, Ms Busby’s evidence that she would speak to anyone who presented as late within her team. She accepted speaking to the claimant, “Jags” and Ms Parker about lateness. Ms Parker was white British; Jags and the claimant were non-White British. Ms Busby was asked why she had not spoken to other White British team members about lateness and her recollection is, simply, because they were not late, which we accept. (ii) Being criticised for inappropriate language namely “bruv” and “who does she think she is”

[245]The respondent accepts doing this. We find Ms Busby would have challenged anyone who used this language in an open plan workplace.

[246]Whilst it was a private conversation in the sense the claimant was speaking to Jags, she could be overheard by others, whether she or they wanted to or not. She acknowledged needing to lower her voice to Ms Busby in her email and, in oral evidence, that the language was inappropriate itself.

[247]There was no evidence to link this to race in anyway. (iii) Allowed a 1:1 trainer for Ms Fazal on Depository

[248]As above, we did not consider the claimant to be in materially the same circumstances as Ms Fazal, who was based with a different team and had worked for the respondent for 8 years, as opposed to being in her probationary period. We therefore did not consider her to be an appropriate comparator.

[249]In respect of a hypothetical comparator, we did not consider the training to be inadequate or withheld in any way because of the claimant’s race. There was simply no evidence of this. (iv) Adjusting the phone to 50% when other white British employees complained

[250]We did consider it more likely than not that Ms Busby reduced the volume of the phones from a point in October 2023, as the claimant says.

[251]However, we heard no evidence of ‘something more’ that could point to race being the reason or having a significant impact on this decision. Ms Busby does not recall a complaint being made by the White-British team behind. On the claimant’s own case, others in her own team reduced the volume on their phone, suggesting Ms Busby’s approach to the volume was consistent among colleagues and irrespective of race. (v) Criticising the claimant’s notes

[252]For the reasons set out under Direct Disability Discrimination, this was not less favourable treatment because of race. Case number: 3300560/2024 & 3303118/2024 (vi) 27 November 2023 support meeting cancelled

[253]We accept Ms Busby’s evidence that the support meeting was cancelled to prioritise two new colleagues starting. There is no ‘something more’ to shift the burden of proof or otherwise link this to race. It is understandable that new starters would be prioritised in terms of settling them in to ensure a positive start. This was not less favourable treatment because of race. Victimisation Did the claimant do a protected act by raising a complaint by email on two occasions on 21 November 2023 and on 23 November 2023?

[254]The respondent concedes the claimant did a protected act by sending her second email of 21 November 2023 and her email on 23 November 2023. It nonetheless says it did not consider these to be a protected act at the time.

[255]We do find that each of the emails were protected acts. The claimant used the word ‘discriminatory’ and spoke of her ‘different’ and ‘unfair’ treatment.

[256]However, we do not consider that the detriments of placing the claimant on a PIP and then ultimately dismissing her, were because of these protected acts. They were as a result of complaints received in respect of the claimant’s properties and concerns about her performance, as described above.

[257]The dismissal, as discussed above, was triggered by the further complaints received following the PIP meeting on 8 December 2023. That was the operative concern in the minds of Ms Shepherd and Ms Busby, the joint decision-makers.

[258]A further detriment is alleged by the claimant, of disclosing personal information about her employment history to a tenant in February 2024. Our findings in respect of that are set out above. We do not find this factually occurred on the evidence, which was too limited to allow us to do so; any finding would have been speculation, which we are not permitted to do. Conclusion

[259]In light of the above, each of the claimant’s complaints fails and are accordingly dismissed. Approved by: Employment Judge McCooey 30 September 2025

[1]Disability 1.1 Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about by reason of the impairments of borderline personality disorder/emotional unstable personality disorder and/or dyslexia/ specific learning difficulty with some features linked to dyslexia or OCD? The Tribunal will decide:1.1.1 Did she have a mental impairment?

1.1.2 Did it have a substantial adverse effect on her ability to carry out day-to-day activities and in particular on her ability to concentrate?

1.1.3 If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?

1.1.4 Would the impairment have had a substantial adverse effect on their ability to carry out day-to-day activities without the treatment or other measures? Case number: 3300560/2024 & 3303118/2024

1.1.5 Were the effects of the impairment long-term? The Tribunal will decide how long they continued and in particular:1.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?

1.1.5.2 if not, were they likely to recur?

[2]Direct disability discrimination (Equality Act 2010 section 13)2.1 Did the respondent do the following things:

(i) Failed to give the claimant adequate training

(ii) On 12 September 2023 Aston Busby spoke to the claimant about being late (no one else was spoken about being later other than “Jags”).

(iii) On 15 September 2023 Aston Busby spoke to then sent the claimant an email about being late back from training.

(iv) Aston Busby told the claimant, in morning team meetings that she should concentrate.

(v) Required the claimant to work long hours due to her being given more work than everyone else.

(vi) Subjected the claimant to criticism about her note taking.

(vii) Failed to disclose to HR that the claimant had cancer, that she had suffered depression, and that she had reported unsafe working conditions to Aston Busby (the unsafe working conditions are failure to provide adequate training, excessive workload, turning up the volume of the phones).

(viii) Refused the claimant’s request to work from home made at around the beginning of the second week of November 2023 and 21st November 2023- 24th November 2023.

(ix) At a meeting on 23 November 2023 (a meeting to discuss the complaint) failed to provide the claimant with a copy of her complaint and the claimant was then criticised for using her phone to be able to have a copy of her complaint.

(x) At the meeting on 23 November, Karen Shephard said that the she would be annoyed too if she had to keep repeating herself.

(xi) At the meeting on 23 November 2023, Karen Shephard said that the claimant should wear a mask.

(xii) At the meeting on 23 November 2023 the claimant was told that she will be “put in a corner like a baby”.

(xiii) On around 29 or 30 November 2023 the claimant was directed to sit in the corner. Case number: 3300560/2024 & 3303118/2024

(xiv) At the PIP meeting on 29 November 2023, the claimant was told “but last week you left a tissue on the table you can appreciate other people don't want to get ill either".

(xv) Placed the claimant on a PIP on 29 November 2023. ( ) Around beginning of december 2023 Helped Aston Busby helped Ms Parker with her workload when she had a melt down in her one to one meeting but refused to help the claimant when she had her melt down (xvi) Failed to allow the claimant to be accompanied at the meeting on 13 December 2023 where she was informed of her dismissal. (xvii) Dismissed the claimant on 13 December 2023. Indirect discrimination? (vi) Rule by adjusting turn the claimant’s phone (ring tone) volume to full

2.2 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant relies on Alisha Parker or a hypothetical comparator.

2.3 If so, was it because of disability?

2.4 Did the respondent’s treatment amount to a detriment? 2A - Reasonable Adjustments (Equality Act 2010 sections 20 & 21) 2A.1 Did the respondent know or could it reasonably have been expected to now that the claimant had the disability? From what date? 2A.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: 2A.2.1 Requiring the phone to be answered immediately; 2A.2.2 Requiring the ring tone on employees’ phones to be on full volume/adjusted; and 2A.2.3 Requiring work to be done in a noisy environment. 2A.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that she could not cope with being required to speak immediately to a person who had phoned up as she needed time to compose herself and she found it difficult to function in a noisy environment? 2A.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? 2A.5 What steps could have been taken to avoid the disadvantage? The claimant suggests: Case number: 3300560/2024 & 3303118/2024

[1]A colleague could have taken a message from callers and the claimant could then have called them back when she was prepared for the phone conversation;

[2]The claimant could have been permitted to keep the volume on her phone low or for the phone to be on silent with a light to alert her to an incoming call;

[3]The claimant could have been permitted to work in a quieter environment 2A.6 Was it reasonable for the respondent to have to take those steps? 2A.7 Did the respondent fail to take those steps? 3 Discrimination arising from disability (Equality Act 2010 section 15)3.1 Did the respondent treat the claimant unfavourably by:3.1.1 Placing her on a PIP 29 November 2023.

3.1.2 Dismissing the claimant on 13 December 2023.

3.2 Did the following things arise in consequence of the claimant’s disability and if so, by reason of which impairment:3.2.1 The claimant’s problems in concentrating.

3.2.2 The claimant’s difficulty working in a noisy environment. (claimant's phone volume)

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

3.4 In respect of 3.3, did the respondent know or could it reasonably have been expected to know, that the claimant was disabled by reason of the relevant impairment identified in 3.2?

3.5 Was the treatment a proportionate means of achieving a legitimate aim namely:3.5.1 in relation to the PIP to support the claimant in improving her performance such that she could deliver her role more effectively; and

3.5.2 in relation to the dismissal, to ensure that it did not have an employee in the team in respect of whom there was no realistic prospect of improvement in performance to the standard required, that the risk of complaints and associated reputational and financial harm was removed, and that the management time committed to both informal and formal support did not become disproportionate.?

3.6 The Tribunal will decide in particular: was the treatment an appropriate and reasonably necessary way to achieve those aims; could something less discriminatory have been done instead; and how should the needs of the claimant and the respondent be balanced? Case number: 3300560/2024 & 3303118/2024

[4]Direct race (Equality Act 2010 section 13)4.1 Did the respondent do the following things:4.1.1 Spoke to the claimant about being (no one else spoken to other than another employee “Jags”). The claimant will say that herself and Jags were non White British employees, other employees who were White British were not spoken to when the arrived late

4.1.2 Criticised the claimant in respect of using alleged inappropriate language, i.e. saying the word ‘Bruv’ when speaking with Jags in a private conversation, the claimant was criticised as unprofessional.

4.1.3 Allow a trainer to come in for Ms Fazal (white British) for depositary training in november 2023

4.1.4 Adjusting the phone to around 50% after (team members all white British near the team complained about the noise in Aston Busby's team been loud)

4.1.5 Critised her about her note taking while the British white members of the team where not.

4.1.6 27th November 2023 My support meeting was cancelled to prioritirised 2 white British colleagues moving over to Aston busby's team

4.2 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant says she was treated worse than the respondent’s White British employees namely Mr Roberts, Ms Parker, Mr Cracknell, Ms Yorke, Ms Fazal/Hurn, Ms Stubbins and the white british team working directly behind Aston Busby's team.

4.3 If so, was it because of race?

4.4 Did the respondent’s treatment amount to a detriment?

[5]Victimisation (Equality Act 2010 section 27)5.1 Did the claimant do a protected act as follows: (2 x emails sent on 21.11.23) 5.1.1 By raising a complaint by email on 21 November 2023 and 23 November 2023 about her treatment by Aston Busby?

5.2 Did the respondent do the following things:5.2.1 Place the claimant on a PIP 29 November 2023.

5.2.2 Dismissing the claimant on 13 December 2023. Case number: 3300560/2024 & 3303118/2024

5.2.3 In February 2024 disclosed personal information about the claimant’s employment history to Brandon Bartlett, a tenant of one of their customers.

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

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

[6]Remedy for discrimination or victimisation6.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

6.2 What financial losses has the discrimination caused the claimant?

6.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

6.4 If not, for what period of loss should the claimant be compensated?

6.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

6.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

6.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

6.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

6.9 Did the respondent or the claimant unreasonably fail to comply with it by failing to consider the claimant’s grievance and further grievance sent to HR about the dismissal on the 13th December 2023?

6.10 If so, is it just and equitable to increase or decrease any award payable to the claimant?

6.11 By what proportion, up to 25%?

6.12 Should interest be awarded? How much?

6.13 Should any financial award be reduced on the basis of contributory fault on the part of the claimant? If so, by how much? Harrassment on the grounds of disability Harrassment on the grounds of race aggraved damages due to respondents employing my colleague Mr Bracknell Case number: 3300560/2024 & 3303118/2024 EMPLOYMENT TRIBUNALS Claimant: Miss H Mokhtar Benounane Respondent: LRG Employees Limited

REASONS

[1]This request was made on 15 October 2025 but not forwarded to me until 27 November 2025. I apologise for the delay this caused in responding.

[2]There is no reasonable prospect of the original decision being varied or revoked for the following reasons:

[3]Under Rule 68 of the Employment Tribunal Rules of Procedure 2024, a Judgment may be reconsidered if it is “necessary in the interests of justice to do so”.

[4]In making that decision, the Tribunal must give effect to the overriding objective to deal with cases “fairly and justly” (Rule 3). This allows a broad discretion to determine what “the interests of justice means” in any particular case, and in relation to both parties, not just the applicant. Finality of proceedings is an important consideration alongside the applicant’s reasons for reconsideration.

[5]The claimant’s application, including the attachments and points raised in later follow up emails, set out various points of disagreement with the Tribunal’s findings, reasoning and procedural elements of the hearing heard on 1-4 September 2025.

[6]The key concerns are as follows:

[7]Procedural unfairness and reasonable adjustments: The claimant said she ‘zoned out’ during points of evidence and her lack of legal representation made it difficult to crossexamine effectively. Case number: 3300560/2024 & 3303118/2024

[8]The claimant acknowledges she was given reasonable adjustments during the hearing, which included breaks and placing the respondent’s witnesses further back in the room and apart from one another “Although the tribunal afforded me time and patience and I do appreciate it. I now recognise that I did not understand how to challenge inconsistencies in the respondent's evidence or to test credibility effectively.” “During the hearing, I was self-represented, and requested additional time and breaks to process information; the Tribunal did allow this, but I ask whether the Tribunal’s management of time, questioning, and fairness could be revisited to assess whether any disadvantage was caused.” “I know lots of adjustments were made and I appreciate the help in finding page numbers, it however made me realise how much help I really needed presenting the case and how disadvantaged I really was.”

[9]As mentioned in our Reserved Judgment, we did not observe the claimant to zone out in the way she describes, nor was there medical evidence presented to us that explained this was a clear feature of her disabilities.

[10]The claimant had ample opportunity to seek legal representation or bring a person to support her at the hearing to assist with cross-examination. She had prepared numerous cross-examination questions which she was able to ask of each witness over several hours. The Tribunal assisted in rephrasing questions where needed, but this was not often. The claimant asked questions articulately and with a clear sense of the point she wished to convey.

[11]The claimant says she was not in a position to challenge the veracity of documents in the bundle however she spent a large portion of her cross-examination challenging the authenticity of the notes and other documents produced by the respondent. She has since sent a number of DSAR documents and analysed them as part of this application. However, it not clear what features of the documents themselves suggest they were doctored, ‘fake’ or otherwise misleading.

[12]Regarding the absence of her witnesses, the respondent had passed on the claimant’s name to each of her potential witnesses and asked them to make contact with her. She confirmed that none of them had done so and she did not challenge the respondent about this any further. She did not suggest the hearing should not proceed without them nor raised this as a concern prior to the final hearing.

[13]Regarding our finding in respect of EUPD and the evidential ‘gap’, the claimant had ample opportunity to present any medical evidence she wished to rely on prior to the final hearing. She now seeks to rely on post-Judgment medical evidence, however that is unlikely to assist in determining the impact of her EUPD at the time of her complaints, and in any event, would not change the outcome of the case. The claimant did not say, as she now does, that medical evidence was missing from the bundle. She had 4 days over the course of the final hearing to check this and alert us to that.

[14]The claimant mentions other employees who have had similar treatment at the hands of the respondent, one for the first time. The Tribunal must look at each case before it Case number: 3300560/2024 & 3303118/2024 individually and in particular, how the claimant was treated; if the claimant wished to rely on the evidence of either of the individuals she mentions in her application, she had ample opportunity to take steps to call them as a witness, or otherwise obtain a statement from them, prior to the hearing.

[15]The other items raised by the claimant include dissatisfaction with the Tribunal’s reasoning; our findings on credibility; and the weight attached to certain parts of the evidence. Nothing specifically is identified that makes it necessary in the interest of justice to vary or revoke our Judgment. The claimant mentions errors of law and or fact but does not specifically say what that was.

[16]According, the application is refused and the Judgment under reconsideration is confirmed. Approved by: