Miss E Packwood v CP Woburn (Operating Company) Ltd: 3300578/2024 and Others

EMPLOYMENT TRIBUNALS

Case No 3300578/2024

Between

Miss E PackwoodClaimant

CP Woburn (Operating Company) LtdRespondent

Before

Employment Judge Wyeth

Mr M McBride (instructed by Solicitor) for respondent

Date 9 July 2025

JUDGMENT

[1]The claimant’s impairment of Rolandic epilepsy was a disability until 2012 so as to fall within section 6(4) of the Equality Act 2010 (“the Act”). Accordingly the claimant meets the definition of disability by reason of this past disability so as to be covered by relevant provisions of the Act.

REASONS

Introduction

[1]This matter came before me today (4 October 2024) listed for a public preliminary hearing (“PPH”) for one day. Amongst other things, the purpose of this PPH was to determine whether the claimant was a disabled person as defined by s6 of the Equality Act 2010 (“EqA”) by reason of impairments of autism and/or Rolandic epilepsy.

[2]On 6 September 2024, the respondent wrote to the tribunal conceding that the claimant’s autism was a disability but disputing that the claimant suffered with Rolandic epilepsy during her employment (October 2022 to March 2024) and whether it amounted to a disability when she did suffer with it as a younger child. Accordingly the purpose of the hearing today was to determine the claimant’s disability status in respect of her epilepsy.

[3]Having given clear instructions at an earlier case management hearing about what should be included in the bundle for today’s preliminary hearing and its size limit (at paragraph 20 of my previous order) it was unfortunate that the bundle of documents for this hearing extended to 559 pages. I have made observations about this in a separate case management order that do not need to be repeated in this decision. Aside from a number of medical documents being duplicated, most of the excess was made up material that was not relevant to the issues to be determined. Accordingly I explained to the parties that I would only be reading documents that I was directed to by the parties or that I deemed to be relevant to the question of the claimant’s disability.

[4]A large section of the bundle before me (section 2) was devoted to medical and other evidence regarding the claimant’s disabilities. The claimant had produced a document that had been prepared on her behalf at pp327 to 431 described as her impact statement. Cut and pasted into that impact statement throughout was medical evidence and correspondence upon which she relied (some of which was already included by the respondent in the earlier part of section 2) that was not in chronological order. Today’s hearing

[5]The claimant was cross examined by Mr McBride who was sensitive to the claimant’s difficulties when giving evidence. I also made allowances for the claimant and permitted Mrs Packwood to provide the claimant with some assistance when giving her evidence but not to the extent that resulted in the claimant’s evidence becoming something other than her own. Furthermore, Mrs Packwood directed me to particular pages within the claimant’s evidence that she wanted to emphasise as important to this issue.

[6]After hearing oral evidence and submissions from both sides, the parties agreed that I should also read and consider the various occupational health reports that were included in section 2 of the bundle. I indicated that I would reserve Judgment to enable me to reflect on the evidence and consider that additional material.

The issues

[7]Given the concessions and position taken by the respondent since the previous case management preliminary hearing, the issues to be determined today had moved on slightly from when they were identified in my previous case management order. I set them out below.7.1 Did the claimant have a disability as defined in section 6 of the Equality Act 2010 (“EqA”) at the time of the events the claim is about? It is not disputed that the claimant previously had the condition of Rolandic epilepsy. The respondent disputes that she continued to have the impairment at the time she was employed and maintains that the effects of it when she did have the condition were not such that it met the definition of being a past disability for the purposes of s6 EqA

7.2 The Tribunal will decide:7.2.1 Did the claimant still suffer the impairment of Rolandic epilepsy during and up to the termination of her employment?

7.2.2 During the existence of the impairment, did it have a substantial adverse effect on her ability to carry out day-to-day activities?

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

7.2.4 Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?

7.2.5 Were the effects of the impairment long-term? In particular when did they start and:7.2.5.1 did they last at least 12 months, or were they likely to last at least 12 months?

7.2.5.2 if not, were they likely to recur?

The evidence

[8]The claimant was diagnosed with Rolandic epilepsy when she was two and has been seizure free since 2012 (from the age of seven). Page 346 of the claimant’s impact statement deals with the question of when she says the impairment started and stopped. Indeed, she has recited the questions in the issues at paragraphs 15.3 and 15.4 of my previous Case Management Summary at the top of that page. The claimant relies upon extracts from a website explaining the nature and effects of Benign Rolandic Epilepsy. From the claimant’s own evidence it is clear that Rolandic epilepsy is a childhood condition and is the most common epilepsy syndrome in children. It can start anywhere between the ages of 1 to 14 years. Adults are not affected.

[9]It is difficult to follow the claimant’s impact statement because, as noted above, she has cut and pasted extracts of medical evidence into this document and these entries are not in chronological order. The claimant has also included material about conditions that she has not identified as relying on for the purposes of disability.

[10]On page 330 the claimant refers to experiencing febrile convulsions on 7 March 2006, at 13 months old. In August 2007 the claimant was diagnosed with epilepsy at the age of two. Consistent with the medical records, the claimant states on page 369 that she was first prescribed sodium valproate on 12 November 2008 until 7 February 2012. According to her statement, the last grand mal seizure she experienced was on 12 April 2012.

[11]Tonic-clonic seizures are synonymous with grand mal seizures (to which the claimant refers in her evidence). Grand mal seizures result in a loss of consciousness. On page 418 (a report prepared by various medical practitioners at Great Ormond Street Hospital following assessment of the claimant on 29 April 2013), there is a reference to the claimant’s mother describing one example of the claimant suffering “a generalised tonic-clonic seizure with jerking all over”. In contrast, symptoms of partial complex seizures are more akin to day-dreaming and tend to last relatively short periods of time, usually for a matter of minutes although they can impact on an individual’s ability to communicate for however long they last.

[12]There is a letter from Dr Alison Salt, consultant paediatric neurologist at the Great Ormond Street Hospital dated 24 September 2013 on p374 to the claimant’s mother. By the date of this letter the claimant was 8 years old. The purpose of the letter is to address the claimant’s epilepsy. It contains the following extract: “I have read through the information that you kindly sent us about Elise’ epilepsy investigation and management. As Elise has now been seizure free for almost 2 years and off medication, I think she should be managed like any other child, although of course taking consideration of her autism. I do not think she needs a care plan in relation to her previous epilepsy. Her Brownies group might find it useful to have some general guidance in the unlikely event she has another seizure and I attach these. I’m sure they would normally have a contact number for you as well in case they need to contact you in an emergency. I think some of the more complex behaviours that you describe in your email are much more likely to be due to Elise’ autism (i.e. jumping up and down) rather than epilepsy. Also it is true that brief episodes like these are not harmful (even if they did represent brief seizure activity although [sic]) and no particular action needs to be taken. It is only generalised seizures that require immediate management (as in guidance attached) and these are the only events that the Brownies group need to be concerned about. Although as I say being seizure free off medication for so long makes a recurrence of seizures much less likely” [my emphasis added].

[13]On page 319 there is a letter dated 22 February 2021 from Dr Krishnakumar, consultant paediatric neurologist, recording that the claimant had a previous history of epilepsy from 2002 to 2012. Clearly that time span referenced towards the start of the letter is wrong because the claimant was not born until 2005.

[14]The neurologist records that the claimant has had “…no bad headaches for two years but mild headaches 2 to 3 times a week lasting 30 minutes; mild nausea, no vomiting. Some episodes of headaches associated with mild numbness but no definitive weakness. Headaches associated with visual phenomenon – shapes and colours in her eyes-one to 2 times a week.”

[15]Following that appointment, the claimant attended accident and emergency on the 8 March 2022 with a migraine that had caused numbness of her face. The notes on page 324 record that the claimant had previously refused oral tablets at that time but was keen to reconsider.

[16]On p295 there are notes of a meeting on 15 June 2023 with an (unidentified) occupational health doctor, presumably Dr Roddah. Mrs Packwood is asked if the claimant’s epilepsy affects her day-to-day life and she replies “no”. The claimant’s father confirmed that the claimant had not had a seizure since 2012. Indeed there are repeated references throughout the evidence to the fact that the claimant has been seizure free since 2012 and accordingly, I accept this to be the position. Notably Mrs Parkwood tells Dr Roddah that, in respect of her epilepsy, the claimant was discharged in 2019. Mrs Packwood also states that the claimant’s specialist said “years ago” that if the claimant is not having seizures for a year “she can go on to lead a normal life, but it would always be on medical record [sic]”.

[17]When asked about the claimant’s migraines, Mrs Packwood replied that the claimant has only had two in the last four years and that she gets advanced warning. In her oral evidence today, the claimant indicated that she had not had a migraine since December 2023. Accordingly, migraines are a very infrequent occurrence for the claimant.

[18]Consistent with the above, in his report of the same date (15 June 2023) on page 298, presumably to the respondent, Dr Roddah writes: “Hemiplegic migraines, as referenced in the care needs assessment – which causes her stroke like symptoms, but Elise’s parents say this occurs rarely – twice in the past four years and it is proceeded by an aura beforehand”.

[19]Dr Roddah goes on to record: “There is a mention of complex partial seizures occurring when Elise is stressed; her parents say she has not had a full grand mal seizure since 2012 and sometimes gets twitching/lip smacking which is barely noticeable.”

[20]In a medical questionnaire completed by her GP, Dr Patel, on 19 July 2023 on p300, Dr Patel refers in box 2 to the claimant’s epilepsy. Notably he states: “EEG in 2012 suggestive of benign Rolandic epilepsy, seizures controlled on sodium valproate and Lamotrigine but weaned off medications in 2012, no seizure since. Normal brain MRI 2011.”

[21]In the same box, Dr Patel makes reference to “hemiplegic migraines”. Dr Patel says: “major episodes involved weakness on left side and facial weakness. Reports no significant episodes for three years, but now occasional mild headache without other symptoms that resolves quickly with paracetamol”. I interpose here to note that reference to an apparent diagnosis of “hemiplegic migraines” by the GP appears to be responding to something taken from the care needs assessment and is not something that is supported by the specialist medical evidence of Dr Krishnakumar, the claimant’s consultant pediatric neurologist (see above). For the most part, that care needs assessment appears to have been based upon information provided to the assessor by the claimant’s mother. More specifically it is part of a list of asserted “diagnoses” listed on p264.

[22]On page 302, when asked about the claimant’s most recent tonic-clonic seizures, the claimant’s GP indicates that she has had no seizures since 2012. It is apparent that Dr Patel is not satisfied that he is the appropriate person to advise on the suitability of the outdoor activity/high ropes role for the claimant. Because of that, he indicates that he has written to a neurological specialist to obtain a prognosis regarding the potential impact of the claimant’s epilepsy and hemiplegic migraines (p301).

[23]This is followed by a letter from Dr Patel dated 1 November 2023 to the respondent’s HR advisor, Nick Clifford (page 376) informing Mr Clifford that the claimant had been seizure free for 11 years and had not had a migraine for three years. Dr Patel also notes in that letter that the neurologist he had been in touch with, Dr Danute Kucinskienne, had advised: “Thank you for referral [sic]. If the patient is seizure free for 11 years, she is able to undertake a new role” [again, my emphasis]. Notably I have seen no disclosure of any letter from Dr Patel to the neurologist or indeed Dr Danute Kucinskienne’s reply. I assume that the respondent has not been provided with this correspondence either, which is surprising.

[24]Not only do I find that this single sentence remark of Dr Kucinskienne (recited by Dr Patel in his letter) provides no assistance to me in determining the disability issue, I observe that on any objective basis it also appears to be of very little value in terms of assessing the claimant’s suitability for the outdoor activity/high ropes instructor role. It is impossible to know the context in which Dr Kucinskienne apparently offered that one line response to Dr Patel or the extent to which he took in to account all relevant factors including the demands and risks of the (rather than “a”) new role, before responding in that way. Indeed, whilst this is not strictly relevant to the matter in hand today, it is not at all clear whether Dr Kucinskienne knew of, or had taken in to account, the significance of the manifestation of the claimant’s autism and how that might impact on her ability to perform the outdoor activity/high ropes instructor role when giving this bare statement unsupported by any reasoning.

[25]All other medical evidence produced relates to autism (which the respondent has conceded amounts to a disability for the purposes of the EqA) and other conditions that are not relied on for the purposes of disability and is therefore not relevant to my decision.

The relevant law

[26]Under section 6(1) EqA, a person has a disability if she has a physical or mental impairment which has a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.

[27]In essence, there are four separate questions to be determined:27.1 Did the claimant have a mental and/or physical impairment? (the ‘impairment condition’);

27.2 Did the impairment affect the claimant’s ability to carry out normal day to day activities? (the ‘adverse effect condition’);

27.3 Was the adverse condition substantial? (the ‘substantial condition’); and

27.4 Was the adverse condition long term? (the ‘long term’ condition). The above questions should be posed sequentially and not together (Goodwin v Patent Office

[1999] ICR 302

EAT; J v DLA Piper UK LLP

[2010] ICR 1052

EAT). Nevertheless in doing so it is important not to lose perspective of the ‘whole picture’ (Goodwin).

[28]Part 1 of Schedule 1 EqA provides supplementary provisions for determining whether a person has a disability. In particular, under paragraph 2(1), an impairment will be long-term if it has lasted or is likely to last for at least 12 months. In this context “likely” should be interpreted as meaning “could well happen” (Boyle v SCA Packaging Ltd

[2009] UKHL 37

[29]Paragraph 2(2) of Schedule 1 adds: “if an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-today activities, it is to be treated as continuing to have that effect if that effect is likely to recur”

[30]Furthermore, under paragraph 5(1), an impairment is to be treated as having a substantial adverse effect described in s6(1) if measures (which includes medical treatment – para 5(2)) are being taken to treat or correct it, and but for that, it would be likely to have that effect.

[31]At s212 EqA “Substantial” is defined as more than minor or trivial.

[32]When assessing whether an impairment has a substantial adverse effect on day to day activities, it is necessary to consider whether the claimant is affected to a more than minor or trivial extent in carrying out day-to-day activities (which, in the case of an adult, may include work activities) as a result of the impairment in comparison to what the situation would be if the claimant did not have the impairment (Elliott v Dorset County Council

[2021] IRLR 880

and Paterson v Commissioner of Police of the Metropolis

[2007] ICR 1522

[33]In addition, this tribunal is obliged under paragraph 12 of Part 2 of Schedule 1 to take account of the content of “Guidance on matters to be taken into account in determining questions relating to the definition of disability 2011” (here after referred to as “the Guidance”) which came in to force on 1 May 2011, having been issued in accordance with s6(5) of the Act.

[34]The Guidance emphasises at paragraph B9 that it is important to focus upon what a claimant cannot do or can only do with difficulty rather than what a claimant can do.

[35]B12 of the Guidance states that the Act provides that where the impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. The practical effect of this provision is that the impairment should be treated as having the effect that it would have had without the further measures in question.

[36]Paragraph C2 of the Guidance also explains that the cumulative effect of related impairments should be taken into account when determining whether the person has experienced a long-term effect for the purposes of meeting the definition of a disabled person. The substantial adverse effect of an impairment which has developed from, or is likely to develop from another impairment should be taken into account when determining whether the effect has lasted or is likely to last at least 12 months or for the rest of the life of the person affected.

[37]The time at which to assess the disability question and whether any impairment has a long-term effect (the material time) is the date of the alleged discriminatory act (Cruickshank v VAW Motorcast Ltd

[2002] ICR 792

[38]Section 6(4) and paragraph 9 of Schedule 1 EqA extend the protection afforded to those with current disabilities to those who have had a disability in the past. Paragraph 9(2), Sch 1 makes it clear that it does not matter that the disability was experienced at a time prior to the provision of EqA were in force. Discussion - applying the relevant law to the facts

[39]When addressing the issues relevant to determining disability status (identified at the outset above) the real focus of this matter is on the question of whether the claimant’s Rolandic epilepsy had a substantial adverse effect on her ability to carry out day to day activities. By way of reminder, ‘substantial’ is defined in the statute (s212 EqA) and the Guidance has a limited role to play in determining that issue (see the EAT in Elliott). Anything more than minor or trivial will be substantial in terms of adverse effect.

[40]On the basis of the evidence before me I have no hesitation in concluding that the claimant is no longer disabled by reason of Rolandic epilepsy. It is apparent from the various contemporaneous representations made by the claimant’s parents and numerous references by the claimant’s various treating clinicians that the claimant has been seizure free since 2012. Furthermore, it is abundantly clear from Dr Salt’s prognosis in September 2013 that any impact the claimant’s epilepsy had on her day to day activities had ceased by that point and the chance of those effects recurring was not likely then and is not likely now. Need it be said, when determining what is likely, I have in mind the test of ‘could well happen’.

[41]I also note that the claimant ceased to take sodium valproate and Lamotrigine, used to control her epilepsy, in 2012 and in the absence of that medication has remained free of seizures involving loss of consciousness thereafter.

[42]I have given careful thought to the relevance of the claimant’s hemiplegic migraines and whether these had or have any bearing on the issue of whether the claimant’s epilepsy continues to be a disability for the purposes of the EqA. There is nothing in the medical evidence to suggest that the migraines the claimant has suffered are in some way a symptom or linked to the claimant’s epilepsy or connected in any way. Accordingly I am satisfied that they have no bearing on the question of whether the claimant’s Rolandic epilepsy is an existing disability for the purposes of EqA. On the contrary, the evidence demonstrates that they are independent of any condition of epilepsy. It has already been established that the claimant does not rely on migraines as a stand-alone disability. As such I am doubtful that I need to address the position relating to them. Nevertheless, for completeness and in case I am mistaken as to their relevance I have reached the following conclusions from the evidence.

[43]The claimant says in her impact statement that she was diagnosed with hemiplegic migraines on 16 July 2019 (p334). The medical evidence does not support this assertion. The letter from Dr Krishnakumar, the claimant’s neurologist, of the same date refers to one episode of an acute headache in April during football training. At the outset of her letter, Dr Krishnakumar lists a total of six “Problems” the first of which is recorded as “1. Headaches ?Migraine”. There is clearly a query about whether the claimant was suffering migraines and no reference at all to there being a problem of hemiplegic migraines. Furthermore, having had a follow up in 2021, Dr Krishnakumar, records that the claimant had had no bad headaches for two years (i.e. since 2019 when she first saw the claimant about this problem) but mild headaches two to three times a week lasting about 30 minutes.

[44]On the basis of this evidence I find that although the claimant had a problem of an acute headache in April 2019, thereafter she was suffering mild headaches only. There is no evidence before me demonstrating that these milder headaches had a substantial adverse effect on the claimant’s day to day activities. Even if it could be said that the earlier problem of an acute headache referred to in April 2019 did have a substantial adverse effect on her day to day activities, in accordance with Dr Krishnakumar’s assessment in 2021 it is evident that this was not long term as it did not last more than twelve months and amounted to nothing more than a short term condition. Furthermore, the claimant’s GP recorded in July 2023 that the claimant had suffered “no significant episodes for three years but now occasional mild headache without other symptoms that resolves quickly with paracetamol.” It is not for this tribunal to look behind that evidence.

[45]All of this is consistent with the claimant’s mother’s insistence in June 2023 that the claimant had only had two migraines over a period of four years. Presumably the second incident of a migraine to which the claimant’s mother is referring is the one the claimant suffered on or around 8 March 2022. As identified above, there is, of course, the report sent to her GP’s surgery of the claimant attending Bedford Accident and Emergency on 8 March 2022 with a migraine. The claimant’s GP has disregarded this in his assessment of her migraines and therefore I conclude from the evidence that this was not considered to be relevant.

[46]The claimant said in evidence that she had a migraine in December 2023 but she gave no indication of this impacting on her day to day activities. In any event, there is no record of this in her medical evidence nor is there any medical evidence to suggest that this was anything other than a one off ailment unconnected to anything previously encountered. As I have already stated, there is no evidence to suggest that the acute headache (or migraine) in 2019 was linked to a further migraine in 2022 and a subsequent one said to have occurred in 2023.

[47]On the evidence before me I find that these sporadic migraines (three in the space of five years) were exactly that – sporadic and infrequent and nothing other than one off short term episodes of illness that were not part of any continuing underlying condition. There is no evidence to support any conclusion to the contrary. Accordingly these are of no relevance either on their own or in relation to the claimant’s Rolandic epilepsy. Past disability (s6(4) and para 9, Sch 1 EqA)

[48]Despite the fact that the claimant was not disabled by reason of Rolandic epilepsy from 2013 onwards, that is not the end of the matter. It is still necessary to determine whether this impairment did amount to a disability previously so as to be a past disability for the purposes of s6(4) and para 9 of Schedule 1 EqA .

[49]I see the force of the submissions on behalf of the respondent that there is not on the face of it a great deal in the way of evidence that addresses the question of how the claimant’s Rolandic epilepsy impacted upon her ability to carry out day to day activities when she was suffering the symptoms. To that extent it is not entirely surprising that the respondent seeks a ruling on this issue from the tribunal and resists any suggestion that the claimant met the definition. Nevertheless, whilst there may be little evidence, that is not to say there is no evidence at all as to the impact on the claimant’s ability to carry out day to day activities, and what does exist is significant.

[50]The claimant has produced medical evidence that she was diagnosed with epilepsy in August 2007 (at the age of two) and that she suffered grand mal seizures until 2012. That is important evidence that cannot be ignored. Indeed, from this there is no doubt that the claimant suffered seizures that caused her to lose consciousness until the age of seven years old during her formative childhood years. It stands to reason that she was also at risk of losing consciousness at any unforeseen time.

[51]When considering the question of whether the effects of an impairment have a substantial and long term adverse effect on her ability to carry out day to day activities in accordance with Elliott and Paterson it is necessary to look at how it impacts upon her abilities taking account of how things might be if she did not have the impairment. It is not a direct comparison with the population at large.

[52]I am also mindful of the fact that day-to-day activities for a child of primary school age are very different to the day to day activities of an adult. Whilst it could be said that the risk of, and actually, losing consciousness at unforeseen times is likely to have a more serious impact on an adult who has greater demands and responsibilities than a child (e.g being unable to drive or operate dangerous machinery) that is not the comparison I am required to make.

[53]It only requires the application of common sense to appreciate that she was in the formative years of her childhood when suffering the effects of this impairment and would have been learning the basics of life and play at this time. Her day to day activities would undoubtedly involve being able to engage in activities with other children in groups such as Brownies as evidenced in the correspondence of Dr Alison Salt on p374. As that letter of 24 September 2013 refers, it is only when she is free of seizures that she is able to be “managed like any other child”. Need it be said, for as long as she was at risk of seizures she was at risk of serious harm or potential death if she participated in usual childhood activities such as swimming, cycling, climbing, and performing. This is reflected in the fact that even after being seizure free, Dr Salt talks about the possibility of needing to be contacted Mrs Packwood in the event of an emergency.

[54]There can be no doubt that the risk of losing consciousness would have created difficulty going outdoors unaccompanied. Her ability to engage with other children would have been significantly impeded when she was experiencing a seizure. There can be no doubt that she would have been excluded from numerous activities or at the very least restricted in terms of her ability to participate simply by reason of the fact that she was at risk of harm to herself and possibly others because of this condition.

[55]Evidently the claimant was having these seizures despite being on sodium valproate to control her epilepsy. Whilst I am cautious about drawing any conclusions of the deduced effect in the absence of direct medical evidence dealing with the issue, it must be right that the claimant’s condition and the impact of her epilepsy was only likely to be exacerbated in the absence of that medication until such time as it became apparent that the seizures had ceased.

Conclusion

[56]For all the above reasons I am satisfied that the adverse impact the claimant’s impairment of epilepsy had on her day to day activities arising from the loss of consciousness and the risk of this happening (that could only have been worse in the absence of medication) was more than minor or trivial and thus substantial in accordance with section 6 EqA. Accordingly I find that the claimant was disabled for the purposes of the EqA by reason of her past disability of Rolandic epilepsy.

[57]We noted several things when Mrs Packwood questioned the Claimant. Firstly, her questions were very quick, and she did not need to check the Claimant’s understanding nor rely on the use of pictures, nor to break things down into three or four words at a time contrary to some of the medical evidence in the hearing bundle. Moreover, the Claimant did not have any difficulty at all understanding those questions, giving her answers equally quickly and thoroughly, and she did not ask for any explanation of them.

[58]The Claimant’s answers were polished and fluent as the Respondent has described. The Claimant also gave the clear impression that she was either reading her answers from a document in front of her, or the questions had been rehearsed in advance. The Claimant denied this at the time when the Respondent raised concerns, however her subsequent answers were immediate and articulate which continued to give the impression of being rehearsed and this was entirely inconsistent with the significant level of impairment described by Mrs Packwood in the Care Act Assessment in the Respondent’s hearing bundle. This was also inconsistent with how Mrs Packwood described the Claimant’s impairments immediately before the hearing when she applied for reasonable adjustments. In any event the Respondent objected to the line of questioning as it was going back to the beginning of the chronology, and it was dealing with matters which had already been struck out by Judge Milner-Moore such as the Claimant’s induction.

[59]I allowed Mrs Packwood to continue to question the Claimant and I encouraged her to focus on the list of issues and the claims which had not been struck out and I indicated that we had agreed, given the failure to produce a witness statement, that she could question the Claimant on the matters arising out of her answers to the Respondent’s questions. We sought to continue again however the Respondent raised further concerns as the Claimant was being asked leading questions and these were again about matters which had been struck out.

[60]I reminded the parties that the Tribunal could regulate its own procedure, we would allow the questions to continue but they should not be leading, and they should address the existing issues to be decided in the case. I indicated that I would have to impose a time limit of just over an hour for the questions from Mrs Packwood as it was intended to be limited to her own re-examination, we appeared to be hearing brand new evidence, and we must be fair to both parties. My other concern was the number of witnesses for the Respondent to be questioned by Mrs Packwood. If our time was used up questioning the Claimant on irrelevant matters, it would use up the time available for Mrs Packwood to put the Claimant’s case to the

[61]Mrs Packwood’s questions ended at 1:33pm at which time Ms Hodgetts cross examined the Claimant who confirmed that the claim was being pursued with her full understanding; she understood the statements that had been made on her behalf; and she was saying that those statements were true. The re-examination was very brief, it lasted in the region of sixteen minutes and Ms Hodgetts asked questions in a clear manner which the Claimant understood. I then allowed Mrs Packwood to undertake reexamination of the Claimant however I had to intervene as her first question was both unclear and leading and I observed the Claimant was visibly upset. I asked the Claimant if she wished to continue to which Mrs Packwood said she would like a break, but that I would not allow her to have one. I asked why Mrs Packwood thought that and she explained it was because we were running out of time. I nevertheless directed we would have a break at 1:52pm.

[62]We returned ten minutes later at which time Mrs Packwood told me that the Claimant was being sick in the bathroom. I asked Mrs Packwood to let me know how they wished to proceed, and she declined to speak to the Claimant off camera as she said that she had been accused of speaking to the Claimant. When I asked who she says accused her of that, Mrs Packwood told me it was the Respondent, however I said that was not the case, to which Mrs Packwood told me they had been accused of being untruthful. Ms Hodgetts helpfully agreed that Mrs Packwood could speak to the Claimant off camera, and we then had a further fifteen minute break.

[63]Upon our return Mrs Packwood said the Claimant was still upset and Ms Hodgetts suggested we release the Claimant and interpose her later if she still wished to give evidence. I asked Mrs Packwood’s thoughts on that, but she would not answer, and when I again asked her she told me she could not make a decision right now. The Claimant then came back on camera and told me she wanted to speak but not right now. I then released the Claimant from oath and directed she could give evidence later if she wished. I then encouraged Mrs Packwood to have another break so that she could look after the Claimant.

[64]We then returned twelve minutes later, and I asked Mrs Packwood if she was able to continue to which she said that the Claimant did not wish to proceed but was worried it would cause problems for the Court. Ms Hodgetts indicated that the Claimant could authorise Mrs Packwood to act for her for the rest of the day in her absence, and when I put this to the Claimant she told me she did not know what she wanted to do.

[65]I therefore proposed adjourning for the afternoon, however the Respondent objected reminding us of the failure to produce witness statements; the conduct of the hearing thus far; the adjustments which had been sought late; the manner in which Mrs Packwood had effectively been allowed to elicit evidence in chief from the Claimant; it was impossible to believe what the Claimant and Mrs Packwood were saying; and one of the Respondent’s witnesses, Ms Rushbrook, no longer worked for the Respondent and had made herself available for the hearing the day before and today; the impact of further delay; and both sides are entitled to a fair hearing.

[66]I again asked Mrs Packwood what she or the Claimant wished to do, and she informed me the Claimant could not continue today, she wished to go out for a walk and to get fresh air and for Mrs Packwood to go with her.

[67]We then had a further break of ten minutes for the panel to deliberate and upon our return at 2:55pm we informed the parties that we would adjourn for the day given the Claimant’s upset, but we would start the following day at 9:30am to make up time. I suggested that I could provide Ms Rushbrook with a witness order if that would assist in her securing her attendance the following day, however Ms Hodgetts informed me it was not necessary.

[68]At the end of the hearing Ms Hodgetts informed the Tribunal and Mrs Packwood that if proceedings were withdrawn over night the Respondent would make the appropriate application, and upon my clarification Ms Hodgetts confirmed the Respondent was referring to costs. I asked Mrs Packwood if she heard it to which she replied yes, and I asked if she had any questions to which she replied no. We adjourned at 3pm. Hearing day five – 9 May 2025

[69]Day five of the hearing commenced shortly after 9:30am on 9 May 2025 at which time Ms Rushbrook (former HR Manager) was cross examined by Mrs Packwood. Mrs Packwood used the Claimant’s hearing bundle, however, as will be addressed later, that caused significant difficulties for the witnesses as the contents were unreliable.

[70]Mrs Packwood again became visibly distressed by 10:20am after the Respondent raised concerns about the line of questioning as Mrs Packwood was straying well beyond the list of issues and Ms Hodgetts told me that the Respondent was not going to object to the questions but that Ms Rushbrook’s evidence needed to be completed that day; the Tribunal had given ample guidance on the list of issues; and that she was simply reducing the time available to ask relevant questions. I explained to Mrs Packwood she was not being criticised, I needed to make sure she has enough time available to use for relevant questions on the issues to be decided in the case, and I offered to help her structure questions if that would assist. I asked Mrs Packwood if she would like a break, but she did not answer therefore I adjourned for a further ten minutes.

[71]Upon our return I asked Mrs Packwood if she wished to continue to which she said she had no choice. I asked the Claimant what she wished to do, and she told me she wished to carry on. The cross examination of Ms Rushbrook continued, however many of the questions concerned an alleged lack of support at the Claimant’s induction5 which was no longer a matter for us to decide, and it was unnecessary to question the witness about. I repeated my offer to help structure questions, and we had a further break for Mrs Packwood who said she thought that I was exasperated with her, however I again explained the importance of focussing her questions on the issues to be decided in the case, so she does not use up valuable time on the Claimant’s case.

[72]Given some of the questions being put to Ms Rushbrook by Mrs Packwood, it was necessary for me to clarify what adjustments Mrs Packwood said the Respondent ought to have made. Mrs Packwood confirmed our understanding, and that of the Respondent, that she was not saying that returning to her role in the kitchen would have been an adjustment under any circumstances, and she would not have returned to that role in any event. It was clear that Mrs Packwood was not seeking to depart from the agreed list of issues but understood the claims which had been permitted to proceed.

[73]We completed Ms Rushbrook’s evidence at 3:15pm and whereas the Respondent was keen to make progress we adjourned to start afresh on at 9:30am on 12 May 2025 as it had been a long day and we were mindful of Mrs Packwood’s impairments. I provided Mrs Packwood with guidance on closing submissions and we discussed witness timetabling for the following week. Hearing day six – 12 May 2025

[74]At the start of the hearing, I reminded the Claimant that she could still give oral evidence if she wished. We heard evidence from Leanne Relf (Resourcing Manager) followed by Lee Barrowcliffe (Group Outdoor Manager), and Sarah Johnson (Food and Beverage Kitchen Manager, Claimant’s former line manager). At around 11:30am it was necessary to have a break as the Claimant became upset during Ms Johnson’s evidence, and I reminded her that she did not have to observe if she did not wish to. That afternoon we heard evidence from Daniel Robb (Food and Beverage Assistant Kitchen Manager), followed by Nick Clifford (HR Advisor), and then Suzanne Congerton (Deputy HR Manager). That afternoon at 2:12pm I asked Mrs Packwood again if the Claimant wished to continue with her oral evidence to which she said she did not. Hearing day seven – 13 May 2025

[75]We started hearing day seven at 9:30am and heard evidence form Wayne Hawkins (Leisure Service Line Manager), followed by Alan Peters (Deputy Village Director), and then John Sturzaker (Head of Food and Beverage and Retail Division). The witness evidence finished at 12:55pm and we agreed to hear closing submissions from the Respondent at 3:30pm which were also provided in writing. We agreed that Mrs Packwood did not have to give oral closing submissions, and she would have until 10am the following day 5 Issue 5.2.2 which Judge Milner-Moore had previously refused permission to include as an amendment on 28 January 2025. to provide them in writing instead, and the Respondent would have until 12pm if it wished to respond. Observations on evidence and conduct of proceedings

[76]It has been difficult to gain a full understanding of the extent of the Claimant’s impairments, and the Claimant’s evidence generally, as the Claimant and Mrs Packwood failed to provide witness statements despite the directions and repeated opportunities to do so. We record at the outset that this has made our task much more difficult. Mrs Packwood was able to draft very long letters using legal terminology and able to produce a very detailed schedule of loss and lengthy closing submissions. There is no acceptable reason for not having produced witness statements and this caused prejudice to the Tribunal and to the Respondent. It was unreasonable not to have done so.

Conclusions

[77]Moreover, all the voluminous correspondence and contemporaneous documentation provided to us, produced on the Claimant’s behalf, was prepared by Mrs Packwood, who has provided different and conflicting accounts to different people about the level of impairment. This includes leaving out key health information from health questionnaires, and it also extends to leaving out large volumes of relevant information from a Care Act Assessment included in the Claimant’s hearing bundle. That information was included fully in the Respondent’s bundle and presented a different and fuller picture. Mrs Packwood’s explanation has been that she did not consider the information to be relevant. That assertion (amongst others to which we will refer) from Mrs Packwood is inaccurate and has damaged the credibility and reliability of Mrs Packwood’s evidence in these proceedings. This has caused us to treat her oral evidence with a great deal of caution, and we have found her to her to be an unreliable witness. By contrast, we have found all the Respondent’s witnesses to have given honest, reliable and credible testimony to us. Where there has been a dispute of fact, we have preferred the account of the Respondent due to our serious concerns about the veracity of Mrs Packwood’s evidence.

[78]We also had serious concerns about what is the true level of the Claimant’s impairments. By way of example, a Care Act Assessment from March 2023 is based upon things reported to Social Services by Mr and Mrs Packwood. They said that the Claimant could only understand three or four words at a time and the Claimant finds it better to understand through pictures. A similar assertion was made the week before the Tribunal hearing where Mrs Packwood sought adjustments for the Claimant. However, we observed a very different picture in the tribunal hearing as the Claimant gave oral evidence which was quite clearly rehearsed. Mrs Packwood spoke quickly asking the Claimant questions, she did not rely on pictures, she did not need to explain the questions, and the Claimant had no trouble understanding and answering them, speaking equally quickly, fluently and polished as the Respondent has said.

[79]We recognise that a diagnosis of autism by its very nature will mean that there is some level of impairment. We are of course aware that someone’s impairments may affect them differently in different situations, however given that many people find a court or tribunal hearing to be more stressful than their everyday life, we found the Claimant’s eloquence and confidence and ability to understand those questions was inconsistent with the descriptions previously given by Mrs Packwood. We were left with the clear conclusion that the level of impairment described by Mr and Mrs Packwood in the Care Act Assessment was unreliable.

[80]Mrs Packwood has also alleged that the Respondent caused the Claimant to self-harm on 24 January 2023 and that she experienced suicidal idealisation. This is disputed by the Respondent. Mrs Packwood’s arguments appeared to be inconsistent with the contemporaneous documents, for example the GP records from that time make no mention of this even though the Claimant was seeing her GP regularly. Moreover, an Occupational Health referral on 26 January makes no reference to it. A Care Act Assessment from March 2023, just two months later, refers to selfharm but records it as having arisen from something to do with school or at home, and the Assessment says there is no reference to suicidal thoughts. Our view is that had this occurred as Mrs Packwood now alleges, then the Claimant’s parents would have sought medical intervention at that time however there was no evidence provided to us that they had done so.

[81]The Respondent argued that Mrs Packwood gives a different account on the Claimant’s level of impairments to different people depending on the outcome she is seeking. It was abundantly clear to us, having heard all the oral evidence, and having read the relevant documents, that the Respondent is correct. It is impossible for us to have any confidence that what Mrs Packwood has said about the Claimant’s impairments is accurate. This is of serious concern to us in a case for disability discrimination where the nature and level of impairment lies at the crux of many of our considerations, particularly so when tasked with identifying if the Claimant was put to a substantial disadvantage and also the something arising from disability.

[82]We also record early on that Mrs Packwood’s approach to disclosure has been unacceptable as she has given assurances to previous judges that she had complied with her disclosure obligations; however we have established that is not the case with relevant material, particularly medical evidence, being held back.

[83]On 28 January 2025 Judge Milner-Moore made an order for specific disclosure against the Claimant at paragraph 11 of the case management orders. The order was: “For the claimant, the documents provided should include any documents which evidence the impacts of the claimant’s disabilities during the relevant period (i.e. between October 2022 and March 2024) including, for example, documents submitted to external agencies in support of claims to receive social security payments or allowances.”

[84]The Respondent sought disclosure of the Claimant’s application for Personal Independence Payments, and the application for a Carer’s Allowance by Mrs Packwood for the Claimant. That information was not provided. Those documents would have helped us to understand what was said about the Claimant’s impairments at that time. Mrs Packwood told us that information was not hers to disclose. The Claimant, through Mrs Packwood, is in breach of that case management order. It was unreasonable for them not to comply. The failure to do so, given the relevance of those documents, has caused us to draw a negative inference about the reliability and credibility of the evidence of both the Claimant and Mrs Packwood. It is worth recording that compliance with Tribunal directions is mandatory not optional, and the deliberate refusal to comply is not merely unreasonable, it also shows disrespect to the Tribunal and the Tribunal process.

[85]Similarly Mrs Packwood failed to agree a hearing bundle with the Respondent and produced her own which consisted of extracts of documents edited and pasted together by her, many of which were emails, WhatsApp messages, and medical documents, leaving out key information and presented in a way which could have given us a misleading account were it not for the Respondent drawing this to our attention. Mrs Packwood rewrote some of the contemporaneous emails in the bundle, and our attention was drawn to one obvious example where in doing so she had inadvertently corrected a spelling mistake by a doctor – the word compiled had been replaced with complied.

[86]Mrs Packwood’s explanation was that she tried to copy and paste emails and when that didn’t work, she had to rewrite them. We exercised caution with that explanation as Mrs Packwood did not tell us beforehand that is what she had done, although it was abundantly clear that messages had been cut and pasted incomplete. For our deliberations we have therefore ignored the documents in the Claimant’s bundle, they are unreliable, and we have instead used the fuller versions in the Respondent bundle. Nevertheless, using two different bundles in the hearing was disruptive, it slowed down the hearing and it confused witnesses, and again, this was unreasonable. Findings of fact

[87]From the information and evidence before the Tribunal it made the following findings of fact. We made our findings of fact on the balance of probabilities taking into account all of the evidence, both documentary and oral, which was admitted at the hearing. We do not set out in this judgment all the evidence which we heard but only our principal findings of fact, those necessary to enable us to reach conclusions on the issues to be decided.

[88]Where it was necessary to resolve conflicting factual accounts, we have done so by making a judgment about the credibility or otherwise of the witnesses we have heard based upon their overall consistency and the consistency of accounts given on different occasions when set against any contemporaneous documents. We have not referred to every document we read or were directed or taken to in the findings below, but that does not mean they were not considered.

[89]The Respondent is an operator of holiday villages. The Claimant was employed at the Woburn site which includes restaurants and sports facilities, and it is spread over a large area. There is also a diner solely for the use of staff, the food for which is prepared in a Central Processing Unit based at the diner which also provides food for corporate events or occasions such as New Years Eve. Over 1700 people work at the site where the Claimant was employed.

[90]The Claimant attended an open day at the Respondent on 24 September 2022 and then she was interviewed 1 October 2022 by Sarah Johnson, Kitchen Manager. Lianne Relf the Resourcing Manager was also present. Mrs Packwood was allowed to attend the interview as an adjustment for the Claimant. During the interview the Claimant told Ms Johnson that she has ADHD and Ms Johnson said she had personal experience dealing with colleagues with additional needs and spoke about the support she had provided to them in the past. Whereas Ms Johnson and Ms Relf sought to engage with the Claimant, Mrs Packwood would take over and answer questions for her even though the Claimant appeared to understand the questions and was able to speak for herself.

[91]The Claimant was successful at interview and started employment on 6 October 2022. She was employed by a contract of employment dated 5 October 2022. Her job title was kitchen porter, and she was managed by Ms Johnson, who in turn was managed by John Sturzaker the Food and Beverage Line Manager. The Claimant’s role involved cleaning of pots, pans, crockery and glassware, assisting the kitchen team in the cleaning of the kitchen and wash up areas including the disposal of kitchen waste and deep cleaning and supporting the kitchen team with deliveries and food preparation. The Claimant was required to fill the three staff vending machines on site. The CPU was a far less pressurised environment as compared with other kitchens as it serves staff only and as such there is not a restaurant full of people waiting for orders.

[92]The Claimant was employed to work 64 hours every 4-week period and she worked weekends.

[93]The Claimant has alleged that she was told that she would always work alongside Ms Johnson. This is denied by Ms Johnson and Ms Relf who was also present. We reject the Claimant’s allegation because in a WhatsApp message from Mrs Packwood to Ms Johnson on 10 December 2022 she said, “when you’re in she’s okay, I think she built up that bond during interviews and assumed you’d be there when she was.” Moreover, it appeared to us as wholly improbable and unrealistic that a manager would have made such a promise, given that they will have annual leave, possibly some sickness absence, and other work commitments.

[94]The Claimant has previously alleged that she was made to perform a kitchen porter role when employed as a food preparation assistant. This allegation was previously struck out, but Mrs Packwood persists in saying it, however we have found it to be untrue. The contractual documentation is clear that the role was of kitchen porter. Mrs Packwood says the Claimant was told that she would only be employed as kitchen porter for three weeks before moving to do food preparation. This is denied by Ms Johnson and Ms Relf, and again we reject that as the job offer form and the contract make no such reference and instead record that this was a permanent role; there is no reference to it being fixed term; and the email from Mrs Packwood of 30 September 2022 states “Elise is keen on pursuing the kitchen steward role, if only temporarily, we understand it is predominantly weekend work.” This did not suggest that a food preparation role had been promised.

[95]In addition, a WhatsApp message on 12 November from Mrs Packwood to Ms Johnson asked if she was still keeping her in mind for moving over to the kitchen. We further note the risk assessment completed with the Claimant which refers to the kitchen steward role. The Care Act Assessment also records that the Claimant cannot cook for herself, she may cook foods with her sister however she will not use the stove to boil anything or the oven to cook anything and is uncomfortable with the heat given off and worries about the risk of fire which can be disproportionate. We therefore find it unlikely that even the Claimant thought that she had applied for such a role.

[96]Whereas the complaint was previously struck out, Mrs Packwood continues to allege that the Respondent failed to allow her to attend the Claimant’s induction, however this is inaccurate. Mrs Packwood was notified that the Claimant would be given a one-to-one induction on 6 October, she then asked if there would be much notetaking or written work involved as she said she was “just wondering whether I will need to attend or not”. The response from Ms Relf was that there was no notetaking or lots of written work needed on inductions, and unless it was for communication reasons she would not be able to attend the induction as it is for colleagues only, and that she would be on hand if the Claimant needed any support, to which Mrs Packwood replied that was brilliant.

[97]We noted further that Mrs Packwood had said about the Claimant that “her autism makes her very focused, she’s either black or white, if she has shown something either task or picture, she has it and will not deviate from it. I’m sure doing this alone will build on her confidence, but we’re not far away if needed.”

[98]Given the Claimant’s age, a risk assessment was completed by Daniel Robb the Assistant Kitchen Manager on 6 October.

[99]The Claimant and Ms Johnson initially had a good and positive working relationship, and a significant amount of support was provided to the Claimant as she learned her role. The Claimant was new to the world of work, and she struggled to keep up with the pace in her role, however it is clear from the contemporaneous documents in the bundle that Ms Johnson was very supportive of her. Uniform and safety boots

[100]The Respondent requires staff working in the diner to wear a uniform it provides for hygiene reasons, and safety boots for those in the kitchen. As regards the uniform, this is provided when someone joins, it is available at the start of the day and left behind at the end of the shift to be laundered, and laundry is collected twice a week.

[101]The Claimant has alleged that she was not provided with a uniform or safety boots. A photograph in the hearing bundle shows the Claimant wearing a work uniform at Christmas time. It is therefore clear that at least by December 2022 the Claimant was provided with a work uniform.

[102]Mrs Packwood then sought to change the allegation to one that the uniform was unsuitable as it was the wrong size. The Claimant’s oral evidence to us was that she was wearing someone else’s uniform. There is correspondence within the bundle from Mrs Packwood to Ms Johnson on 12 November 2022 which includes “Hey, Elise was told AM that she needs to check in after getting changed but there are probs with her uniform/shoes…”. No further details were included.

[103]On 17 January 2023 there is an email from Mrs Packwood to Ms Maslin in HR which states she was experiencing difficulty with:  Own uniform  Safety shoes (consideration to be given to the special shoes she wears for medical need)  Work that requires standing up on top of the cookers to clean the grills on the ceiling (without the shoes or the risk of baggy oversized uniform borrowed from someone else)

[104]Similar comments were sent after this date however by that time the Claimant had gone off sick and indicated her intention not to return to the role.

[105]As regards safety shoes, this issue was raised by Mrs Packwood to Ms Johnson on 25 November 2022 where the email records her as saying that the Claimant had some swelling at the front of her right ankle and the doctor had diagnosed tendonitis and she had been advised to avoid both physical activity and standing for long periods, which could last between three days and two weeks. Mrs Packwood said the Claimant usually wore boots in work and she asked if she could wear trainers to which Ms Johnson said it would be best to take the time off as it would not be safe to be in the kitchen without safety shoes.

[106]We should note that Mrs Packwood was in error. The GP had diagnosed the Claimant on 25 November 2022 as having suffered from tenosynovitis which is a different condition, the cause of which was not established before us.

[107]We also record that the message from Mrs Packwood did not suggest to us that the Claimant had been provided with safety shoes as the Respondent argues, rather it suggests that the Claimant was wearing her own boots at work in the absence of safety shoes. The Respondent has been unable to supply us with corroborative evidence beyond witness oral evidence, that the Claimant was provided with safety shoes. Due the passage of time, and absence of documents, Ms Johnson and Mr Robb could not recall specifically when the safety shoes were provided although their evidence was that they had been provided at some point.

[108]On 21 December 2022 Mrs Packwood messaged to ask if Ms Johnson had the Claimant’s shoe size. By December 2022 the Claimant had still not been provided with safety shoes for the kitchen. The Claimant went off sick on 22 January 2023 and never returned to work, and during a discussion about a return to work on 10 May 2023 the Claimant was notified that the correct uniform was available to her and that due to an urgent requirement safety footwear had been allocated to another colleague, but the Respondent was committed to providing this for the Claimant. The implication is therefore the safety shoes had been obtained most likely between the Claimant going sick on 22 January 2022 and the meeting in May 2023, however they needed to be ordered again for her.

[109]As to what disadvantage these two matters caused the Claimant due to her two disabilities, the contemporaneous correspondence from Mrs Packwood complained that these oversized clothes could put the Claimant to risk if she worked at heights, and we understand that related to cleaning grills or vents which we find is not a task the Claimant was required to perform given her age. None of the contemporaneous documents record any suggested disadvantage or link between the lack of provision of a fitting uniform and safety shoes and the Claimant’s disabilities. Level of communications

[110]Quite soon after the Claimant started her role Mrs Packwood would contact Ms Johnson directly to discuss the Claimant’s work, this contact soon became more frequent and very lengthy. This contact was by telephone and WhatsApp. Whereas Ms Johnson provided prompt and professional replies to Mrs Packwood, it was clear that this was taking up a lot of her time, including when she was not working, when she was on annual leave, and sometimes late at night. Some of the messages from Mrs Packwood were at odds with how things had gone during the day. For example one message string concerned how much the Claimant was spending on her lunch and where she was eating it, as staff meals are heavily discounted to £2 in the staff diner whereas Mrs Packwood claimed the Claimant had paid £4 and did not know where the diner was, however Ms Johnson found this a strange comment given that the Claimant was working in the diner.

[111]Mrs Packwood also messaged about other matters including reminding the Claimant to take breaks as she would forget to do so, and would keep working through breaks and at the end of the day. Ms Johson made arrangements to remind the Claimant to do so.

[112]In addition, Ms Johnson received two tranches of messages from Mrs Packwood which had nothing to do with the Claimant or her work. The first related to five puppies which Mrs Packwood had apparently bred and was advertising for sale at £1,000 each. This was not solicited by nor responded to by Ms Johnson.

[113]The second tranche also contained photos and messages about a dog that had died. One of the photos was of the Claimant’s father topless in bed holding a dog. This caused Ms Johnson to feel uncomfortable and to report the matter to Human Resources. Ms Maslin in HR raised this with Mrs Packwood on 17 January 2023 who also mentioned the volume of messages, and she asked Mrs Packwood to use email instead and the work number. Mrs Packwood expressed annoyance about this at the time and clearly remains annoyed. The Claimant went sick five days later on 22 January and never returned to work.

[114]Mrs Packwood’s oral evidence on this matter was inconsistent as she suggested that she had not intended to send the message to Ms Johnson but then she told us she not unintentionally sent it to her either, and that her phone sent it to her as part of a group chat, but it was useful to have sent it to her so she would understand why the Claimant would be upset about the loss of her dog. This made no sense at all and was contrary to Mrs Packwood’s email to the Respondent of 17 January 2023 where she said this was a mistake. This inconsistency, as to whether it was sent intentionally or unintentionally, further damaged Mrs Packwood’s credibility before us and she gave the impression of making up answers on the spot. Offloading work

[115]The Claimant worked weekends in the CPU. There was some sort of board or task list setting out the duties which needed to be completed. Three members of staff worked the weekend shift, this included the person in charge which alternated between Ms Johnson, Mr Robb and whoever else was senior enough to be placed in charge.

[116]The Claimant was not completing the full range of duties, performing in the region of about 50% of the work she needed to do, mainly due to her speed. The Claimant was gradually increasing her pace and was learning, and the Respondent did not challenge her about her performance. Ms Johnson was very supportive of the Claimant and was content for her to develop at her own pace and afforded her time to do so.

[117]One of the tasks involved cleaning vents above the fryers. This would involve the member of staff climbing up to remove them, bringing them down and cleaning them. Due to the Claimant’s age at the time, she was not permitted to work at height, she did not have to climb up to remove the vents, although it was within her role to clean them but only when she would be old enough to do so.

[118]The Claimant has alleged that the Respondent has allowed a colleague named Harry to offload his work onto the Claimant. Harry was employed in the same role as the Claimant and was more experienced but younger than her. We were only provided with two instances relied upon. The first concerned a message of 5 November 2022 from Mrs Packwood to Ms Johnson where she said that Harry had the Claimant on the machines in both sections working on the vents above the fryers and that she does not mind doing it, but a colleague told her that she wasn’t meant to be doing it and now she was worried about it.

[119]The evidence of Ms Johnson, which we accept, is that cleaning the vents once removed was part of the kitchen porter role, and as Harry is tall he would take the vents down without the use of a ladder unlike most people who work there. Moreover, Ms Johnson said that as the Claimant was under 18 at the time she would not have been allowed to work at height in any event.

[120]We find that it is most likely that Harry reached up and took down the vents as he is required to do, and passed them to the Claimant to clean, as she was required to do. It is entirely normal for colleagues at the same grade to work together as a team in this way.

[121]We were referred to a second alleged example occurring after New Year’s Eve 2022/2023 whereby Ms Johnson had asked Harry to clean the 400 platters from the celebration which had to be done by hand, and she asked him to tell the Claimant to do the normal washing. The Claimant, through Mrs Packwood, complained that Harry had given the Claimant some of his work and that he had done it before. Ms Johnson spoke to Harry who said he had asked the Claimant to shut the dishwasher down as he was doing the silver plates. Ms Johnson accepted this explanation and found no attempt by Harry to offload his work and that it was simply a misunderstanding. Again, we do not find that Harry was offloading his work onto the Claimant, he was doing as he was told which was to clean the platters and to ask the Claimant to do the normal washing.

[122]Mrs Packwood also raised issues about Harry using his phone at work and playing with a ball with colleagues, but we observed no pattern of Harry offloading his work onto the Claimant, and no corroborating evidence that the Respondent permitted such a practice either. It is our finding that Ms Johnson listened to Mrs Packwood’s concerns and acted upon them. We found Ms Johnson to be a kind and supportive manager of the Claimant, and she had experience of managing other staff with impairments who had similar needs as the Claimant. Vending machines / bicycle and trailer

[123]The Respondent had three vending machines for staff to use - one was located in the staff room, one was located in the staff diner, and one was located in housekeeping further away on the site. It was part of the kitchen porter role to refill these. The Respondent provided a bicycle and trailer to transport the items to the vending machine. The bicycle would change weekly as it would be provided by the Respondent’s bicycle shop, it was a universal bike which means that it was unisex.

[124]The lack of witness statement from the Claimant has made this complaint rather difficult to understand. Prior to the Claimant’s sickness absence Mrs Packwood suggested in her messages of 5 and 18 November and 10 December 2022 that the Claimant was struggling with the weight of the bicycle to which Ms Johnson replied that other staff could assist or take over with the task to which Mrs Packwood reassured her that the Claimant could do it. There was evidence before us of Ms Johnson telling Mrs Packwood that the Claimant did not have to do it.

[125]By 7 and 8 January 2023 Mrs Packwood was raising concerns that the Claimant did not like going to refill the vending machine at housekeeping which we understand was the furthest away, and this was because it was broken and had not been fixed in some time. Ms Johnson again said the Claimant did not have to do it if it she was getting worked up, to which Mrs Packwood replied that the Claimant was anxious about it but was pushing through it.

[126]By 15 January 2023 the issue had changed and Mrs Packwood said the Claimant could not ride the bicycle as it was too big and she could not adjust the seat, the bike has a child’s trailer and the weight is significant, and the furthest vending machine was the one causing her anxiety and it takes her into an area of the village where she is often approached, watched and spoken to, the machine is persistently broken and she is the focus of many disappointed people. Mrs Packwood wrote to Mr Sturzaker in February and March 2024 and in her letter, she said that staff / customers were complaining, and in the Schedule of Loss it is alleged that customers were complaining. We record that these were staff vending machines in staff areas, therefore the Respondent’s guests had no access to them, and it was purely the Claimant’s colleagues who were the customers.

[127]The Claimant went on sick leave from 22 January and never returned to work but during the May 2023 meeting the Claimant was informed the task had been removed as the vending machine supplier had been changed.

[128]In the Claimant’s oral evidence to us in the hearing she said that customers were in her personal space and there was aggression. This was never raised before. We make allowances for the Claimant’s autism which could have caused her to perceive that colleagues who were disappointed the vending machine was broken appeared to her to have been in her personal space or aggressive, however we do not find that is what really happened. Had that happened, and even if the Claimant genuinely believed at the time that was happening, it is highly likely Mrs Packwood would have raised it with the Respondent at the material time and challenged it as she was a vociferous correspondent. We therefore find this invasion of personal space and aggression did not happen.

[129]The Claimant argued before us that the bicycle seat could not be altered as it was rusty. We do not find that was the case either as the Respondent’s unchallenged witness evidence was that the bicycle changed weekly having been provided by the Respondent’s on site bicycle workshop which hires out bicycles to guests and which could easily have replaced or adjusted the bicycle if needed.

[130]Also, in the hearing Ms Johnson was asked by Mrs Packwood about making adjustments to this task as the trailer was too heavy with the stock in them, to which Ms Johnson said the solution would have been to take less stock and to make two trips. This was also unchallenged by Mrs Packwood.

[131]The Tribunal was left without a clear understanding from the Claimant what part of this task it was she said put her to some sort of disadvantage, and whether it was the bicycle and trailer she was complaining about, or having to explain to disappointed colleagues that the vending machine was broken. In any event Ms Johnson was very supportive of the Claimant and told her she did not have to do any of this task if she did not feel able, and it was Mrs Packwood who kept replying that the Claimant wanted to do it and was trying to push through. Our finding is that the Claimant was not required to complete this task, and even if she did experience difficulties undertaking the task, it was no more and no different to that experienced by other colleagues without her disabilities. Migraine on 13 November 2022

[132]On 13 November 2022 Mrs Packwood sent Ms Johnson a WhatsApp message in which she said that the Claimant had woken up with a migraine, she explained she suffers from hemiplegic migraines which mimic a stroke, she had no feeling down her left side from her face to her feet, she could not see out of her left eye, she could not stop shaking, and felt sick and she was very teary. This information was not shared with the Claimant’s GP or neurologist the following year when assessed for her suitability for the high ropes role which we will address later.

[133]In an email on 15 January 2023 Mrs Packwood referred to this incident in which she said that the Claimant had suffered from one hemiplegic migraine that prevented her from going to work, stress and anxiety are two of the triggers of her autism, hemiplegic migraines and complex partial seizures, and she would usually have a carer accompany her as her needs are not simply measured on physical ability, but also her ability to cope with some personal management, her cognitive ability, mental health, vulnerability and safety.

[134]In a separate email on 19 January 2023 Mrs Packwood said the Claimant struggles significantly with anxiety beginning two or three days before the weekend and often triggering a migraine, leading to one hemiplegic migraine since she started with the Respondent that caused her to be off sick. Breach of confidentiality

[135]Mrs Packwood has made repeated allegations of a breach of confidentiality by the Respondent in sharing details of the Claimant’s impairments with her colleagues. This is part of the reason which we will address later, why the Claimant says she refused to return to work in the CPU after going sick. However, no corroborating evidence has been provided, moreover we accept the evidence of Ms Johnson that Mrs Packwood would walk through security down to the staff diner with the Claimant and she would start speaking to other members of staff as they came outside.

[136]This is confirmed in a WhatsApp message from Mrs Packwood on 10 December 2022 to Ms Johnson where she advised she waited outside as the Claimant wanted her to speak to someone. Mrs Packwood said she spoke to a colleague named Matilda whom she told the Claimant was a bit anxious, she is autistic, and was worked up about pushing the bicycle up the hill, and she added that the Claimant walked off with Matilda and she hoped that would be enough for her to know that someone she feels she can go to she needs to speak to anyone.

[137]It was clear to us that any disclosure of the Claimant’s medical information to colleagues came from Mrs Packwood, not the Respondent.

[138]We have also been provided with an online newspaper article featuring the family from September 2023. Mr Packwood had apparently gone to the media after buying a pasta meal from Tesco which contained a piece of plastic. The article reports that Mr Packwood bought the meal for his daughter who has long term special educational needs and disabilities and she found the plastic in her mouth, and when they returned to the store Mrs Packwood had three seizures on the shop floor due to the stress. The Claimant’s first name was not used, however her surname would have been clear as would the fact that she had health conditions.

[139]We will address later in this judgment Mrs Packwood’s threat to go to the media about the Respondent which she says was on the advice of a social worker. It was clear to us, having considered these three matters, that it was the family which routinely discussed the Claimant’s health openly with others or threatened to do so. It was not the Respondent which had breached any confidentiality. December 2022 Occupational health referral

[140]The Claimant took part in an Occupational Health assessment on 15 December 2022. This was carried out by Ms Johnson, Dr Roddah and Dianne Bradbury the nurse manager. Mrs Packwood was on site but sat in the diner. The Occupational Health report dated 19 December 2022 recorded that the Claimant’s duties were being gradually increased, the Claimant seemed content in her role and did not feel there were any duties she was unable to do. It was recorded the Claimant’s pace of work was not up to the expected standard and other team members would often help her. It was further recorded that the Claimant was observed working independently, able to follow instructions, and used suitable lifting and bending techniques. The doctor recorded the Claimant was fully capable of discharging her role and she may be lacking some confidence which may lead to anxiety working in busier areas such as oversight of the vending machines, but she had the capability of undertaking the full scope of the role with training. Travel to work

[141]Part of the claim concerns the Claimant’s travel to work at the Respondent’s Village which is a large site with two large car parks including some disabled parking. The Claimant’s place of work at the CPU within the diner in an area called the Plaza. Staff can park at a car park which is further away than guest parking, and all arrivals go through a security barrier at a staffed security lodge.

[142]The site itself is generally car free although guests are permitted to bring their cars onto the Village up to their lodges on change over days which are Mondays and Fridays. Other than that, there is very little road traffic on site and guests will move around on foot or by cycling.

[143]The Claimant’s place of work at the CPU is close to both parking areas. There is a Plaza Yard where lorry deliveries come into the Plaza and where some company vehicles are kept. That is a generally busy area.

[144]Within the ET1 the Claimant says that Mrs Packwood had walked the Claimant from the car park to the CPU from day one. This is untrue. On 10 December Mrs Packwood messaged Ms Johnson about the vending machines and during the exchange explained that she had had to walk the Claimant to the kitchen doors that day and would do so at the end of the day, and that it made her feel better having someone to chat to. Mrs Packwood said she would speak to the Claimant’s GP to see if there was anything she could take for her anxiety and that it did not help that she was jumped on by a lad at college and put in a headlock a couple of days earlier. We noted the reference to accompanying the Claimant to the kitchen that day, and the inference we drew from this was that this was the date the accompanying started and not from day one as has been alleged elsewhere.

[145]A later message from Mrs Packwood to Ms Johnson on 14 January 2023 stated that the family had been driving the Claimant down to the car park and then walking the Claimant to the kitchen every morning since she started struggling at the start of November 2022 and security had given them permission to do so however they had informed her that they needed permission from Ms Johnson or the Medical Centre. This message is at odds with the 10 December message but also the claim form.

[146]In any event, Ms Johnson replied to Mrs Packwood and advised that she could not give permission as the Claimant had been cleared medically fit to work and she did not think the Respondent’s Medical Centre would give permission either. Ms Johnson referred Mrs Packwood to HR.

[147]At 4pm on 15 January 2023 Mrs Packwood emailed HR and others within the Respondent in which she raised several concerns. By way of summary Mrs Packwood alleged security had allowed her to take the Claimant down to the diner, they had travelled by car due to Mrs Packwood’s own mobility issues, and security had allowed them to park at the Plaza Yard. Mrs Packwood complained that someone in security prevented their entry on 14 January and had told her that the Claimant could be collected by someone from security at the end of her shift, and this caused the Claimant to become stressed, unsettled, she could not sleep and started to vomit.

[148]The evidence of Mrs Packwood was that she had been driven down to the diner with the Claimant due to Mrs Packwood’s own mobility issues. Mrs Packwood has repeatedly told us that she is the Claimant’s Registered Carer and that her husband Mr Packwood is her Registered Carer (and that of the Claimant as well), and that it was Mr Packwood who was driving them both to the CPU. This did not make a great deal of sense to us, and it was not explained to us why it was necessary to do so when Mr Packwood could have walked the Claimant to the diner from the car park if she needed to be escorted.

[149]Ryan Lane, the Assistant Security Manager, replied promptly the same day and apologised for any inconsistency, he said that security were not aware of any agreement for this to happen, he agreed to look into the matter pending the outcome of a meeting the following day to consider the issue, and asked for the car registration to avoid the family having to explain themselves to staff each time they arrive. This was a particularly helpful and supportive email.

[150]On 17 January 2023 Katie Maslin in HR wrote to Mrs Packwood to advise that they should not have been given access to drive to the Village, and she said that the Claimant could park in the disabled section of the guest car park and walk from there which would avoid having to drive. Ms Maslin was clear that entry through the barrier would be refused. Mrs Packwood suggests that the Respondent was refusing to allow her to escort the Claimant, and whereas the email is not explicit, the intention was to allow Mrs Packwood to continue to escort the Claimant given the reference to “avoiding you having to drive.”

[151]A further Occupational Health meeting was due to take place with Dr Roddah on 26 January 2023. Mrs Packwood asked for the issue of travel to be resolved before then as the Claimant was due to be on shift on 21 and 22 January. Mrs Packwood was critical of Ms Maslin and the Respondent and said the refusal to allow the access was like forcing to someone who cannot walk to do so without a wheelchair, although she said the Claimant could walk, rather she said these were times that caused the Claimant significant anxiety which was why Mrs Packwood had been accompanying her on the walk. Mrs Packwood was insistent that she should continue to escort the Claimant to the diner. Mrs Packwood sent further emails about the matter to other senior officers within the Respondent.

[152]On 19 January Ms Malin sought to placate Mrs Packwood and said the family should park in the disabled section of the guest car park and she would arrange for Mr Robb to escort her in. Mrs Packwood replied and challenged what had been offered and said this was not a mobility issue rather this was about her (Mrs Packwood) being there to bridge the gap from home and work, they would chat and look for wildlife, it would ease her to work and avoid anxiety building.

[153]Further correspondence ensued and Ms Maslin asked Mrs Packwood to agree the interim measures proposed, however this was rejected, and Mrs Packwood made several serious allegations against the Respondent of blockading, being pertinacious and obstinate. Mrs Packwood also said that she would seek legal intervention which was clearly a threat to sue the Respondent, and she indicated that they did not wish to meet Ms Johnson. Ms Johnson had recently raised concerns to HR about receiving the photograph of Mrs Packwood’s husband with the dog, and Mrs Packwood accused her of deliberately disproportionately elaborating facts.

[154]Mrs Packwood would later write to the Respondent in February and March 2024 and in that correspondence, she stated that Ms Maslin’s suggestion was “acknowledgment of our daughters’ [sic] stress and selfharm is causing us.” However, this could not possibly be accurate as we have noted that in these proceedings Mrs Packwood has alleged that the Claimant had started to self-harm and have suicidal idealisation on 24 January 2023 (which is after Ms Maslin’s suggestions were made not before). We will address the issue of self-harm and suicidal idealisation below.

[155]It was at this time from 15-17 January 2023 that Mrs Packwood became very critical towards the Respondent in her correspondence, it was clear from her comments that Mrs Packwood was annoyed that Ms Johnson had spoken to HR about the photographs she received.

[156]On 21 January the Claimant arrived for work and was met by Mr Robb at the arranged place and time. Mrs Packwood asked to accompany them to the diner which he agreed. Zoe Rushbrook in HR replaced Ms Maslin at this time and she decided at 12:35pm on 21 January that the Claimant could be escorted that weekend. Ms Rushbrook communicated this to her colleague Amanda, however, it was not immediately shared with Mrs Packwood or with security.

[157]The following day on 22 January Mrs Packwood sent a complaint to Nick Clifford in HR. Several serious allegations were made. Mrs Packwood alleged that they did not know who escorted them on 21 January. We have found that to be inaccurate as it was Mr Robb who the Claimant worked alongside and who had performed the risk assessment with her. Mrs Packwood alleged that the Respondent must have shared the Claimant’s personal information with others, however there was no corroborating evidence of this, the Respondent and Mr Robb have denied it, and it was Mrs Packwood who had done so by speaking to Matilda and others.

[158]In the hearing before us Mrs Packwood questioned Mr Robb and discussed the conversation she had with him on that day. We asked Mrs Packwood if she was now agreeing that Mr Robb was the person she had met on that day, to which she told us that the Claimant did not recognise him. We asked Mrs Packwood if she recognised the witness as the person who escorted her that day, to which she said that she did not. Mrs Packwood could not explain why anyone would wish to impersonate Mr Robb for the purposes of escorting her and the Claimant to the diner. It appeared to us to be a bizarre allegation which was made to maintain the suggestion that the Respondent must have shared the Claimant’s personal details with a colleague. We find that to be untrue. The Respondent has alleged that Mrs Packwood was looking for things to complain about, however we find that Mrs Packwood was inventing things to complain about. There was no breach of confidentiality by the Respondent, it was clearly Mr Robb who accompanied them that day, and the Claimant knew full well who he was as she worked alongside him.

[159]We also make it clear the Respondent had not prevented the Claimant from being escorted on site, rather security had stopped the family from continuing to drive through the barrier to the CPU as this was generally a car free area.

[160]Mrs Packwood said that as security could not tell her who would accompany the Claimant that evening, she was left feeling tricked, shocked and concerned that the Claimant would be in distress and feel humiliated being escorted by a stranger, and that her personal information would be shared with another member of staff. Mrs Packwood said she telephoned child protective services at the local council who advised her to remove the Claimant from the work environment, for her to tell the Respondent about their breaches of the Equality Act 2010 and to also consider sharing their experiences with media outlets to protect other people in the community from being subjected to the same adversity and anguish.

[161]In her oral evidence Mrs Packwood maintains that account of what she says she was told to do by the emergency social worker, no corroborating evidence was provided, and we find on the balance of probabilities that did not happen, it is highly implausible that a social worker would have provided advice to her to go to media outlets as described. Mrs Packwood’s insistence that this occurred caused further damage to her credibility before us.

[162]There was no contact from Social Services and this appeared to be another threat on the part of Mrs Packwood towards the Respondent. In any event Mrs Packwood was allowed to collect the Claimant that evening, she was driven down to collect her by a colleague named Archie.

[163]Within her email, Mrs Packwood alleged that the Claimant called her and asked for her to bring her support dog Winston. It was put to her in evidence this was inconsistent with subsequent documentary evidence where she recorded that the Claimant may benefit from the provision of a support dog which implied she did not yet have one. Mrs Packwood’s evidence, which we find implausible, was that she was referring to obtaining a separate or second support dog for other support functions. The Claimant also agreed with this in her oral evidence – she suggested someone may have one for the shower or in the car, and a separate one for walking with. We found both accounts to be implausible and we didn’t believe them. This damaged the credibility of both the Claimant and Mrs Packwood.

[164]Mr Packwood called Mr Robb on Sunday 22 January 2023 to report that the Claimant would not be in work due to sickness. The Claimant never returned to work and by this time, she had completed 24 shifts, equivalent to about 12 weekends since early October 2022.

[165]Mrs Packwood has alleged that the Claimant started to self-harm in private on 24 January 2023, but it was not discovered by her until 26 January. It is also alleged that she started to have suicidal idealisation as well and that she was prescribed sertraline by the GP, and Mrs Packwood says that this was caused by the Respondent. There are enormous inconsistencies with this account. Firstly, the GP records before us for that time do not record anything about this even though the Claimant was routinely attending her GP. Secondly, the Claimant and Mrs Packwood made no mention of this during an Occupational Health referral the same day (mentioned below). The schedule of loss refers to undisclosed emails from Mrs Packwood to the Local Authority from on or around 31 January and 2 February 2023 which recorded that the Claimant had spoken about self-harm; this was a contemporaneous document but made no mention that she had actually done it. A Care Act Assessment with Social Services took place in March 2023 which made no mention of this, but instead recorded the following: Question: Assessed as having the potential to cause risk or harm to self or others? Answer: No Question: Assessed as having thoughts of suicide or suicidal actions? Answer: No Question: Assessed as having the potential to self harm/injure or evidence of participation in risky behaviours? Answer: Elise’s mother Heidi had informed the college of an incident where Elise had self harmed with clean scissors. Elise had spoken to the college rep who then informed me that Elise mentioned it was a one-time situation and the college are currently monitoring this.

[166]Later in the report it recorded that the Claimant had self-harmed due to becoming quite overwhelmed when Mrs Packwood could not help her with a task at home.

[167]Mrs Packwood withheld the relevant pages above from the Care Act Assessment in the bundle she provided to us, and the reason given was because they were not relevant. We disagree. These were relevant pages for us to see, and it was unreasonable to seek to withhold them.

[168]On 26 January 2023 the Claimant attended an Occupational Health assessment with Dr Roddah, Ms Bradbury the Respondent’s nurse, as well as her parents. The report recorded that the difficulties the Claimant and or her parents said she experiences with autism including dealing with people, anxiety, speaking, reading, writing, being told what to do, and being treated unequally. It also recorded the Claimant has speech and language difficulties, was less confident with unfamiliar people, and has difficulties with social interaction due to her autism. Further it recorded the Claimant finds it difficult to express her wants, needs and views, often holding onto emotions, and that her anxiety can present with a variety of symptoms including nausea, vomiting, diarrhoea, shaking, migraines and complex partial seizures. The reference to being told what to do was removed from a second version as Mrs Packwood said that it was derogatory and insisted upon its removal.

[169]Dr Roddah made various recommendations including further training in the presence of her mother, possible visual learning, review and provision of the uniform and footwear, increased open communication, the kitchen management to review if there is any unfair allocation of workload. It was recorded there was no allocated parking outside of the unit for staff however the closest car park is less than a five minute walk to the diner and as the Claimant speaks to her mother when attending to vending machine it would be helpful for her to continue to do this when travelling to and from the car park until she becomes more comfortable making the journey. Dr Roddah recommended suspending vending machine duties.

[170]Mr and Mrs Packwood have been exceptionally critical of Dr Roddah and have accused him of not being suitably qualified or educated, and this appears to relate to his additional specialism in dermatology, as well as his qualifications as a GP and Occupational Health. There is a lot of material within the Claimant’s bundle which is aimed at discrediting the doctor. Much of this criticism, including that in the Claimant’s bundle, is highly unsavoury and unjustified, and presents as a witch hunt simply because the doctor later, as will be seen, did not side with their views.

[171]On 10 February 2023 Mrs Packwood raised the possibility of the Claimant moving departments. Ms Rushbrook asked if the Claimant would return to her role to which Mrs Packwood replied the Claimant was not comfortable returning to the CPU, she was particularly uncomfortable knowing that staff members were aware of her difficulties, and she felt that any relationship with Ms Johnson had completely broken down. Ms Rushbrook advised that a transfer depended upon a vacancy and would necessitate an application, and she provided a link to the careers website. On 2 March 2023 Mrs Packwood wrote to list the legal complaints the family had against the Respondent.

[172]We record that we saw no evidence of a relationship breakdown between the Claimant and Ms Johnson, rather we saw Mrs Packwood’s annoyance that Ms Johnson had raised concerns with HR about the messages she received from Mrs Packwood. High Ropes role

[173]On 2 March 2023 the Claimant applied for two vacancies with the Respondent. The first was a high ropes instructor and the other was an outdoor activities centre instructor within the Respondent’s Aerial Adventure. The latter application was not progressed as the Claimant was subsequently given a provisional offer in respect of the high ropes instructor role.

[174]The High Ropes is an adventure course where guests are attached to a wire by instructors and they then proceed through a course suspended in the air at the height of a tree canopy at least 10 metres in the air before reaching a platform where they are transferred by instructors to a different system of attachment to the wire, where they then slide along a zip wire which crosses a lake before hitting a braking system which must be correctly reset. There are other functions, such as a smaller version for younger children where the height is 5 metres, there is another activity called the Drop where guests jump from 10 metres onto an airbag, and there is also a climbing wall. These activities all involve working at height, they are the most dangerous, and they have the highest volume of guests.

[175]We have received oral and written evidence from Lee Barrowcliffe, Group Outdoor Manager, and Wayne Hawkins the Leisure Services Manager, about the safety critical aspects of this role. Their evidence has been honest, consistent and helped us to understand how these roles operate and the risks to safety. We understand that most of the courses and equipment are based off ground, they are checked and inspected daily, there is a staff rotating system in place which is based upon advice from leading industry experts to ensure that nobody becomes stagnant or complacent and it helps them to remain engaged and attentive to minimise the risk of mistakes. A rescue procedure may need to be implemented if a guest is in fear of continuing or due to fatigue which means that staff working on the ground need to go up and complete a rescue and this could involve the closure of the activity and evacuation. We are told this is a regular occurrence.

[176]Other duties involve checking guests have completed a medical questionnaire correctly, and ensuring they complied with age and weight requirements. We were informed about the serious risk of injury for both the instructor and the guest if things go wrong for example if someone is taken out of their harness incorrectly at the end of the visit, to equipment becoming twisted presenting a risk for the next guest. We were also told that the procedures and policies are complex and require staff to retain a lot of information.

[177]We were also told that if a mistake is made which causes an individual to fall from the height, then serious injury or death is a virtual certainty, and guests may become panicked or stressed or agitated not just due to the ride but also due to delays or being concerned about their families. When this happens a member of staff will need to reassure them or conduct an evacuation. In a recent situation a guest became extremely agitated and shouted in the face of member of staff due to raised adrenaline and anxiety. Those working in such an environment would need to be sufficiently robust. We were also told that those performing the role need good attention to detail and can identify and act on hazards.

[178]The Claimant was offered an interview for the role which she could not attend as she was away on a course even though she was signed off sick from work. The interviews were rearranged for the Claimant, and on 31 March Mrs Packwood again reiterated the Claimant was not comfortable returning to her role in the CPU. Care Act Assessment

[179]The Claimant’s parents arranged for a Care Act Assessment from Central Bedfordshire Council to be carried out in relation to the Claimant. This took place on 6 March 2023, and the report was received on 29 March, but Mrs Packwood delayed sharing it with the Respondent until 20 April 2023 although it was not explained why.

[180]This report has become an important but a contentious document. In summary the document describes levels of impairment far greater than the Respondent says it observed of the Claimant whilst performing her work. Much of the report is based upon information which Mrs Packwood provided to the report’s author. In addition, Mrs Packwood removed large chunks of the report from her bundle for this hearing, and in doing so that suggested that the level of impairments was far less than the report recorded. Mrs Packwood said that the removed parts were not relevant, however we find that they were, and it was unreasonable for her to have attempted to withhold them from us. Some of the matters in the report were not shared by the Claimant or Mrs Packwood with the DLVA when applying for a driving licence, and this has also caused us to question the veracity of the level of impairments recorded in the report. This fits in with the Respondent’s argument that Mrs Packwood gives different versions to different people depending upon the outcome being sought.

[181]The report indicated the Claimant could understand three or four words at a time, the Claimant finds it better to understand through pictures and photographs being shown to her; the Claimant struggles with anxiety which can make her quite unwell causing sickness, diarrhoea and shaking, and it also triggers hemiplegic migraines. The report advised that complex partial hemiplegic migraines symptoms mimic a stroke where the Claimant can lose feeling in one side of her body usually the left side from the head to toe and it can take 2 to 3 days to recover. It also recorded the Claimant had had a panic attack in the middle of a football pitch whilst playing football.

[182]The report says that the Claimant’s parents said she cannot cook for herself but will make oven food with her sister, she will not use the stove to boil anything or the oven to cook anything and is uncomfortable with the heat given off and that she worries about the risk of fire, which can be disproportionate. The report also records that distress of any situation can cause hemiplegic migraines and complex partial seizures and autistic meltdowns.

[183]The report also indicated the Claimant has extreme sensitivity to textures and seams in clothing which means she can find the feeling very distressing which can trigger migraines, sickness and complex partial seizures. It also recorded that the Claimant’s parents reported that the Claimant does not acknowledge safety as much as she should and does not acknowledge the dangers of certain things and that she can be anxious about certain environments if her parents are not with her. The report says it would be another goal for the Claimant to have support acknowledging safety and to know the basics own safety; that she manages to understand things better through pictures; and that she does not fully acknowledge the dangers of certain things.

[184]The report also records staff will accompany the Claimant to college as she does not like walking on her own due to the college being quite open; the Claimant often needs guidance reminding her of safety in the shower from slipping; the Claimant has poor judgement; the Claimant struggles to retain certain information and can often forget things; the Claimant is more comfortable following script based communication with specific rules; the Claimant finds it hard to communicate/socialise with other colleagues when in close proximity; the Claimant does not always remember what she has been told and she struggles with relationships due to anxiety.

[185]The report goes into detail about the Claimant’s difficulties with memory and recall. The report recorded the Claimant can struggle to remember what she has done the day before and may sometimes misunderstand rules of games and applies literal thinking that can cause her difficulties; and she may become angry if someone else tries to adapt her from a taught process. It was recorded that the Claimant finds it difficult to transfer skills she has learned from one area to another; that supported English is more appropriate for her; and the Claimant can become triggered in busy unfamiliar environments which can lead to migraines.

[186]The report also referenced that the Claimant was in receipt of Personal Independence Payments. As we have recorded, the Respondent has sought disclosure of that information, the Claimant was ordered to provide it, but Mrs Packwood refused on the basis that they are not her documents to disclose. We find that the information provided to DWP would have been relevant for us to consider, and the refusal to provide it was both unreasonable, and a refusal to comply with an order of the Tribunal.

[187]We were also provided with a sensory care plan which was disclosed in support of the Claimant’s application for reasonable adjustments for this hearing. That plan records that the Claimant can understand and process small amounts of communication if this is broken down with a mixture of sign language and voice-over from a BSL interpreter, and any in-depth conversations must be discussed with Mrs Packwood who will attend any appointments to support the Claimant.

[188]These documents suggested a very significant level of impairment. Had the full version of the Care Act Assessment not been provided to us by the Respondent, the level of impairment described would have been considerably less. 10 May 2023 meeting

[189]The Claimant was invited to attend a review meeting to discuss her ongoing absence, to understand her reasons for not wanting to return to the CPU, to discuss reasonable adjustments and to facilitate a return to work. The meeting took place on 10 May 2023, it was chaired by Mr Sturzaker, Ms Rushbrook was in attendance, as were the Claimant and her parents. Prior to the meeting Ms Rushbrook asked Ruth Hollins, Director of Health and Safety and Risk, to comment on the use of the Plaza Yard by members of the public. Ms Hollins replied that this is a working yard with access from large vehicles unloading and loading, contracting movements and some permitted colleague parking, and that it is not a safe location to allow public parking.

[190]Prior to the meeting Mrs Packwood sent a detailed 11-page email entitled statement of substantiated facts in which she set out her chronology, and in which she made allegations of direct and indirect discrimination, and failure to implement reasonable adjustments. Given Mrs Packwood was able to produce a document of this quality there is no credible reason why she could not have produced a witness statement for use in this hearing.

[191]The minutes indicate this was a positive meeting with a number of adjustments agreed for the Claimant, including an agreement that her parents could park in the disabled area of the guest car park; Mrs Packwood could escort the Claimant to the diner at the start and end of her shifts; the Claimant would no longer have to fill vending machines because the supplier had changed; the uniform was ready for the Claimant together with an undertaking that safety footwear would be ready for her as well, as other adjustments directly related to the performance of her kitchen porter role. Most of those things were already in place for the Claimant in any event and had been in place for some time – for instance walking the Claimant to the diner which had never been prevented, it was the driving which had been stopped.

[192]Following the meeting the Claimant was asked about at a date she could return to work. Whereas Mrs Packwood agreed this had been positive, she indicated the Claimant wanted to do something else within the Respondent, there was no way back to her previous role, and this was due to a relationship breakdown, sharing of information about her difficulties, and the role had been mis-sold to her. Mrs Packwood continued to make complaints going back to the start of the Claimant’s employment and her induction. We noted that the Respondent had acceded to all the requested adjustments to the Claimant’s substantive role, yet she was still unwilling to return to work.

[193]The Claimant undertook the assessment for the high ropes role on 12 May and was offered the role (subject to medical advice) after making a reasonable adjustment to her scores as she scored just less than the pass mark and below five other candidates. The Claimant was then required to complete a medical questionnaire for the role which Mrs Packwood completed however this was missing details of some of her impairments. We should record that within the Claimant’s job application she was asked about health-related conditions which may require special adjustments to be made to which the Claimant replied - autism, visual learner, bilateral hearing loss. The Claimant did not make any reference to hemiplegic migraines mimicking a stroke, anxiety, complex partial seizures, or memory impairment.

[194]As regards to the medical questionnaire, the Claimant recorded migraines but not hemiplegic migraines mimicking a stroke and the Claimant also omitted anxiety, complex partial seizures and memory impairment. This was surprising given that one had occurred in November 2022, only six months earlier.

[195]Ms Rushbrook observed that this detail was missing from the application and questionnaire and raised this with Mrs Packwood who initially said she was not required legally divulge all the information as she said it was not relevant, however she eventually relented and complied. We noted that Mrs Packwood said that the Claimant’s hearing was not an issue when wearing hearing aids.

[196]We also observed that when challenged by Ms Rushbrook Mrs Packwood said that the Claimant’s “memory impairment only related to information or communication during a migraine or other pain inducing period of time when she would not be in work or she cannot hear or is without hearing aids which wouldn’t ever be the case.” This appears to be odds with the information contained within the Care Act Assessment which we have noted is information supplied by Mrs Packwood. This again appeared to be an example of Mrs Packwood giving different accounts to different people depending upon the outcome being sought.

[197]An Occupational Health referral was arranged to consider the Claimant’s fitness for the role, prior to which Ms Rushbrook asked Charlene Bannon the Safety Manager if the Claimant would be safe to undertake the training. Ms Bannon explained that the colleague could undertake all classroom based and ground level training but must not train or work at height under any circumstances until signed off as medically fit to do so and this was for the safety of the colleague and others as they must eliminate the risk of suffering an epileptic episode or seizure whilst at height.

[198]Ms Bannon suggested that Occupational Health may advise against working at height if the colleague had suffered an epileptic episode or seizure which affected consciousness or bodily control within the past 12 months, these are the same guidelines imposed by the DVLA for driving, and that confirmation from the GP would be needed if there had not been an epileptic episode or seizure within that period. It was advised that it may be beneficial for the colleague to undertake partial training and resume the training at height following sign off by Occupational Health.

[199]When Mrs Packwood was notified of this she accused the Respondent of disability discrimination.

[200]The Claimant commenced an Action Challenge Course on 5 June for the high ropes training although her offer was conditional. On 7 June Ms Rushbrook became aware that the Claimant was undertaking the course at height, and she instructed the relevant manager to stop. Mrs Packwood also complained about this decision and said it had not been handled discreetly. Mrs Packwood told us in her oral evidence that she did not know the Claimant had gone up at height until she had the results of the Claimant’s subject access request some time later.

[201]The Claimant was questioned about this by Ms Hodgetts and she agreed with Mrs Packwood’s account and said that it was true. The Claimant was referred to an email to Ms Rushbrook from Mrs Packwood of 8 June 2023, the day after she went on the high ropes. In the contemporaneous email Mrs Packwood said that no-one had disobeyed the instruction not to go up there, the Claimant was advised she could complete the training on an online form or questionnaire as a guest, and further: “We know this because she rang us on the phone, unable to complete it by herself and she read out the questions it asked. The only question I recall remotely relates to what you insinuate is ‘any condition that may affect being at height’ (or something to that effect), but there isn’t anything that would affect working at height so she had not, nor have we, contradicted anything. At no point did the online questions ask for pre existing diagnoses.”

[202]It was put to the Claimant that Mrs Packwood therefore knew the same day about the medical questionnaire because the Claimant had telephoned her and gone through the questions. The Claimant replied yes. It was put to the Claimant that what Mrs Packwood had told us then was not true that she only found out about it after the SAR results, to which the Claimant said her mother only helped her with some of the answers to the questionnaire which had been on an iPad. It was again put to the Claimant, following an explanation by me about what was being asked, that what Mrs Packwood had told us was untrue. The Claimant replied no.

[203]The evidence of Mrs Packwood was therefore inconsistent not just with that of the Claimant, but also the document she had written on 8 June 2023. This left the Tribunal puzzled as to which account was to be believed, however on balance we found the Claimant’s account to have been more plausible as she often telephoned her mother for advice and Mrs Packwood was the author of the email of 8 June confirming she knew about the questionnaire at the time.

[204]Accordingly, Mrs Packwood’s knowledge about the questionnaire did not come from the SAR, and her oral evidence to us was untrue. Mrs Packwood was aware that the Respondent had directed the Claimant not to go up on the high ropes, she sought to challenge it at the time by saying it was discriminatory, and she knew the Claimant was going up on the high ropes on 7 June and did not prevent it. This inconsistency damaged the credibility of Mrs Packwood who gave us unreliable evidence, but also the Claimant as well as she agreed with it.

[205]Further correspondence and complaints from Mrs Packwood ensued over the coming days and the Claimant’s Occupational Health appointment took place on 15 June 2023 with Dr Roddah and Nurse Bradbury. The report records that the Claimant’s hearing was grossly normal and she was not wearing hearing aids that day. Dr Roddah read the Claimant’s Care Act Assessment and noted that it was not fully aligned with what the Claimant’s parents had told him. Whereas the Assessment mentioned the Claimant may have complex partial seizures when stressed, the doctor said the Claimant’s parents told him she had not had one since 2012 and sometimes gets twitching/lip smacking which is barely noticeable. Similarly, the Assessment said the Claimant has hemiplegic migraines which causes stroke like symptoms; however the doctor said the Claimant’s parents said it rarely occurs, it had only happened twice in the past four years and is preceded by an aura. Moreover, the Assessment referred to the Claimant’s autism and that she needs reminding of safety in the shower which he said her parents now deny.

[206]Dr Roddah recorded that the Assessment said the Claimant needs to be accompanied walking by members of the staff on college grounds and that the new role would involve working independently and overseeing safety of guests in an outdoor environment, he therefore recorded he had concerns about the Claimant working independently and her ability to cope and manage in emergency situations given her sensory difficulties which were evident in the kitchen assistant position. The doctor recorded the Claimant’s parents said that this impact was due to unfamiliarity and that as she was now training for a role she loves she was much better adjusted. The doctor further recorded that the Assessment did not indicate that the conditions and difficulties were historic, but rather they were ongoing which were evidently discussed during the assessment.

[207]Dr Roddah sought additional information from the Claimant’s GP and neurologist as the high ropes instructor role is a safety critical role, and the risk of incapacitation needed to be assessed. It was recorded that whereas the Respondent’s health and safety obligations would need to be fully considered, the Equality Act would also apply, any recommendations would need to take account of this and avoid unnecessary restrictions on the Claimant’s role, however health and safety would need to be weighed against this.

[208]It was clear to the Tribunal that there was a substantial difference between what Mr and Mrs Packwood, and the Claimant, had told the Care Act Assessor in March 2023, and what they were now telling Dr Roddah in June 2023. There was an enormous difference in the level of impairments which would have made it very difficult to be confident about what was the accurate version noting also that they were only three months apart.

[209]The Claimant’s GP replied and indicated they wish to get a further opinion from the Claimant’s neurologist. The GP’s request was based upon inaccurate information. It asked whether the Claimant would be considered safe for working in an environment such as high ropes if the Claimant had been seizure free for 11 years, and her last migraine was three years ago. The Claimant had in fact suffered from a migraine on 13 November 2022. The referral did not include details of the role of the Claimant had applied for and it also stated, “I understand that she has worked on the high ropes in the past without any problems”. This was inaccurate.

[210]There was a considerable delay in receiving a reply and eventually it came from Mrs Packwood rather than the neurologist on 6 November even though it was addressed to the Respondent. It has not been explained to us why this is the case, although it would appear that there was dialogue between Mrs Packwood and the GP about the report as noted in an email from the surgery of 30 October 2023.

[211]The advice from the neurologist was that if the Claimant had been seizure free for 11 years, she was able to undertake “a” new role. The response was very brief, it made no reference to the specific role nor to migraines. It was not clear to us if the neurologist was referring to the specific role or a role in general. We noted that this advice was included in the letter from the Claimant’s GP of 1 November 2023 which recorded that the Claimant had not had a migraine for three years. This was clearly inaccurate as the Claimant experienced one 12 months earlier which left her paralysed down one side and shaky.

[212]The Respondent also sought advice from Laura Pollard, the Group Outdoor Activities and Safety Advisor as to the nature of the high ropes role. Ms Pollard advised that there are no specific ground-based sections to the role, every instructor is expected to be ready to work at height during the day, the instructors are trained by the Respondent and assessed by an external specialist, Vertex, subject to a monitoring process. Ms Pollard went through a very detailed summary of the tasks involved in the role which is not repeated verbatim here but which includes PPE checks primarily off ground, checking medical forms, weighing guests and giving them a harness, kitting up into a harness, taking part in a session safety brief, rotated after every four briefings, clipping in and attachment checks.

[213]Ms Pollard noted that there is some course support which can be done from the ground, however instructors must be ready to assist and rescue the guest from the course. Ms Pollard also emphasised that instructors are rotated so someone is not left in one position for a long period of time and has the chance for breaks. In seeking additional information in this way, we formed the view that the Respondent was clearly giving very detailed consideration to the safety issues and what aspects of the role, if any, the Claimant could do, and the associated risks. It did not appear that the Respondent was seeking to rule out offering the Claimant the role, rather we determined the Respondent was repeatedly exploring in detail if there were any aspects of it which could be done safely by the Claimant. 1 December 2023 advice

[214]Dr Roddah provided the Respondent with updated advice on 1 December 2023 following receipt of the medical advice from the neurologist and the Claimant’s GP. The report repeats earlier concerns about the Claimant’s mental resilience, lack of safety awareness, interpersonal difficulties including struggles interacting with new people and unfamiliar situations, and whether this would affect her ability to give instructions to guests, as well as concerns about her vigilance when clipping in guests, responding to emergencies and checking medical forms.

[215]Concerns were recorded about the Claimant’s migraines with all the symptoms previously recorded, the impacts of the sensory symptoms such as panics due to smells, and it was recorded that the Respondent’s health and safety obligations would need to be considered as would the Equality Act 2010.

[216]Dr Roddah expressed that “physical health impairment and mental resilience would be concerns which would in my opinion preclude a safety critical role. Unfortunately, a ground based high ropes role is not available.” The doctor recommended a review with the Claimant to discuss her concerns about the “previous role”, the Respondent’s position with regard to her unsuitability for the high ropes role, and further “Redeployment to a more suitable role would be advised on the basis of medical grounds.”

[217]There was an error in Dr Roddah’s report by way of reference to the Claimant’s kitchen porter role. This was not the Claimant’s previous role, it remained her substantive role. The Claimant was off sick from that role, she had not been transferred to the high ropes role, the offer for which was conditional upon the outcome of medical opinion. 8 December 2023 meeting

[218]The advice was then passed to Wayne Hawkins the Leisure Services Line Manager to make a decision on whether to withdraw or to confirm the offer to the Claimant. The Claimant was invited to a formal meeting to take place on 8 December 2023. Prior to the meeting Mrs Packwood threatened to bring legal proceedings against the Respondent if the offer was withdrawn.

[219]The meeting was attended by the Claimant, her parents, and Suzanne Congerton from HR. Mr Hawkins had a considerable amount of relevant medical information before him including GP records, the December 2023 Occupational Health report, the Claimant’s Care Act Assessment, the neurologist’s opinion, a letter from the Claimant’s GP of 1 November 2023, other correspondence and material including details as to the high ropes instructor role.

[220]Mrs Packwood has alleged that the job description for the role was deliberately edited around this time on 15 November 2023 and the implication is that it was done to exclude the Claimant. We reject that assertion. It was the evidence of the Respondent’s witnesses, whom we believe, that head office had initiated a review of all job descriptions that year, and the instructor role was updated as part of that process.

[221]The notes of the meeting demonstrate a thorough examination of the relevant issues including a consideration of the Claimant’s numerous achievements outside of work and her sporting interests. Mrs Packwood said that the Claimant had shown mental resilience as she had to deal with her mother’s fits since she was little and knew how to deal with them, and that Mrs Packwood did not believe the high ropes role would cause the Claimant stress, and further the Claimant was used to being outdoors.

[222]During the meeting Mrs Packwood continued to make criticisms about Dr Roddah, alleging that he was not suitably qualified to which Mr Hawkins informed her he would be guided by the advice, but it was only one part of his consideration.

[223]On 19 December 2023 Mr Hawkins wrote to the Claimant advising her that the offer of the high ropes instructor role would be withdrawn. Detailed reasons were included in the letter which comprised of noting the safety critical nature of the role, the advice from the Claimant’s GP which raised concerns about the Claimant’s ability to respond to potentially stressful emergency situations and due to the Claimant’s history of hemiplegic migraines and epilepsy, necessitating an opinion from the Claimant’s neurologist. Whereas Mr Hawkins recorded the neurologist stated that the Claimant was fit to perform a new role based on evidence of no seizures since 2012, we note that this was based on inaccurate information from Mrs Packwood. In any event Mr Hawkins noted that the neurologist had not provided a view on concerns regarding emergency situations raised by the GP and nor did they include a reference to the Claimant’s other medical impairments.

[224]Considerable weight was placed upon the Claimant’s Care Act Assessment from March 2023 which was based upon information Mrs Packwood had provided. This referred to the possibility of hemiplegic migraines and complex partial seizures when the Claimant was stressed, anxious or distressed. Mr Hawkins noted the high ropes role involved high stress situations with a high level of responsibility for the safety of others. Mr Hawkins also referred to the Claimant not acknowledging safety as much as she should.

[225]Weight was also placed upon the assessment from Dr Roddah in the 1 December 2023 report which included observations about the Claimant’s mental resilience to deal with stress and unpredictable environments, lack of safety awareness, interpersonal difficulties and migraines which may have safety implications if they were to occur working at height. Mr Hawkins recorded that at the meeting no new evidence was provided by the Claimant regarding these concerns.

[226]The 1 December report from Dr Roddah, as we have recorded, made reference to redeployment, and this is something that Mr Hawkins and Mr Peters were questioned on in this hearing, as well as Ms Rushbrook and Ms Congerton. Mrs Packwood has argued that the testimony was inconsistent with Ms Rushbrook and Ms Congerton giving evidence that an application would be required, however Mr Hawkins and Mr Peter suggested that it may not be but could be agreed by managers.

[227]The line of questioning was based upon a misunderstanding on the part of Mrs Packwood which is due in part to the contents of Dr Roddah’s report of 1 December where he erroneously mentions the Claimant’s previous role. The kitchen porter role remained the Claimant’s substantive position, and the evidence of Ms Rushbrook and Ms Congerton was that if she did not wish to perform the role anymore it would necessitate an application from her for her to move to a new role, noting she had already applied for the high ropes role.

[228]The evidence from Mr Hawkins and Mr Peters about redeployment we understood to relate to situations where someone could no longer perform the role that they were employed to do. That is a slightly different situation to the Claimant’s situation as she was off sick from her substantive position due to anxiety (which is not alleged to be a disability in this case), and the reasons for the absence were said to be due to a breakdown in relations with her manager, Ms Johnson, and also due alleged sharing of details about her condition (which we have found not to be true). At times it appeared to us from Mrs Packwood’s questions to the witnesses that she was under the impression that the Claimant ought to have been redeployed from the high ropes role, however that was not her substantive position – the kitchen porter role was.

[229]We did not therefore observe any inconsistency in the answers from the Respondent’s witnesses, they were in fact discussing separate situations. The most we took from the exchanges was that a member of staff who no longer wished to perform their role was free to apply for another one, and whereas redeployment (on medical grounds) may involve the employee submitting an application for a new role, this was not always necessary with managers able to sort out a redeployment with HR if needed.

[230]We noted in the outcome letter Mr Hawkins’ observation that the decision came down to whether he had been given assurances that the Claimant could safely perform the role from a medical perspective, and that the business cannot put the safety of guest or colleagues at risk and therefore health and safety considerations must take precedence.

[231]The Claimant was informed that her physical health and mental resilience remained of concern in the context of a safety critical role, and whereas there had been consideration of making adjustments and the viability of a ground base role, nevertheless instructors are expected to be ready to work at height at any point during the working day and in any event the ground based tasks have a safety critical element to them as well. Accordingly, the offer was withdrawn noting that the Claimant continued to be employed in her substantive role as a kitchen porter. The Claimant was given the right to appeal the decision.

[232]We find that the reasons provided by Mr Hawkins for withdrawing the offer were the genuine reasons for his decision. We found him to be honest and credible in his evidence.

[233]During the hearing before us Mrs Packwood argued that the risks identified by Mr Hawkins would not arise in the high ropes role which she said would be more scripted. We found that argument to be highly implausible. This was clearly a high-risk activity and a safety critical role, and the reaction of guests and the difficulties they may experience cannot be scripted or predicted as no two guests will be the same. It was the evidence of Mrs Packwood, supported by contemporaneous documents written by her, that the Claimant experienced anxiety walking from the car park at work to the diner, so much so that she needed to be escorted by her. It was also the evidence of Mrs Packwood that the Claimant suffered anxiety not knowing who would collect her from the diner, and again when dealing with colleagues who were frustrated by a broken vending machine.

[234]Whereas we recognise and we accept that the effects of the Claimant’s autism can manifest itself in different ways depending upon the situation, we find it highly implausible to suggest that agitated or stressed guests 10 metres in the air would not cause the Claimant stress, noting that the Care Act Assessment records the potential for stress to trigger a hemiplegic migraine leading to paralysis, as it did in November 2022.

[235]The Claimant did not appeal within 7 days and Mrs Packwood claims that the decision was not received even though it was sent to her email address. This was raised on 15 January 2024 when Ms Congerton attempted to arrange a return-to-work meeting.

[236]Mrs Packwood sent a long appeal letter dated 22 January 2024 (with attachments amounted to 113 pages) in which further criticisms were made about Dr Roddah, attacking his capability and referring to him as uneducated and inexperienced in knowledge of neurodiverse conditions and Mrs Packwood said that the Claimant had passed a DVLA medical review and she provided a copy of the Claimant’s application.

[237]Whereas the DVLA review is not a matter for us we nevertheless record one of the questions asked by the DVLA is whether in the past five years you have had any fits, seizures or blackouts to which the Claimant replied - no. The Claimant was asked do you have any other medical condition you need to tell us about to which the Claimant said yes and she listed possible irritable bowel syndrome, migraines, high functioning autism, delaying speech, language and understanding.

[238]When asked about whether she needed help from another person with day-to-day living, the Claimant replied - yes - and she provided details how that person helps her however there is no reference at all to having an impaired judgement when it comes to safety.

[239]We repeat it is not our function to decide the accuracy of the information the Claimant provided to the DLVA, nevertheless it is relevant for us to consider when assessing the level of impairment, matters such as substantial disadvantage, and also consistency about what Mrs Packwood and the Claimant had been saying about the degree of impairment at the material times.

[240]Within the appeal letter Mrs Packwood accused the Respondent of discrimination; she repeated her threat to bring tribunal proceedings; and she accused Ms Congerton of coercive behaviour. Mrs Packwood placed reliance on the neurologist’s response whom she said confirmed the Claimant was fit and capable, and she placed reliance on the Claimant’s many sporting and leadership activities and achievements as well as being a Lance Corporal with the Army Cadet Force with various honours.

[241]The appeal was dealt with by Alan Peters the Deputy Village Director who conducted this as a review of the original decision. There was no established policy for this type of situation as the Claimant was an employee whose offer of a new role had been withdrawn. The appeal was conducted as a review on the papers without a hearing. Mr Peters approached the issue by considering two questions, the first of which was whether the Claimant could do the role safely and adequately, and whether this could be remedied by making reasonable adjustments.

[242]The criticisms of Dr Roddah were rejected, and Mr Peters noted the considerable discrepancy in the way in which the Claimant’s impairments had been described by her family which he said made it difficult to ascertain the true position, but that Mr Hawkins’ decision was based upon the totality of the medical evidence. Mr Peters said that the high ropes activity was inherently dangerous and it was a mistake to have allowed the Claimant on them in the first place. Mr Peters determined that the Claimant could not safely and adequately do the role even with potential adjustments in place, and this was on the basis that in his view there is no element of the role which was not safety critical. Accordingly, Mr Peters upheld the decision of Mr Hawkins and rejected the appeal.

[243]We again find that the reasons provided by Mr Peters were the true reasons for his decision, and we found his evidence to be honest and credible. Dismissal process

[244]The Claimant’s sickness absence commenced on 22 January 2023 and following the outcome of Mr Hawkin’s decision on 19 December 2023, the Respondent sought to engage with the Claimant to facilitate a return to work. This had been placed on hold pending the high ropes appeal.

[245]On 16 January 2024 Ms Congerton sought to arrange a formal meeting to discuss the Claimant’s absence with herself and John Sturzaker. On 16 January Mrs Packwood resisted holding the meeting, she first argued that it had been decided in May and agreed with Ms Rushbrook that the Claimant could move to an alternative department as it had been made very clear she could not return to her role in the CPU. We record that there was no agreement to move the Claimant to a new role as alleged, it was open to the Claimant to apply for a new role which is what she did. Mrs Packwood also said that a claim had been lodged with the Employment Tribunal, however this was not something Ms Congerton was aware of at the time of sending her invitation.

[246]Ms Congerton replied confirming the purpose of the meeting was to determine what adjustments were necessary to enable the Claimant’s return to work, and she clarified that Ms Rushbrook had not agreed for the Claimant to move to another department, rather she could apply for a role. Ms Congerton confirmed who would deal with the Employment Tribunal litigation and that she would not be discussing the claim.

[247]Mrs Packwood replied the same day on 19 January 2024 again accusing the Respondent of disability discrimination. Within her email Mrs Packwood said the Claimant was not resigning from her position and “we would appreciate it if you could stop trying to word your way around, and insinuating untruths in an attempt to find loop-holes to push her out lawfully. Since taking over this case your continued pressure regarding the CPU role has cross boundaries into coercive persuasion. We will not be bullied, or manipulated, into decisions that expose further distress and angst for Elise, on the basis that centre parks are reluctant to fulfil legal duties.” Mrs Packwood went on to allege that the CPU role was not the position originally offered to the Claimant, and she said due to the Respondent’s reluctance to mediate via ACAS, the status of the Claimant’s CPU role will be addressed by the employment tribunal.

[248]A formal invite letter was sent on 24 January by Ms Congerton. The invitation letter included the usual boiler plate wording about the statutory right to be accompanied by either a work colleague or a trade union companion to give the employee support, but they are unable to answer on their behalf but may address the hearing and confer with the employee. Mrs Packwood did not complain at the time that the letter did not say she could attend.

[249]Mr Sturzaker and Ms Congerton attended the meeting on 8 February however the Claimant did not attend. Ms Congerton wrote to the Claimant on 14 February on behalf of Mr Sturzaker giving her a further opportunity to attend. The Claimant was notified that no reason had been given for her earlier failure to attend. In these proceedings Mrs Packwood has argued that this was false and that there had been a reason for the non-attendance including in her email of 19 January 2024. Mrs Packwood was repeatedly asked to show the Tribunal where in this email (or others) she had told the Respondent that the Claimant would not be in attendance, however she was unable to do so and conceded that she had not said so in so many words. Whereas the correspondence from Mrs Packwood challenged the calling of the meeting, she had not in any way indicated nor given the impression that they would not be in attendance. Accordingly, Mr Sturzaker did not include a false allegation in his letter about the Claimant’s non-attendance, rather what he said was entirely true.

[250]The meeting was re-scheduled for 20 February 2024. The purpose of the meeting was again made very clear in the invitation letter which was to review the Claimant’s absence and to discuss a potential return to work. The letter again included the standard boiler plate wording about the statutory right to be accompanied.

[251]Mrs Packwood replied and asked for reasonable adjustments so that she could accompany the Claimant, and she asked for additional time to prepare for the meeting. This was agreed by Mr Sturzaker in the absence of Ms Congerton who was away at this time but due to return on 20 February.

[252]Whereas Mrs Packwood has alleged in these proceedings that the Respondent refused to allow her to attend meetings with the Claimant, it was clear to us that there was no refusal to allow Mrs Packwood to attend, it was simply a standard letter, and the Respondent had hitherto allowed her to attend so there was no reason to think that would not continue. When Mrs Packwood asked to attend the Respondent acceded to her request. This was a further example of Mrs Packwood inventing things to complain about as there was no refusal on the part of the Respondent.

[253]On 22 February Mrs Packwood indicated that the Claimant would be unavailable for the meeting as she would be away on a football trip to Turkey from 24 February to 13 March. We noted that the Claimant was on sick leave due to anxiety, and she had not applied for annual leave from the Respondent. When asked by Ms Congerton if they could conduct the meeting via Teams or telephone, Mrs Packwood rejected this due to lack of privacy, lack of carer support, not knowing the Claimant’s itinerary, and needing time to prepare.

[254]We found the issue of lack of privacy to be unreliable evidence from Mrs Packwood as she later sent a 359-page letter to the Respondent during the period the Claimant was in Turkey and her oral evidence to us was that she spoke to the Claimant frequently and had discussed and agreed this letter with her. We found that answer to be inconsistent given that Mrs Packwood said that the Claimant would not have sufficient privacy for a meeting via Teams or telephone, yet they had been able to agree such a large letter. We found the evidence to be unreliable – either the letter had not been agreed, or if it had been agreed then the privacy concerns were untrue. In either case Mrs Packwood again sought to mislead us and this again damaged her credibility before us.

[255]When questioning the Respondent’s witnesses Mrs Packwood suggested that the Claimant would have needed a carer with her. When it was put to her that she could have supported the Claimant on Teams as she would in person, Mrs Packwood relied upon privacy concerns which have already found were not genuine. It again appeared to the Tribunal that Mrs Packwood’s evidence was being made up on the spot.

[256]Mr Sturzaker again attempted to engage with the Claimant on 26 February and repeated the purpose of the meeting and he provided her with five timeslots over three possible dates and he said that if he did not hear from her by 28 February, he would assume that she did not intend to attend. Mr Sturzaker included six questions which he requested answers for by 4 March, and the Claimant was notified that if she did not respond a decision would be made in her absence which would likely be dismissal on notice. It appeared to the Tribunal that the Respondent was going to exhaustive lengths to engage with the Claimant before deciding to dismiss, but this was met without any success.

[257]On 29 February Mrs Packwood replied to state the response by 28 February was not possible and on 4 March she sent her letter of 359 pages responding to Mr Sturzaker who formed the view that it did not properly address the questions he had requested. The Claimant was given yet another opportunity of 48 hours in which to provide responses to those questions, to which Mrs Packwood sent a further reply on 5 March. Around this time Mr Sturzaker and Ms Congerton engaged with Ms Johnson (the Claimant’s line manager) and Ms Relf (the resourcing manager) for further information on the Claimant’s employment.

[258]On 10 March 2024 Mr Sturzaker wrote to the Claimant informing her that he had decided to terminate her employment on notice and he set out in detail all the reasonable adjustments he said the Respondent had made throughout her employment, and those identified and agreed in the May 2023 meeting to facilitate her return to work which had not transpired. It was noted that it was unclear if the Claimant was unfit for work in the CPU, but he also recorded the Claimant had no intention to return to that role and that she had failed to engage in any meaningful discussion, and the decision was based on the information available at that time. Mr Sturzaker further recorded that even if he had not made the decision for the reasons given, he would in any event have terminated the Claimant’s employment due to her continued unreasonable refusal to engage with the process. The Claimant’s employment ended on 10 March 2024, and she was paid two weeks’ notice.

[259]The Claimant was notified of her right to appeal but she did not do so. At the time of dismissal Mr Sturzaker was unaware that the Claimant had filed her ET1, but he was honest in his evidence as he said that he assumed from the discussions that it was heading that way. We make a finding that Mr Sturzaker believed that the Claimant was intending to file a claim for discrimination with the Employment Tribunal. Submissions

[260]The Respondent delivered oral submissions on 13 May 2025 which were supplemented by written submissions of 35 pages and a note on the law of 12 pages. We gave Mrs Packwood until the following day to provide her submissions as she is a litigant in person, and these were 56 pages. We have read both sets of submissions and have found them helpful. This is already a long judgment therefore the contents of the submissions are not repeated in detail, however a summary of each is set out below, and the key arguments are addressed in our conclusions. Respondent’s submissions

[261]We will start with the submissions from the Respondent. The Respondent urges us consider the unreliability of human memory and the desirability of relying upon contemporaneous documents. The first 21 pages of the Respondent’s 35 pages of submissions address the issue of Mrs Packwood’s credibility and reliability, and that of the Claimant also.

[262]The Respondent argues vigorously, and repeatedly, that the Claimant and Mrs Packwood have deliberately sought to mislead the Tribunal in a myriad of different ways, arguing that there are dozens of examples of non-disclosure and deliberate selectiveness of evidence, misrepresentations and untruths. These are described as a bare faced attempt to mislead the Tribunal. It is not necessary for us to repeat these concerns verbatim in this judgment. We have read those submissions and taken them into consideration. Nevertheless, we provide a summary of those concerns below. The failure to list each one of them does not mean that they were not considered.

[263]These alleged untruths related to the allegations about the Claimant’s suicidal idealisation and self-harming, and what the Respondent described as the absurdity of the case that a parent would allow their child to apply for the high ropes role if they had displayed such a condition. The Respondent complains that Mrs Packwood left out key chunks of the Care Act Assessment from her bundle on the basis that it was not relevant, and it refers to her failure to provide disclosure of other material such as the Personal Independence Payment documents (amongst many others referred to). Further complaints are made about the Claimant and Mrs Packwood’s failure to exchange witness statements, having been clear what was required, having agreed a date and time for exchange, then not having exchanged them whilst having been given extra time to do so. There are numerous other complaints about the conduct of proceedings.

[264]The Respondent says that the Claimant’s answers in evidence in chief appeared rehearsed and were delivered smoothly and without request for repetition, or explanation and without hesitation or even consideration, notwithstanding that some of Mrs Packwood’s questions were syntactically quite complex. The Respondent further says that the Claimant’s answers in cross-examination were also ready and smooth, and her ready comprehension and polished responses where in striking contrast to the descriptions of her in the medical documents before us, in particular the assertions within the Care Act Assessment that the Claimant could understand three or four words at a time, and that she finds it better to understand through pictures. The Respondent further reminds us that Mrs Packwood had also requested a BSL interpreter and for questions to be provided in advance, and had said that the Claimant can understand and process small amounts of communication if it is broken down with a mixture of sign language and voice over from a BSL interpreter. The Respondent says it did not observe any communication sign language or pictures between the Claimant and Mrs Packwood during the hearing.

[265]The Respondent argues that the Claimant demonstrated her own willingness to mislead, and it refers us to the health questionnaire completed on the guest iPad where she said that Mrs Packwood’s evidence was true, which the Respondent says the Claimant clearly knew this was not true. Similar reference is made to the Claimant saying she had applied for a cooking job which it says she knows is not true, nor that she was told or promised that she would be working alongside Ms Johnson. Similar observations are made about the Claimant’s alleged inconsistent answers about whether she had a support dog.

[266]As regards issue 5.2.3, the Respondent says it was obviously untrue that Mrs Packwood walked the Claimant to the CPU from day one, and we are referred to the contemporaneous documents in the bundle which contradict this.

[267]The Respondent reminds us of the driving restrictions on site and queries why Mr Packwood did not escort the Claimant as he was alleged to be both her registered carer and that of Mrs Packwood, and it argues that Mrs Packwood’s own asserted mobility issues had not prevented her walking the Claimant previously nor elsewhere. The Respondent refers us to all the steps it took to resolve the issue of escorting the Claimant, however that coincided with raising concerns with Mrs Packwood about her sending the photograph of her husband to Ms Johnson which the Respondent describes as a red rag to her. The Respondent refers to Mrs Packwood alleging the escorting issue caused the Claimant to self-harm whereas according to the contemporaneous documents it allegedly occurred later and was not due to the Respondent at all.

[268]The Respondent reminds us that Mrs Packwood appeared to agree that Mr Robb had escorted her and the Claimant on 21 January 2023, before then suggesting he was an imposter and that the Claimant’s details must have been shared - which the Respondent says was so unreasonable it was obviously a deliberate attempt to find a reason to complain. The Respondent denies that it shared the Claimant’s details and says that Mr Robb undertook the Claimant’s earlier risk assessment, it was Mrs Packwood who had shared the details when she spoke to Matilda, and the family had broadcast the Claimant’s disabilities in September 2023 in a newspaper article.

[269]The Respondent says it is absurd to suggest Mrs Packwood spoke to the “protection services department” at the Council who advised her to go to the media, and it says she is the one who delayed sending the Care Act Assessment to the Respondent. The Respondent says that all the adjustments were agreed in May 2023, and many of which were already in place yet the Claimant still refused to return to work as Mrs Packwood said the relationship had broken down (which the Respondent says was due to the photograph incident); the Claimant’s information had been shared (which the Respondent denies); and the role had been mis-sold (which the Respondent denies).

[270]As to issue 5.2.5, the Respondent says that there is a staff uniform for food hygiene rather than safety clothes; the Claimant was provided with the uniform; there was no complaint about it whilst the Claimant was working; and her later complaint was that it did not fit; and upon raising it with the Respondent a correct one was ordered.

[271]As regards the shoes, again the Respondent says that there was no complaint about this whilst the Claimant was working; Mrs Packwood confused tendonitis and tenosynovitis and there was no medical evidence as to causation; and the complaint is misleading as Mrs Packwood asked for the Claimant to be able to wear her own trainers once diagnosed with tenosynovitis; and when Mrs Packwood raised the issue of safety shoes she was assured that they would be provided upon her return to work.

[272]As to issue 5.2.6 concerning the bicycle and trailer, the Respondent says the allegation developed significantly over time and originally the concern was the weight of them which was appropriately responded to by Ms Johnson who offered help or substitution with other staff, to which Mrs Packwood reassured her the Claimant could do it. The complaint then changed into the vending machine being broken, to which Mrs Packwood then said the Claimant was fine doing it; and then the complaint became the Claimant was concerned about pushing the bike to which Ms Johnson said she would get someone else to do it, to which Mrs Packwood said the Claimant could do it.

[273]Following on, the Respondent says the complaint then significantly developed to the Claimant saying the job took her to an area of the Village where she was often approached, watched and spoken to, and was the focus of many disappointed people. The Respondent reminds us that the Claimant’s oral evidence to us was that there were people in her personal space and aggression, neither of which had never been raised before.

[274]As to issue 5.2.7, the Respondent says that the Claimant was doing lighter duties than the role entailed, and it was entirely correct for her colleague Harry to give her direction, and further she was not standing on ovens nor working at height, and once concerns were raised by Mrs Packwood, Ms Johnson then spoke to Harry. The Respondent also says it is perfectly normal in a workplace for a colleague to ask someone else to do a particular task.

[275]As regards the high ropes role at issues 4.1.2 and 5.5.1, the Respondent points out what it says is the absurdity of the Claimant’s position that she should be allowed to perform the high ropes roles involving potentially emergency rescues of highly stressed or agitated customers and safety critical activities in the treetops, given the contents of the Care Act Assessment, as well as the contents of the WhatsApp messages from Mrs Packwood to Ms Johnson, and also based upon the adjustments requested by Mrs Packwood for the Claimant prior to this hearing.

[276]The Respondent also says that the Claimant’s Personal Independence Payment application and any application by Mrs Packwood for a Carer’s Allowance would have been relevant and were subject to an order for specific disclosure which Mrs Packwood failed to comply with. The Respondent says that the Claimant and Mrs Packwood then sought to downplay these health conditions during the high ropes application process; it refers to the Claimant omitting information from the job application and the medical questionnaire; the downplaying of the impairments by Mrs Packwood when it was raised by Ms Rushbrook in HR; and then the representations to the DVLA (provided to the Respondent for the high ropes application) which omits anything about the Claimant’s impaired sense of safety.

[277]The Respondent alleged the Claimant’s representations to the DVLA on 17 February 2022 made no reference to the Claimant’s loss of feeling down one side of her body, however this must be an error on the part of the Respondent as that migraine incident did not allegedly occur until November 2022, which is after the DVLA application.

[278]The Respondent says that the Claimant and Mrs Packwood were aware she should not be allowed to train at height but they circumvented this when the Claimant completed the guest medical questionnaire on the iPad and then telephoned Mrs Packwood who directed her answers, the Respondent says this was no doubt to achieve the result they wanted, and it says neither of them alerted the trainers that the Claimant was not allowed on height training. The Respondent argues that Mrs Packwood lied on oath about this when she told us she did not know about the questionnaire until she discovered it in the SAR results, and it says the Claimant repeated this lie on oath in her own oral evidence to us.

[279]The Respondent argues that the family misrepresented the position to their GP by not disclosing the Claimant’s migraine in November 2022 which the GP then repeated to the neurologist, and they further misled the GP that the Claimant had worked on the high ropes in the past without problems. The Respondent says when the neurologist said the Claimant was able to undertake “a” new role it was not clear that they had digested what the particular role entailed. The Respondent draws to our attention Mrs Packwood’s argument that further medical evidence ought to have been sought, despite the wealth of information already available, and despite her also having previously complained about the delays.

[280]Turning to the meeting invites, the Respondent says Mrs Packwood knew perfectly well she had been allowed to attend meetings; she raised no issues between the two invites now complained about; and when she queried if she could attend she was immediately told yes. The Respondent describes as palpably absurd the allegation that Ms Congerton and Mr Sturzaker made false allegations that the Claimant and Mrs Packwood failed to attend the meeting without explanation on 8 February 2024. There is further criticism of Mrs Packwood’s argument that it was unreasonable to invite the Claimant to the meeting via Teams whilst she was abroad given Mrs Packwood said she wrote a 359 page letter with the Claimant’s authority at that time; the Claimant had been signed off from her role for a year; the Claimant had not asked permission to make herself unavailable for shifts or absence meetings; and moreover Mrs Packwood asked for this Tribunal hearing to take place by video and it had worked perfectly well.

[281]The Respondent refers to what it says is the sheer unreasonableness of the Claimant’s complaints about her dismissal, noting the family’s reasons for not allowing the Claimant to return to her kitchen porter role which it says were largely untrue, all of which was wholly unrelated to any disability. The Respondent says the Claimant was refusing to return to her role and that it should be completely obvious to any right minded person on the evidence available to the Respondent at the time, that the Claimant could not possibly be allowed to do the high ropes role and there was no other live application for any other vacancy, but even if there had been, the Respondent says it would still have been entitled to have dismissed the Claimant.

[282]In conclusion on the issue of credibility and reliability, the Respondent invites us to find that the Claimant and Mrs Packwood have repeatedly attempted to mislead the Respondent, and relevant professionals, and they now repeatedly attempt to mislead the Tribunal, and their evidence should not be accepted on any point that is in dispute.

[283]As regards the application of the law to the issues, the Respondent makes the following arguments. The Respondent argues that anything predating 3 October 2023 is out of time unless it was part of conduct extending over a period, and it says that the allegations relating to the kitchen role are plainly not part of conduct extending over a period until after 3 October 2023. The Respondent argues it is not just and equitable to extend time as the complaints were wholly unmeritorious; and there is no good reason for not having brought them much earlier; moreover, the Respondent is substantially prejudiced as memories have faded.

[284]The Respondent reminds us that disability is no longer an issue to be decided, and whereas it is prepared to accept relevant knowledge at all material times, it raises the possibility that Mrs Packwood’s representations to health professionals may have resulted in the Claimant being given one or more incorrect diagnoses.

[285]Dealing with the reasonable adjustments complaints first, at issue 5.2.3 the Respondent denies there was a PCP that the Claimant was denied a parental escort from 15 January 2023; it says Mrs Packwood only started escorting the Claimant on foot from 10 December 2022 which evolved into driving by the end of December; and that it was the driving which security then stopped a couple of weeks later. The Respondent says the Claimant then worked on 21 January 2023, she was able to walk with Mr Robb, and then she did not work in the kitchen again, and on 10 May 2023 it was confirmed that Mrs Packwood could walk the Claimant to the kitchen. The Respondent says that even if there was a PCP, the Claimant was not put to a substantial disadvantage, and there was no knowledge of disadvantage either.

[286]As regards issues5.5.1 and

5.5.2 which relate to adjustments for giving the Claimant the high ropes role or ground based aspects of that role, the Respondent reminds us the Claimant already had a substantive kitchen porter role for which all of the requested adjustments had been agreed, and many had already been in place. The Respondent argues that the recognised concept of medical redeployment as a reasonable adjustment means reemployment from a substantive role which the role holder can no longer do with adjustments, into an available vacancy, and we are referred to the Employment Code of Practice at paragraph 6.33 which refers to transferring the disabled worker to fill an existing vacancy where no reasonable adjustment would enable them to continue doing the existing job.

[287]The Respondent says there is no authority or principle that s. 20 Equality Act 2010 requires employers to transfer an employee to a different role (even if there is a vacancy) where they have a substantive role but have opted to apply for another role which is unsuccessful for medical reasons. The Respondent further argues that there was no other identified vacancy, and it describes the Claimant’s case as absurd on the basis that she plainly could not be allowed to do the high ropes role given the evidence and lack of confidence that it would be safe, and the fact she survived the height training on 7 June 2023, having circumvented the requirement not to take it, provided no assurance as to what might happen in a stressful situation. In addition, the Respondent argues the ground based aspects were also safety critical and rotation is required to avoid complacency.

[288]As regards issue 5.2.5 concerning the uniform and safety shoes, the Respondent argues there was no such PCP and that the Claimant did have a uniform and that the messages strongly suggest the Claimant had safety shoes, and there was no complaint until 15 January 2023. The Respondent says even if there was such a PCP the Claimant was put to no more disadvantage than any other individual, the Respondent had no knowledge of any disadvantage until 15 January 2023, and her last shift was 21 January 2023.

[289]As regards issue 5.2.6, the Respondent accepts there was a such a practice for taking products to the vending machine in housekeeping near the security lodge; it says the bicycle varied from weekend to weekend and was sourced from the Cycle Centre; and the allegation that rust prevented the saddle from being adjusted was not in evidence and should be treated with the utmost caution. The Respondent says the Tribunal may doubt that the Claimant was put to any more disadvantage than anyone else in their first job, and the earliest it would have known of this would have been 10 December 2022. The Respondent argues that assistance was provided with filling the vending machines; the requirement was waived when it had been raised; and then the Claimant was informed that she would never have to do it from May 2023.

[290]As regards issue 5.2.7 concerning not managing a colleague who was allegedly offloading their work, the Respondent denies there was any such PCP, and it says that when a concern was raised about Harry it was appropriately looked into, steps were taken, and the Claimant was not put any more disadvantage than anyone else in their first job.

[291]As regards issues 5.2.8 and 5.2.9, the Respondent accepts that being required to be medically fit to undertake the high ropes role, and being required to work at height in that role, were PCPs. The Respondent says the Claimant’s case is muddled and that the relevant substantial disadvantage should derive from the disabilities and not be defined by the Respondent’s treatment of the Claimant. The Respondent says that properly analysed, the substantial disadvantage is that the Claimant was less likely to be passed for the role or to be safe working at height because she has no safety awareness, is prone to autistic meltdowns and hemiplegic migraines if under stress; and she cannot communicate reliably. The Respondent accepts it had knowledge of the disadvantage.

[292]As regards issue 5.2.10, the Respondent denies that there was a PCP of only allowing a trade union representative or a colleague to accompany at formal meetings. Whereas the Respondent says it advised the Claimant of the statutory right, it agreed Mrs Packwood could attend when she asked to do so. The Respondent says that issues 5.3.4, 5.5.3 and 5.7 fall away as there was no such PCP, Mrs Packwood was permitted to accompany the Claimant, and the meeting failed to take place as the Claimant and Mrs Packwood failed to attend and made themselves unavailable.

[293]As regards issue 4.1.2, the Respondent accepts the Claimant’s application for the high ropes role was rejected and that it was unfavourable treatment. With respect to issue 4.2.2, the Respondent denies that the Claimant’s sickness absence arose in consequences of her disabilities as anxiety is not a disability relied upon; the little evidence available was that anxiety cases autistic meltdowns and not the other way around; and in any event there is a legitimate question whether the Claimant remained on sickness absence as she did not want to return to her kitchen role.

[294]With respect to issue 4.2.3 and whether the rejection for the high ropes role arose in consequence of the Claimant’s disabilities, the Respondent describes the formulation of the issue as elliptical and tautologous as it identifies the unfavourable treatment (the rejection) as the reason for the treatment, whereas the Respondent submits the issue ought to be reformulated as whether evidence of lack of safety awareness, and being prone to autistic meltdowns and hemiplegic migraines if under stress, arose in consequences of the Claimant’s disabilities.

[295]The Respondent suggests that the Tribunal, having now heard all of the evidence, may well suspect the family’s representations in the Care Act Assessment and elsewhere, as to the Claimant’s lack of safety awareness, autistic meltdowns, hemiplegic migraines, and poor communication ability, did not in truth arise in consequence of genuine disabilities but arose in consequences of the family’s wish to maximise benefits by exaggerating the impairments. Nevertheless, the Respondent says it took that evidence at face value at the time, but even if had not, it was required to consider that it was true and would be relevant for the doctor and decision makers to consider.

[296]The Respondent nevertheless concedes that the Claimant is disabled by reason of autism, and it therefore accepts at least some of the impacts should be regarded as arising in consequence of that condition. Accordingly the Respondent accepts that the rejection of the high ropes role was at least in part because of the Claimant’s lack of safety awareness and being prone to autistic meltdowns and hemiplegic migraines if under distress, at least some of this arose in consequence of the Claimant’s disabilities.

[297]As regard issue 4.3, the Respondent says that the rejection for the high ropes role was not because of the Claimant being on sickness absence, but it was at least in part because of the aforementioned lack of safety awareness, and the propensity for autistic meltdowns and hemiplegic migraines. As to whether this was a proportionate means of achieving a legitimate aim, the Respondent argues it was; it says it is a legitimate aim to keep colleagues and customers safe in that safety critical role; and it says the means were proportionate. The Respondent further refers us to the terms of the job description from 2023, noting that it had not been challenged by the Claimant, and as such the contents were not in dispute.

[298]The Respondent reiterates this was a safety critical role and that doing it incorrectly could result in fatality. The Respondent says it was obvious the role required safety awareness, resilience, and a high stress threshold and good interpersonal skills, and the evidence in the Care Act Assessment and elsewhere, meant the Respondent could not be confident that the Claimant would be safe, or that she could remain safe, and keep customers safe in any potential stressful situation, and further the Claimant already had a kitchen porter role which she could return to.

[299]As regards issue 4.1.3, the Respondent accepts the Claimant was dismissed and that this was unfavourable treatment. The Respondent again accepts that the rejection for the high ropes role arose at least partly in consequence of the Claimant’s disabilities. However, it is disputed by the Respondent that the dismissal was because of the rejection of the high ropes role, rather it says it was because the Claimant had a kitchen porter role; all reasonable adjustments had been put in place; the Claimant had been absent for more than a year; and there was no reasonable prospect of the Claimant returning. The Respondent adds that the Claimant had access to the open vacancies but refused unreasonably to engage in the absence management process.

[300]The Respondent says that even if the dismissal was in part because of the rejection for the high ropes role, this was nevertheless a proportionate means of achieving a legitimate aim. The Respondent repeats its reasons for rejecting the Claimant’s application for that role – namely the Claimant had been absent for over a year; the Respondent needed to know if it could recruit to replace her; the Claimant was refusing to return to her substantive role; and there was no indication she would do so in the foreseeable future; and she did not have any other live application – but even if she did there would be no obligation to maintain the employment pending the outcome of that.

[301]As regards the harassment complaint at issues 6.1.1. and 6.1.2, the Respondent repeats its earlier submissions that there was no refusal to allow the Claimant to be accompanied by Mrs Packwood. Moreover, the Respondent says there was no unwanted conduct; Mrs Packwood did not take issue with this at the time; the conduct did not relate to the Claimant’s disabilities; the conduct did not have the relevant purpose or effect; and there is no evidence the Claimant even knew about the correspondence anyway.

[302]With respect to issue 6.1.3, the Respondent says there was no process in May 2023 but rather a meeting to discuss adjustments to ensure a return to work, and the proposed meeting in February 2024 was for a different purpose which was a long-term sickness substance meeting. The Respondent says that Ms Congerton clarified that the Respondent had not agreed that the Claimant could move to an alternative department, rather she clarified it had been agreed she could apply for another role. The Respondent says this was a matter of common sense that the Claimant could make an application, but it does not mean she was entitled to remain in the Respondent’s employment indefinitely without returning to her kitchen porter role in the absence of securing a vacancy.

[303]The Respondent disputes that Ms Congerton said that the earlier process in May 2023 was not completed, however it accepts Ms Congerton said that HR had not previously offered the Claimant a move, and it accepts that that this was unwanted conduct. The Respondent disputes that this related to the Claimant’s disabilities; it disputes that it had the relevant purpose or effect; and it disputes that the Claimant would have known about it anyway.

[304]As to issue 6.1.4, the Respondent accepts Mr Sturzaker asserted he had no opportunity to contact the Claimant or Mrs Packwood to reschedule the meeting of 8 February 2024, and that he had not received a response. The Respondent says that this was completely justified because the Claimant and Mrs Packwood had given no indication they would not attend; the overwhelming likelihood was that they had deliberately not attended; and it was inevitable that Mr Sturzaker would comment that there had been no opportunity to contact them to rearrange it. The Respondent argues that this did not relate to the Claimant’s disabilities; and it says it did not have the relevant purpose or effect.

[305]As regards issue 6.1.5, the Respondent accepts Mr Sturzaker attempted to reschedule the meeting to a date when he knew the Claimant would be abroad, and it says this was reasonable as she had been absent a year and had not asked permission to make herself unavailable for work, and it was reasonable to think she could make time for the meeting while abroad.

[306]The Respondent says that the Claimant’s lack of privacy argument was absurd given Mrs Packwood gave evidence that the Claimant gave her instructions on a 359 page letter whilst abroad, and the Respondent draws to our attention that Mrs Packwood had asserted in evidence that it was unreasonable to expect them to answer six questions in the timeframe in which she and the Claimant had created a 359 page letter to the

[307]The Respondent denies that Mr Sturzaker attempted to pressure the Claimant, rather he required her to attend a meeting as he was entitled to do. The Respondent accepts that the requirement to attend an absence management meeting was unwanted conduct, but it disputes that it related to the Claimant’s disabilities, and it further disputes that it had the relevant purpose or effect.

[308]As regards the victimisation complaint, the Respondent accepts that the Claimant’s ET1 of 15 January 2024 was a protected act, it disputes that Mr Stuzaker and Ms Congerton made false allegations about the Claimant’s failure to attend the meeting on 8 February 2024 and stating that she failed to provide an explanation. The Respondent says that the observations were entirely accurate, and that only a thoroughly unreasonable person would regard a correct observation as a detriment. The Respondent accepts the Claimant was dismissed and it was a detriment, but it denies that it was because the Claimant had presented her ET1 or because the Respondent thought that she might do so.

[309]In conclusion the Respondent tells us the claim was not only manifestly misconceived but has been pursued with the aid of repeated misrepresentations, material non-disclosure, selective editing of evidence, and falsehoods. The Respondent invites us to make clear findings about these matters to set the record straight. Claimant’s submissions

[310]We now turn to the Claimant’s closing submissions. Mrs Packwood addressed the issue of credibility and argued she and the Claimant may have made human errors; they are not legally trained; and they did not have templates or legal experience to draw on. Mrs Packwood argued that there are only two professional bodies who can reach a sound and safe decision on the Claimant’s medical capability for the high ropes role – these are experts in the fields of neurology and psychology. Mrs Packwood explained that the autism spectrum is not linear, and many people talk of the “spiky profile” which she said means that an autistic person could be a leading expert in nuclear physics, but unable to remember to brush their teeth or to clean their clothes.

[311]Mrs Packwood thanked Mr Hawkins and Mr Peters for their honesty and for doing the right thing which she said had been refreshing. As regards issue 4.1.2 concerning rejecting the Claimant for the high ropes role which was alleged to be discrimination arising from disability, repeated criticisms were made of Ms Relf whom it was alleged had made her own medical assumptions about the Claimant’s ability to do the high ropes role. Mrs Packwood accused Dr Roddah of making the decision to withdraw the offer without seeking better expert advice, and repeated criticisms are made of Dr Roddah in the submissions that he had made unqualified specialist medical assumptions creating a false narrative about the Claimant’s capabilities.

[312]Mrs Packwood argued that the Claimant ought to have been redeployed as an alternative to the high ropes role, and that Mr Hawkins withdrew that offer without seeking expert medical advice, and Mr Peters had upheld the unfavourable treatment; failed to seek medical advice in addition to the neurologist’s report; and he failed to hold an appeal hearing and to redeploy the Claimant. Mrs Packwood argued that there had not been any legitimate aims of the Respondent.

[313]As regards the Claimant’s dismissal at issue 4.1.3, also alleged to be discrimination arising from disability, Mrs Packwood appeared on occasion to refer erroneously to the potentially fair reasons for dismissal for someone with two years’ qualifying service, and criticisms were made of Mr Sturzaker at the dismissal stage of failing to seek medical advice; failing to make reasonable adjustments; and failing to consider redeployment. Again, Mrs Packwood argued that there had not been any legitimate aim, and whereas we note that Mrs Packwood attempted to address the issue proportionality it appeared that the argument was that it would have been more proportionate to seek further medical advice.

[314]Mrs Packwood continues to complain about having referred the Claimant to Occupational Health, and she further asserts an inconsistency in the Respondent’s evidence with respect to redeployment. It is alleged that Ms Relf, Ms Rushbrook and Ms Congerton gave evidence that redeployment could not be considered without an application, whereas Mrs Packwood says that Mr Hawkins and Mr Peters said that a vacancy would need to be available but an application was not usual, and redeployment could be arranged between managers and HR.

[315]As regards issue 5.2.3 which was a reasonable adjustments complaint about not having a parental or carer escort to the workplace, Mrs Packwood maintained that the Respondent had denied this escort, and she argues it would have been reasonable to have allowed her to use her blue badge disabled access to drop the Claimant off and to avoid potential hazards subject to pedestrians.

[316]As regards issue 5.2.5 which was a reasonable adjustments complaint about the uniform and safety shoes, Mrs Packwood said that Ms Johnson could not confirm whether the Claimant was provided with a uniform or safety shoes, she argued that disabled kitchen staff without a uniform and safety shoes may be at a greater risk of harm in relation to safety awareness, and she said the Claimant was standing on top of the oven to clean the grills in the ceiling without safety shoes whilst wearing an oversized uniform she had borrowed from a colleague. Mrs Packwood said a reasonable adjustment would have been to prevent any kitchen staff from working without the appropriate uniform and safety shoes.

[317]As regards issue 5.2.6 which was a reasonable adjustments complaint about the bicycle and trailer, Mrs Packwood complained that the bicycle was rusty, that it was not possible to adjust the seat, and the trailer was heavy.

[318]As regards issue 5.2.7 which was the reasonable adjustments complaint about not managing a colleague named Harry, the complaint appeared to have developed into a criticism about having different people in charge on the shifts. Mrs Packwood suggested the Claimant did not know who was in charge, and she said it would have a disproportionate impact on anyone with special needs who would have to build trust, confidence and familiarity to have a recognised point of contact at work. It was alleged that often there were no managers there to manage Harry who was reportedly offloading his work onto the Claimant; he was using his mobile telephone or watching and playing football; and Mrs Packwood said this impacted the Claimant who was vulnerable and unable to speak up for herself and left her at risk of exploitation.

[319]As regards issue 5.2.8 which was the reasonable adjustments complaint about being required to be medically fit to undertake the high ropes role, much of the submission appeared to complain about the volume of Occupational Health referrals and not obtaining further expert advice. There were repeated allegations about unqualified specialist medical assumptions creating a false and unsafe narrative about the Claimant’s ability to perform the high ropes role. Mrs Packwood also alleged that there was an ableism across the company, and ignorance to want to learn, to be educated, to modernise and adapt, and there was a disinterest in widening the workforce to welcome diversity. Mrs Packwood said that the adjustment would have been to write back to a neurologist and psychologist and seek full expert advice to be able to make a sound decision.

[320]As regards issue 5.2.9 which was the reasonable adjustments complaint about being required to work at height for the high ropes role, Mrs Packwood said the Respondent could have split the groups working on the role as they would provide unique approaches to problem-solving and provide greater diversity and the Respondent should have separated the team into two smaller teams with one rotating and one being ground based.

[321]As regards issue 5.2.10 which was the reasonable adjustments complaint about allowing the Claimant to be accompanied at formal meetings, Mrs Packwood said it would have been a reasonable adjustment for the Respondent to have reviewed its correspondence which presumably was the reference to the letters with the boiler plate writing. It was unclear whether Mrs Packwood maintained her argument that the Respondent had refused to allow her to attend meetings with the Claimant, however the complaint appeared to have developed into a criticism about using the statutory wording within formal correspondence to employees, particularly those with disabilities as it was alleged that it could damage their confidence, and be very intimidating, and hostile.

[322]With respect to issues6.1.1 and

6.1.2 which are the harassment complaints regarding allowing the Claimant to be accompanied, the submission repeated earlier arguments under issue 5.2.10.

[323]The submissions did not add anything with respect to issue 6.1.3 which was the harassment complaint that Ms Congerton maintained that the earlier sickness absence meeting and process that took place in May 2023 was not completed and that HR had not previously offered the Claimant a departmental move.

[324]With respect to issue 6.1.4 which was the harassment complaint regarding Mr Sturzaker asserting that he had no opportunity to contact the Claimant or Mrs Packwood to reschedule the meeting of 8 February 2024, Mrs Packwood argued that Mr Sturzaker “is paying no relevance, duty of care of consideration to the decline in the Claimants wellbeing in the CPU environment and for us to have forced her would be negligent.” Mrs Packwood accused Mr Sturzaker of sending correspondence out of temper because he was not having matters dealt with at the speed he wanted.

[325]With respect to issue 6.1.5 which was the harassment complaint regarding rescheduling the meeting to a time when the Claimant was abroad, Mrs Packwood alleged that Mr Sturzaker persisted in his correspondence with a growing intensity of tone; she said he had been behaving in a passive aggressive manner; he had no duty of care or regard to the Claimant’s disabilities; and he appeared exasperated that the Claimant’s disabilities may require consideration. Mrs Packwood argued that Mr Sturzaker did not want to wait to have the meeting with the Claimant, she said he did not think it was reasonable to put any adjustments in place for her, and in seeking to return her to the CPU role having remedied the previous problems he displayed an appalling disregard. Similar criticisms were made of Ms Congerton by Mrs Packwood.

[326]As regards the victimisation complaints at issues7.2.1 and

7.2.2 about making false allegations about the 8 February 2023 meeting and dismissing the Claimant, Mrs Packwood focussed on the fairness and impact of the decision to dismiss rather than the issue of causation or whether the Claimant’s discrimination claim had influenced the treatment complained of. Law

[327]Disability is a protected characteristic under s. 6 Equality Act 2010. Section 39(1) and (2) Equality Act 2010 provides that an employer must not discriminate against a person in deciding to whom to offer employment, the terms of that employment, by not offering them employment, by not affording them access to opportunities for promotion, transfer or training, by dismissing them or subjecting them to a detriment. Section 39(3) provides that it is unlawful to victimise an employee by dismissing them or subjecting them to any other detriment. Section 40 provides that an employer must not harass an employee.

[328]The term “detriment” should be given its broad ordinary meaning, and a detriment will exist if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to their detriment – per Brightman LJ in Ministry of Defence v Jeremiah

[1980] QB 87

[1979] 3 All ER 83

. Burden of proof

[329]Section 136 of the Equality Act 2010 provides that 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. However, this does not apply if A shows that A did not contravene the provision.

[330]The burden of proof provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another - Hewage v Grampian Health Board

[2012] IRLR 870

[331]Guidance on the application of the burden of proof in discrimination complaints was provided in Igen Ltd v Wong

[2005] IRLR 258

: “(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of [the protected characteristic], since no discrimination whatsoever is compatible with the Burden of Proof Directive. (12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that [the protected characteristic] was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof....”

[332]This judgment refers to the law under the previous Sex Discrimination Act 1975 prior to the Equality Act 2010, however the decision of the Court of Appeal in Efobi v Royal Mail Group Ltd

[2019] ICR 750

confirms this guidance also applies under the Equality Act 2010.

[333]It is not sufficient for a claimant to merely to prove facts from which the tribunal could conclude that the Respondent “could have” committed an unlawful act of discrimination. Rather a claimant must establish a prima facie case of discrimination. As was held in Madarassy v Nomura International Plc

[2007] ICR 867

: “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.” [56]

[334]The court in Madarassy indicated that at the first stage the tribunal would need to consider all the evidence relevant to the discrimination complaint, such as evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like; and available evidence of the reasons for the differential treatment. The absence of an adequate explanation for differential treatment of the complainant is not relevant to whether there is a prima facie case of discrimination by the Respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant.

[335]At the first stage the tribunal should take into account all of the relevant evidence from both sides and usually disregard any explanation provided the Respondent. The consideration of the tribunal then moves to the second stage whereby the burden is on the Respondent to prove that it has not committed an act of unlawful discrimination. The Respondent may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If it does not, the tribunal must uphold the discrimination claim.

[336]As regards the “something more” needed to shift the burden of proof onto a Respondent, this will depend upon the facts of each case but it may include evidence of stereotyping, statistical evidence, lack of transparency or inadequate disclosure, or inconsistent explanations. However, mere unreasonable treatment by an employer “casts no light whatsoever” as to the question of whether an employee has been treated unfavourably - Strathclyde Regional Council v Zafar

[1998] IRLR 36

. This has also been followed by the Employment Appeal Tribunal in Law Society and others v Bahl

[2003] IRLR 640

where it was held that mere unreasonableness is not enough as it tells us nothing about the grounds for acting in that way. The matter of inferences is addressed further below.

[337]In Laing v Manchester City Council and others

[2006] IRLR 748

the EAT provided helpful guidance on the application of the burden of proof, and in particular the potential for a tribunal to move direct to the second stage where the evidence suggests that the employer had discriminated against the claimant: “75. The focus of the tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say, in effect, “there is a nice question as to whether or not the burden has shifted, but we are satisfied here that, even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race”.76. Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling tribunals in every case to go through each stage. They are not answering an examination question, and nor should the purpose of the law be to set hurdles designed to trip them up. The reason for the two-stage approach is that there may be circumstances where it would be to the detriment of the employee if there were a prima facie case and no burden was placed on the employer, because they may be imposing a burden on the employee which he cannot fairly be expected to have discharged and which should evidentially have shifted to the employer. But where the tribunal has effectively acted at least on the assumption that the burden may have shifted, and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever.

77. Indeed, it is important to emphasise that it is not the employee who will be disadvantaged if the tribunal focuses only on the second stage. Rather the risk is to an employer who may be found not to have discharged a burden which the tribunal ought not to have placed on him in the first place. That is something which tribunals will have to bear in mind if they miss out the first stage. Moreover, if the employer’s evidence strongly suggests that he was in fact discriminating on grounds of race, that evidence could surely be relied on by the tribunal to reach a finding of discrimination even if the prima facie case had not been established. The tribunal cannot ignore damning evidence from the employer as to the explanation for his conduct simply because the employee has not raised a sufficiently strong case at the first stage. That would be to let form rule over substance.”

[338]Very little discrimination today is overt or deliberate, and those accused of discrimination are usually unlikely to accept that they have done so, and possibly will be unlikely to recognise it in themselves. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances. In order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn - Nagarajan v London Regional Transport

[1999] IRLR 572

. If the prohibited grounds had a significant influence on the outcome, then discrimination is made out.

[339]The victim who complains of discrimination must satisfy the factfinding tribunal that, on a balance of probabilities, they have suffered discrimination falling within the statutory definition. This may be done by placing before the tribunal evidential material from which an inference can be drawn that the victim was treated less favourably than he or she would have been treated if he or she had not been a member of the protected class: - Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

[340]Comparators may constitute the aforementioned evidential material but they are no more than tools which may or may not justify the inference of discrimination on the prohibited grounds. Under s. 23(1), when a comparison is made there must be no material difference between the circumstances relating to each case. A comparison may be made with an actual comparator, or with how a hypothetical comparator would have been treated.

[341]Given that a tribunal may take into account a wide range of factors including circumstantial evidence, there may be cases where there is someone who, whilst materially different to a claimant, may be of assistance as an evidential comparator. They may, depending upon the circumstances and in conjunction with other material, justify a tribunal drawing an inference that a claimant was treated less favourably than he or she would have been treated. Inferences

[342]Whereas, as indicated above, mere unreasonable treatment alone tells us nothing about the grounds for acting in a particular way, discrimination may nevertheless be inferred where there is no explanation for unreasonable treatment. To be clear – that is an inference to be drawn from the lack of explanation rather than the unreasonable treatment itself.

[343]However, the inference may be rebutted by demonstrating that the alleged discriminator behaves equally unreasonably to everybody, or alternatively by way of evidence of a genuine non-discriminatory reason including unjustified albeit genuine reasons for acting as they have.

[344]Likewise, even where such an explanation is not accepted by a tribunal, the tribunal’s own fact finding may identify an obvious reason for the treatment, including a non-discriminatory reason - Bahl v Law Society

[2004] EWCA Civ 1070

[345]Findings of discrimination or discriminatory intent are serious matters, and as such, care should be exercised before drawing such an inference, not least where there have been a number of interactions between the parties but only a small number are alleged to be tainted by discrimination. The Court of Appeal in Bahl observed that “It would be astonishing for a 6 Paragraph 101, endorsing the approach of the Employment Appeal Tribunal at paragraph 97 of that earlier judgment. person subconsciously motivated by discriminatory considerations only to act in a discriminatory fashion in such a haphazard way.” [127] Reasonable adjustments

[346]Section 20 Equality Act 2010 provides: “Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A 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.”

[347]Section 21 Equality Act 2010 provides: “Failure to comply with duty(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.”

[348]In Environment Agency v Rowan

[2008] ICR 218

and General Dynamics Information Technology Ltd v Carranza

[2015] IRLR 4

, the EAT gave general guidance on the approach to be taken in the reasonable adjustment claims. A Tribunal must first identify: i. the PCP applied by or on behalf of the employer; ii. the identity of non-disabled comparators where appropriate; and iii. the nature and extent of the substantial disadvantage suffered by the Claimant in comparison with those comparators.

[349]Once these matters have been identified then the Tribunal will be able to assess the likelihood of adjustments alleviating those disadvantages identified.

[350]In Project Management Institute v Latif

[2007] IRLR 579

the EAT gave guidance as to how Tribunals should approach the burden of proof in failure to make reasonable adjustments claims. The burden of proof only shifts once the Claimant has established not only that the duty to make reasonable adjustments has arisen, but also that there are facts from which it could reasonably be inferred, in the absence of an explanation, that it has been breached.

[351]Therefore, the burden is reversed only once a potential reasonable adjustment has been identified. It will not be in every case that the Claimant would have to provide the detailed adjustment that would have to be made before the burden shifted, but “it would be necessary for the Respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not”. The proposed adjustment might well not be identified until after the alleged failure to implement it, and in exceptional cases, not even until the Tribunal hearing.

[352]The case of Lamb v the Business Academy Bexley UKEAT/0226/JOJ provides guidance as to what may amount to a PCP. It was held that the phrase is to be construed broadly, having regard to the statute’s purpose of eliminating discrimination.

[353]A provision can include any contractual or non-contractual provision or policy as well as potentially a one off decision - Starmer v British Airways Plc

[2005] IRLR 862

. A criterion means any requirement, prerequisite, standard, condition or measure applied whether desirable or unconditional. A practice means the employer’s approach to a situation if it does happen or may happen in the future. All that is necessary is a general or habitual approach by the employer - Williams v Governing Body of Alderman Davies Church in Wales Primary School

[2020] IRLR 589

. In Nottingham City Transport Ltd v Harvey

UKEAT/0032/12

Langstaff J referred to “practice” as having an element of repetition.

[354]This approach has been affirmed in Ishola v Transport for London

[2020] EWCA Civ 112

as the Court of Appeal held that the words “provision criterion or practice” suggest a state of affairs indicating how similar cases will be treated in the future. Whereas a one off act can amount to a practice if there is some indication that it would be repeated if similar circumstances arise in future, nevertheless a one-off flawed application of a process will not – Harvey [21] and also Davies v EE Ltd

[2023] IRLR 258

although here it was noted that the requirement for general applicability does not mean the PCP must be applied to the whole workforce.

[355]For the duty to arise, the employee must also be placed at a "substantial disadvantage" in comparison with persons who are not disabled. Therefore, a comparative exercise demonstrating substantial disadvantage is required. Substantial in this context means “more than minor or trivial” according to section 212(1) of the Act.

[356]The Tribunal must also be satisfied that the disadvantage would not equally arise in the case of someone without the employee’s disability - Newcastle upon Tyne Hospitals NHS Trust v Bagley

UKEAT/0417/11

[87]. There is no requirement in the Equality Act for a strict causation test linking the disadvantage caused by the PCP to the Claimant’s alleged disability. All that is necessary is that the Claimant prove facts from which a tribunal could infer that the PCP simply put the Claimant at either: i. a disadvantage compared to non-disabled people because they are a disabled person (rather than because of the disability); or ii. that because the Claimant was a disabled person, the PCP, whilst causing a disadvantage to everyone whether disabled or not, put the Claimant at a more severe disadvantage because they were a disabled person when compared to non-disabled people Sheikholeslami v University of Edinburgh

UKEATS/0014/17

[2018] IRLR 1090

[357]It is necessary for a reason connected with the employee’s disability to be the cause of the substantial disadvantage experienced - Hilaire v Luton Borough Council

[2022] EAT 166

. Whether an employee is placed at a substantial disadvantage depends on the actual facts, regardless of what the parties believe the facts to be. The employee does not have to show that the disadvantage arises because of their disability – Sheikholeslami.

[358]The next question is whether there were any reasonable steps which the Respondent could have taken to avoid the disadvantage which were not taken. There is no onus on a disabled person to suggest adjustments. The duty to consider making reasonable adjustments falls on the employer. In Cosgrove v Caesar and Howie

[2001] IRLR 653

, the EAT held that it was principally for the employer to explore the possibility of reasonable adjustments, not for the employee to suggest them, however if the adjustment to be suggested is wholly exceptional then it is for the employee to advance it. When assessing whether a particular step would have been reasonable, this involves considering whether there was a chance it would have helped overcome the substantial disadvantage, whether it was practicable to take it, the cost of taking it, the employer’s resources and the resources and support available to it.

[359]The Employment Statutory Code of Practice published by the EHRC does not impose legal obligations however it can be used in legal proceedings brought under the Equality Act 2010 which courts and tribunals must be take into account when it appears to them to be relevant to any question arising in proceedings. In the context of reasonable adjustments, paragraph 6.33 of the Code provides that: “An employer should consider whether a suitable alternative post is available for a worker who becomes disabled (or whose disability worsens), where no reasonable adjustment would enable the worker to continue doing the current job.”

[360]The question of whether a particular adjustment is reasonable is an objective test - Smith v Churchills Stairlifts Plc

[2006] ICR 524

. The Tribunal must examine the issue not just from the perspective of the Claimant but all the relevant factors including considering wider implications including the operational objectives of the employer - Udemma Lawrence v Birmingham City Council

UKEAT/0182/16/DM

. Ultimately, it is the Tribunal’s view of what is reasonable that matters. In assessing what adjustments are reasonable, the focus must be on the practical result of the steps which the employer can take, not on the thought processes of the employer when considering what steps to take - Bank of Scotland v Ashton

[2011] ICR 632

[361]As to whether an adjustment would be effective, this is a question to be answered on the evidence available at the time the decision was taken whether to implement it - Brightman v TIAA Ltd EAT 0318/19. If based on the employee’s health position at the time the employer’s decision was made, there was no realistic prospect of a particular adjustment being effective, then the employer would not become retrospectively liable for failure to make reasonable adjustments simply because the employee’s health unexpectedly improved so as to make the step effective. The question whether and to what extent the step would be effective to avoid the disadvantage will always be an important one to weigh in the balance - Secretary of State for Work and Pensions (Job Centre Plus) v Higgins

[2014] ICR 341

, EAT [59].

[362]In the judgment of the Court of Appeal in Paulley v First Group plc

[2014] EWCA Civ 1573

it was held that: “This is not a threshold test. The prospects of success in achieving the desired objective are to be weighed in the balance against the cost and difficulty of making the adjustment.” [44]

[363]In Griffiths v Secretary of State for Work and Pensions

[2017] ICR 160

, CA, it was held that “any modification of, or qualification to, the PCP in question which would or might remove the substantial disadvantage is in principal capable of amounting to a relevant step.” [29]

[364]It was held by the Supreme Court in First Group Plc v Paulley

[2017] UKSC 4

that that there must be a real prospect the step would have made a difference.

[365]In Romec v Rudham

[2007] All ER 206

the EAT held that if the adjustment sought would have had no prospect of removing the substantial disadvantage then it could not amount to a reasonable adjustment. However, if there was a real prospect of removing the disadvantage it may be reasonable. In Cumbria Probation Board v Collingwood

[2008] All ER 04

the EAT stated “it is not a requirement in a reasonable adjustment case that the Claimant prove that the suggestion made will remove the substantial disadvantage.”

[366]An adjustment will not be a reasonable one to take if it would be completely futile – Conway v Community Options Ltd

UKEAT/0034/12

[17, 19, and 22] and also Doran v Department of Work and Pensions

UKEATS/0017/14

[43].

[367]In Griffiths it was held: “I would accept that whilst a disabled employee may suffer disadvantages not directly related to the ability to integrate him or her into employment, the steps required to avoid or alleviate such disadvantages are not likely to be steps which a reasonable employer can be expected to take.” [68]

[368]Put another way, it may not be reasonable to expect an employer to take steps where the disadvantage was not directly related to the ability to integrate the disabled person into employment. The Court in Griffiths cited the judgment in O’Hanlon v Commissioners for Inland Revenue

[2007] ICR 1359

where that court had held: “The Act is designed to recognise the dignity of the disabled and to require modifications which enable them to play a full part in the world of work, important and laudable aims. It is not to treat them as objects of charity...” [69]

[369]A failure to consult does not of itself constitute a failure to make reasonable adjustments - Tarbuck v Sainsbury’s Supermarkets Ltd

[2006] IRLR 664

[71, 72].

[370]There is no objective justification defence available in respect of an employer's failure to make reasonable adjustments. The proposed adjustments are either reasonable or they are not. Discrimination arising from disability

[371]Section 15 Equality Act 2010 provides: “Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

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

[372]Guidance for Tribunals as to the correct approach to claims of discrimination arising from disability can be found in Pnaiser v NHS England

[2016] IRLR 170

: i. The tribunal must first identify whether there was unfavourable treatment and by whom. ii. The tribunal must determine what caused the impugned treatment, or what was the reason for it. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment. iii. Motives are irrelevant. iv. The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'.

[373]The starting point is that the disability must have the consequence of causing something (the “something arising”) and secondly the treatment alleged to have been unfavourable must have been because of that something arising - Basildon & Thurrock NHS Foundation Trust v Weerasinghe

UKEAT/0397/14/RN

[374]As to what constitutes “unfavourable treatment”, the Supreme Court in Williams v Trustees of Swansea University Pension and Assurance Scheme and anor

[2019] ICR 230

held that only a relatively low threshold of disadvantage is being needed. One could answer the question by asking whether the Claimant was in as good a position as others, however the complaint is not made out where a claimant has been treated more favourably but argues they should have been treated more favourably still. A comparator is not required to show unfavourable treatment.

[375]There must be a connection between the unfavourable treatment and the something arising from disability. It is insufficient for the disability itself to be relied upon, it must be the something arising in consequence of disability which is said to be the reason for, or the cause of, the alleged unfavourable treatment – Robinson v Department for Work and Pensions

[2020] EWCA Civ 859

. The test if therefore the same as for direct discrimination – Dunn v Secretary of State for Justice and HM Inspector of Prisons

[2018] EWCA Civ 1998

. However, the something arising from disability only needs to be an effective cause of the unfavourable treatment - Hall v Chief Constable of West Yorkshire Police

[2015] IRLR 893

. In other words, the something more must be more than a trivial influence on the treatment. There is no need that the alleged discriminator should have known that the relevant something arose from the employee’s disability - City of York Council v Grosset

[2018] EWCA Civ 1105

[376]As regards the second element of causation (“something arising”) this is entirely objective, it follows that if the employee is wrong in thinking that the something which was the reason for the treatment, arises in consequence of their disability, then the claim will fail - Force Ltd v Wood

UKEAT/0167/18

- the reason for the treatment must be for something arising in consequence of disability.

[377]Where a Claimant proves facts from which the Tribunal could conclude that there was discrimination arising from disability, the burden of proof will then shift to the Respondent to prove a non-discriminatory explanation, or to seek to justify the treatment as a proportionate means of achieving a legitimate aim. The burden of establishing this defence is on the Respondent. In Homer v Chief Constable of West Yorkshire Police

[2012] UKSC 15

it was held that what is required is: i. a real need on the part of the Respondent; ii. what it did was appropriate (rationally connected) to achieving its objectives; and iii. that it was no more than was necessary to that end.

[378]In Hardy & Hansons plc v Lax

[2005] ICR 1565

it was held that it is for a tribunal to make its own judgment as to whether the practice complained of was reasonably justified, and that there is no range of reasonable responses tests. Rather the more serious the disparate impact, the more cogent must be the justification for it. A measure may be appropriate to achieving the aim but to go further than is reasonably necessary in order to do so may make it disproportionate.

[379]It is also appropriate to ask whether a lesser measure could have achieved the employer’s legitimate aim – Essop and Naeem v Home Office (UK Border Agency) and Secretary of State for Justice

[2017] UKSC 27

. Harassment

[380]Section 40 Equality Act 2010 provides: “Employees and applicants: harassment (1) An employer (A) must not, in relation to employment by A, harass a person (B)— (a) who is an employee of A's;”

[381]Section 26 Equality Act 2010 provides: “Harassment (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (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; …”

[382]In Henderson v General and Municipal Boilermakers Union

[2016] EWCA Civ 1049

the court held that the question of whether the conduct complained of "is related to" the protected characteristic, will require a consideration of the mental processes of the putative harasser. A similar approach was endorsed by the court in Bakkali v Greater Manchester Buses (South) Ltd

[2018] ICR 1481

. Further in Unite the Union v Nailard

[2018] EWCA Civ 1203

the court held that harassment would be made out “if the mental processes of the individual decisiontaker(s) are found (with the assistance of section 136 if necessary) to have been significantly influenced, consciously or unconsciously, by the relevant protected characteristic.” [109]

[383]As to whether the conduct had the requisite effect, there are both subjective considerations – the Claimant’s perception of the impact on them – but also objective considerations including whether it was reasonable for it to have the effect on the particular claimant, the purpose of the remark, and all the surrounding context - Richmond Pharmacology Ltd v Dhaliwal

[2009] ICR 724

. Conduct which is trivial or transitory is unlikely to be sufficient.

[384]In HM Land Registry v Grant

[2011] EWCA Civ 769

it was held: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.” [47]

[385]In The Reverend Canon Jeremy Pemberton v The Right Reverend Richard Inwood, Former Acting Bishop of Southwell and Nottingham

[2018] EWCA Civ 564

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

[386]Section 27 Equality Act 2010 provides: “Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.”

[387]When assessing whether a Claimant has been victimised it is appropriate for a Tribunal to ask: i. did the alleged victimisation arise in any of the prohibited circumstances covered by the Equality Act 2010? ii. if so, did the employer subject the Claimant to a detriment? and iii. if so, was the Claimant subjected to that detriment because of having done a protected act, or because the employer believed that the Claimant had done, or might do, a protected act?

[388]The detriment relied upon by a Claimant must be linked to the protected act. Whereas conscious motivation on the part of the discriminator is not a necessary ingredient of victimisation – Nagarajan, it is still necessary to determine the reason for the treatment complained of - Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

, HL.

[389]A detrimental act in response to a complaint of discrimination will not constitute victimisation if the reason for it is not the complaint as such, but rather some feature of it which can properly be treated as separable - Martin v Devonshires Solicitors

EAT/0086/10

here it was held: “The question in any claim of victimisation is what was the “reason” that the respondent did the act complained of: if it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation; and if not, not. In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable.” [22]

[390]If the protected act has a “significant influence” on the employer’s decision-making, victimisation will be made out - Nagarajan. The word “significant” was considered by the Court of Appeal in Igen, where it was clarified that for an influence to be “significant” it does not have to be of great importance – is “an influence which is more than trivial.”

[391]The words “significant” and “trivial” were considered by the EAT in Villalba v Merrill Lynch and Co Inc and ors

[2007] ICR 469

, EAT where the EAT upheld a first instance decision that the protected act complaint was “only a very small factor, not a significant influence” [82] in the decision to remove that Claimant from her role therefore it did not amount to an act of victimisation. Time

[392]Section 123 Equality Act 2010 provides: “123 Time Limits(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable.

(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”

[393]The normal time limit must be adjusted to take into account the early conciliation process and any extensions provided for in section 140B Equality Act 2010.

[394]As noted in Dr Nicholas Jones v Secretary State for Health and Social Care

[2024] EWCA Civ 1568

: “As the EAT observed, strictly speaking section 123 does not set out a primary time limit that may be extended but a time limit of three months or "such other period as the employment tribunal thinks just and equitable". Where the Employment Tribunal decides that a period other than three months is just and equitable, that is the time limit. Nonetheless, the use of the term "primary time limit" for the three months period (with an extension for ACAS early conciliation where appropriate) is a useful shorthand.” [26] Conduct extending over a period

[395]As regards conduct extending over a period (which includes the existence or application of a continuing policy) this should be distinguished from a one off act which has continuing consequences – Barclays Bank Plc Kapur

[1991] 2 AC 355

; Sougrin v Haringey HA

[1992] ICR 650

. A number of what appears as discrete acts may provide evidence from which the existence of a discriminatory policy or ongoing state of affairs can be found thus amounting to conduct extending over a period – Cast v Croydon College

[1998] ICR 500

[396]In Hendricks v Metropolitan Police Commissioner

[2002] EWCA Civ 1686

, the Court of Appeal stated that the test to determine whether a complaint was part of an act extending over a period was whether there was an ongoing situation or a continuing state of affairs in which the claimant was treated less favourably. In that case the court held that a number of disparate acts by different individuals may evidence an ongoing state of affairs constituting conduct extending over a period. In Aziz v FDA

[2010] EWCA Civ 304

the court held that it would be relevant but not necessarily conclusive whether the same or different individuals are involved in the alleged incidents of discrimination over a period.

[397]In Hale v Brighton and Sussex University Hospitals NHS Trust

UKEAT/0342/17

it was found that the respondent’s decision to instigate disciplinary proceedings against the claimant created a state of affairs that continued until the conclusion of the disciplinary process.

[398]When determining if there was a continuing state of affairs the tribunal will consider what the acts were, the context and who was involved. A tribunal may decide that some acts form part of a continuing act, while others remain unconnected - Lyfar v Brighton and Sussex University Hospitals Trust

[2006] EWCA Civ 1548

. Extension of time

[399]It is for the Claimant to show that it would be just and equitable to extend time - Bexley Community Centre (t/a Leisure Link) v Robertson

[2003] EWCA Civ 576

. In that case the court held that tribunals should consider all the relevant circumstances including the delay and explanation for it and the respective prejudice to the parties.

[400]In Chief Constable of Lincolnshire Police v Caston

[2009] EWCA Civ 1298

[2009] IRLR 327

that court also recorded that the Tribunal has a wide discretion and that there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised.

[401]The court in British Coal Corporation v Keeble

[1997] IRLR 36

provided guidance to tribunals when considering whether to exercise its discretion to extend time on this just and equitable basis. This will include consideration of the length of and reasons for the delay, but might include the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued had co-operated with any requests for information; the promptness with which the claimant acted once they knew of the possibility of taking action; and the steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action.

[402]The court in Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

has confirmed that the correct approach is for the tribunal to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time. The court advised against using a mechanistic approach and using the examples in Keeble as some sort of checklist - the court in London Borough of Southwark v Afolabi

[2003] EWCA Civ 15

having already made clear earlier that it is not necessary to go through the checklist under s. 33 Limitation Act 1980 referred to in Keeble in every case, but a tribunal should not leave out a relevant factor.

[403]It was noted by the court in Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

[2018] ICR 1194

that Parliament had chosen to give the Employment Tribunal the widest possible discretion, and the Equality Act 2010 does not specify any list of factors to which the Employment Tribunal in instruction to have regard, nevertheless some factors are almost always relevant to consider and these are the length and reasons for the delay and also whether the delay has prejudiced the Respondent for example from preventing it from investigating the complaint whilst the matters were fresh. The failure to put forward a reason for the delay (or a good reason) does not automatically mean that time cannot be extended – rather it means that where an explanation is provided for the delay then it should be considered – this principle was recently endorsed by the court in Owen v Network Rail Infrastructure Limited

[2023] EAT 106

[404]When assessing forensic prejudice to a Respondent it is appropriate to consider not just the period of delay itself but also the length of time over which the conduct complained of took place - Concentrix CVG Intelligent Contact Ltd v Obi

[2022] EAT 149

[405]The merits of a claim may also be a relevant consideration when considering whether it is just and equitable to extend time - Kumari v Greater Manchester Mental Health NHS Foundation Trust

[2022] EAT 132

[406]Finally in Adedeji it was held: “Of course employment tribunals very often have to consider disputed events which occurred a long time prior to the actual act complained of, even though the passage of time will inevitably have impacted on the cogency of the evidence. But that does not make the investigation of stale issues any the less undesirable in principle. As part of the exercise of its overall discretion, a tribunal can properly take into account the fact that, although the formal delay may have been short, the consequence of granting an extension may be to open up issues which arose much longer ago… the assessment of whether there was a risk of evidence being less satisfactory because of the passage of time was for the Judge and cannot be challenged in this Court unless it was perverse. (I would add, while acknowledging that this does not appear to have been the Judge’s approach in this case, that the fact that the grant of an extension will have the effect of requiring investigation of events which took place a long time previously may be relevant to the tribunal’s assessment even if there is no reason to suppose that the evidence may be less cogent than if the claim had been brought in time.)” [32] Conclusions and decision Discrimination arising from disability (Equality Act 2010 section 15)

[407]Issue 4.1.1 was previously struck out.

[408]As regards issue 4.1.2, the Respondent did reject the Claimant’s application for this role. It is conceded that it was unfavourable treatment.

[409]As regards issue 4.1.3, the Claimant was dismissed by the Respondent. It is conceded that it was unfavourable treatment.

[410]As regards the things said to arise in consequence of the Claimant’s disabilities (issue 4.2) we have considered whether being required to be medically assessed (issue 4.2.1) and also being rejected for the alternative role (4.2.3) were things arising in consequence of the Claimant’s disabilities.

[411]In our view we consider that the legal issues have not been formulated clearly or correctly as it confuses the something arising with the unfavourable treatment. These two matters overlap, and it appears to us, and we agree with the Respondent, that the something arising from the Claimant’s disability was in fact evidence of lack of safety awareness and being prone to autistic meltdowns and hemiplegic migraines if under stress. Having read all the documents we were taken to, and having the benefit of oral evidence from Mrs Packwood, we agree that these were things arising from the disability.

[412]We record for completeness that we have serious concerns about the level of impairment described in the Care Act Assessment. It appeared to us that some of the information supplied by the Claimant’s parents had been exaggerated. We say this because it is so at odds with the Claimant’s other activities and achievements outside of work, how she presented whilst at work, how she presented to us in the hearing, but also due to the inconsistent and varying account of her abilities provided by Mrs Packwood which caused us to treat her evidence which considerable suspicion. In any event, the Respondent took the information at face value as it was absolutely entitled to as it was provided by Mrs Packwood. The Respondent was presented with evidence that the Claimant had a lack of safety awareness, she had the potential to suffer from autistic meltdowns and hemiplegic migraines, and had a highly impaired communication ability. This was information provided to the Respondent by Mrs Packwood.

[413]We do not find that the Claimant’s sickness absence arose in consequence of the Claimant’s disabilities (issue 4.2.2). The absence was due to anxiety, it was recorded as such in every fit note supplied. We were not given any evidence which demonstrated a causative relationship between the anxiety and the Claimant’s autism save that it can be interpreted from the Care Act Assessment that anxiety could cause the Claimant an autistic meltdown, but not the other way around.

[414]In addition, we were not satisfied that the Claimant’s anxiety prevented her from undertaking her substantive role as kitchen porter at the same time as she was arguing that she would be able to work in the high ropes role. It appeared to us far more likely that the absence was due to not wanting to return to her substantive position due to the breakdown in relations between Mrs Packwood and Ms Johnson who had complained to HR about the content of the messages from Mrs Packwood, including the unsolicited messages about dogs which also included a photograph of her husband. That seemed to us to be the real reason for the Claimant not wishing to return to that role.

[415]We now go on to look at the matter of causation (issue 4.3) and we ask ourselves were the things we have found to arise from the Claimant’s disabilities (evidence of lack of safety awareness and being prone to autistic meltdowns and hemiplegic migraines if under stress), the reasons for the unfavourable treatment? We are looking to see what was the cause of that treatment, specifically why was the Claimant’s high ropes application rejected, and why was she dismissed? Was the reason for any of this treatment because of something arising from the Claimant’s disabilities?

[416]We find that the reason for the rejection of the Claimant’s high ropes application was in part because of some of these things arising from the Claimant’s diagnosis of autism and her past disability of Rolandic epilepsy. The reasons given by the Respondent were honest and candid and the Respondent’s witnesses have explained that the decision was based upon concerns about the safety of the Claimant, colleagues and guests, if she were to perform this safety critical role.

[417]The burden of proof has shifted to the Respondent and we move on to consider whether this was a proportionate means of achieving a legitimate aim (issue 4.4). The legitimate aim here relied upon is to keep colleagues and customers safe in this safety critical role. We accept that was the genuine aim of the Respondent and it was an entirely legitimate one as the Respondent’s witnesses gave clear, consistent, detailed and plausible evidence about the potential risks involved with that role having taken advice from external experts which they do as a matter of routine. We noted that the Respondent clearly takes matters of safety incredibly seriously and engages with industry experts and consultants regularly for advice and guidance.

[418]As to whether the means adopted by the Respondent were proportionate (issue 4.5), we observe that the aspects of the job descriptions have not been challenged, this was without doubt a safety critical role and that making mistakes could result in injury or a fatality, the role requires safety awareness and resilience and a high stress threshold and good interpersonal skills, the contents of the Care Act Assessment in particular gave the Respondent serious concerns whether the Claimant would be safe or remain safe and keep customers safe in any potential stressful situation.

[419]We have not identified any other means of achieving that legitimate aim which would have been more proportionate or in other words would have had less of a discriminatory impact upon the Claimant, not least because she already had a substantive role she could return to. In terms of balancing the needs of the Claimant and Respondent, the balance weighs mostly heavily towards the safety critical aspects of the high ropes role, and keeping everyone safe, that includes the Claimant herself, the Respondent’s colleagues and its guests. The alternative of allowing the Claimant to undertake the role, thus ignoring the risks to safety, would have totally undermined the Respondent’s legitimate aim of keeping people safe.

[420]We record that we have given consideration to Mrs Packwood’s arguments about dividing up the teams so as to keep the Claimant on the ground, however this would again have undermined the Respondent’s legitimate aim of keeping people safe. Firstly, the roles needed to be rotated to stop people being becoming stagnant (or complacent in other words). Moreover there could at any time be an emergency necessitating staff taking part in a rescue at height in a stressful situation. Given the contents of the Care Act Assessment it appeared that the Claimant had impaired judgement with respect to safety and needed to be constantly reminded of things. Simply confining the Claimant to a ground based high ropes role would not have addressed these serious safety risks to the Respondent’s guests.

[421]In all the circumstances we find that the aim was legitimate and that means adopted entirely proportionate we dismiss this complaint about the decision to reject the Claimant’s high ropes role.

[422]As regards the Claimant’s dismissal (issue 4.1.3), we again look closely at the matter of causation, asking ourselves what was the reason for dismissal, and was it for a reason connected with the Claimant’s disabilities?

[423]We remind ourselves that we have found the things arising from the Claimant’s disabilities are evidence of lack of safety awareness and being prone to autistic meltdowns and hemiplegic migraines if under stress (this is the re-wording of issues4.2.1 and 4.2.3). We have not found the Claimant’s sickness absence (issue

4.2.2 ) to have been something arising from the Claimant’s disabilities.

[424]We do not find that the dismissal was because of the Claimant had been rejected for the high ropes role and this is because she still had a substantive kitchen porter role. All the requested reasonable adjustments had been put in place for the Claimant including at the March 2023 meeting.

[425]We find that reason for dismissal was because the Claimant had been absent for over a year, and there was no reasonable prospect of the Claimant returning to her substantive position as Mrs Packwood had repeatedly made clear. The Claimant had been given access by Mrs Rushbrook to other vacancies she could apply for if she so wished yet the Claimant had refused to engage in the absence management process. These were the true reasons and the only reasons for dismissal.

[426]The dismissal had nothing to do with anything arising out of the Claimant’s disability, we do not therefore need to go on to look at whether this was a proportionate means of achieving a legitimate aim and we dismiss the complaint noting that the burden of proof has not shifted.

[427]We do not need to go on to look at the issue of knowledge (issue 4.6) save to record for completeness that the Respondent conceded knowledge at the material times.

[428]The discrimination arising from disability complaints are dismissed in full. Reasonable Adjustments (Equality Act 2010 sections 20 & 21)

[429]As regards issue 5.1 the Respondent has conceded disability.

[430]Issues 5.2.1, 5.2.2 and 5.2.4 were not permitted to proceed as the amendments were refused on 28 January 2025.

[431]As regards issue 5.2.3 concerning not being allowed to have a parental or carer escort across the site from the car park, we find that there was no such PCP. Mrs Packwood only started escorting the Claimant by foot from around 10 December 2022, and some point later they were driven by Mr Packwood at the end of December to the Claimant’s place of work before they were prevented by security from driving approximately two weeks later. Mrs Packwood raised this on the 15 January 2023. Ms Malin proposed the Claimant be driven to the disabled parking space in the guest car park and then come down on foot which is what the Claimant and her family had been doing up until mid-December.

[432]As Mrs Packwood continued to remonstrate, Ms Malin proposed that Mr Robb could collect the Claimant which is what he did on 21 January which was the next shift. Moreover, Mrs Packwood arrived to collect the Claimant that afternoon and she was escorted down in a vehicle with another colleague. Accordingly, the factual premise of the allegation has not been made out. Mrs Packwood was able to escort the Claimant on that occasion after which the Claimant never returned to work again, and in any event on 10 May 2023 whilst off sick the Respondent agreed the Claimant could be escorted.

[433]We dismiss this complaint as there was no such PCP.

[434]As regards issue 5.2.5 regarding not supplying safety clothes, we do not find that there was such a PCP. Firstly, there were no safety clothes at all, there was a requirement to wear a uniform for hygiene reasons as the Claimant worked in a diner.

[435]The Claimant was provided with a uniform albeit at certain times it was one size too big for her. It was not demonstrated before us that the Respondent had a practice of not supplying safety clothes. However, even if there was such a PCP, the Claimant was at the same disadvantage as anybody else would have been as Mrs Packwood said it would put her at risk if she was required to clean the vents. The Claimant was not required to clean the vents in any event, but even if she was so required, she would have been at the same disadvantage as anyone else without her disabilities.

[436]We also find that there was not a PCP of not providing safety shoes. It was clear to us that Mrs Packwood had raised on the number of occasions that the Claimant was still awaiting shoes, and the fact that she asked about shoe sizes later, and the Claimant’s request to wear her own shoes rather than boots (as opposed to referring to safety shoes), is indicative to us that they were not received by the time the Claimant went off sick on 22 January 2023.

[437]The Respondent was unable to persuade us that these had been provided, and when. However, we were not persuaded that there was a practice of not supplying safety shoes as the Respondent replied in May 2023 to confirm that these would be provided upon the Claimant’s return from sick absence.

[438]However, even if there was such a PCP we have not been persuaded that the Claimant was put to a substantial disadvantage. The Claimant has asserted (issue 5.3.2) that the disadvantage was that she faced increased vulnerability however we are not satisfied that occurred. The Claimant was not required to stand at height to work on the vents, and we could not identify any disadvantage to the Claimant beyond that which others without her disabilities would have experienced. Had there been such a PCP then the Claimant would have been at the same disadvantage as anyone else without her disabilities due to this failure.

[439]We dismiss this complaint as there was no such PCP.

[440]As regards the PCP of providing a bicycle with a child’s trailer to transport vending refills around the site (issue 5.2.6), this complaint is particularly hard to follow and made little sense due to the evolving and changing nature of the allegation.

[441]It was part of the role of the kitchen porter to stock the three vending machines. The Respondent provided a bicycle and trailer for that purpose. The bicycles were sourced weekly from the cycle shop, and they were universal bicycles. Whereas we find that the provision of the bicycle and trailer for use with the vending machines was a PCP, we do not find that PCP includes using a rusty bicycle to do so. This was a brand-new allegation raised by the Claimant in oral evidence without having produced a witness statement, and this was not raised before, and we do not find that the bicycle or the trailer were unsuitable.

[442]Leaving aside the ever changing nature of the PCP, it was not explained to us why the bicycle or the trailer created a substantial disadvantage to the Claimant in connection with her disabilities of autism and historic Rolandic epilepsy. We did not find that there was any aggression or invasion of space by the Claimant’s colleagues when she went to one of the vending machines, this was brand new evidence, and we were not satisfied that it happened.

[443]Moreover, we note that each and every time Mrs Packwood raised an issue about this task Ms Johnson told Mrs Packwood and the Claimant that she did not have to do it, she would send someone else to do it or to help her, or the task did not need to be completed. Each time Mrs Packwood replied that the Claimant wanted to do it, and she would push through. We do not find that the application of this PCP put the Claimant to a substantial disadvantage in connection with her disabilities. It is our finding that the Claimant was not put to any disadvantage beyond that which anyone else without her disabilities would have experienced either with this task.

[444]We dismiss this allegation on the basis that the Claimant was not put to a substantial disadvantage.

[445]As regards the allegation of not managing Harry who it is said was offloading work to the Claimant (issue 5.2.7), the factual premise of the complaint was not made out.

[446]We do not find that Harry was offloading his work to the Claimant, and we do not find that the Respondent was not managing him. Mrs Packwood raised a small number of concerns about Harry which Ms Johnson investigated and spoke to him. It is quite normal for colleagues in an environment such as this to share tasks and to sort out between them who does what. We noted that the Claimant was only performing in the region of 50% of her workload in any event.

[447]Whereas it is possible that Harry watched or played football whilst at work, that of itself does not mean his work was offloaded onto the Claimant, and we do not find that the Respondent was not managing him – the opposite appeared to be true as Ms Johnson spoke to him after Mrs Packwood raised her concerns.

[448]Mrs Packwood has sought to change the premise of the complaint in her closing submissions to a complaint about not knowing who was in charge. We note that this was a small team of three people working those shifts with tasks on a board, and accordingly the Claimant would have known who was in charge out of the three of them, therefore this would not have amounted to a PCP even if such a complaint had been advanced earlier.

[449]We dismiss this allegation as no such PCP was applied.

[450]The Respondent accepts that there was a PCP of being required to be considered medically fit to undertake the high ropes role (issue 5.2.8) and there was a PCP of being required to work at height in that role (issue 5.2.9).

[451]It is impossible for the Tribunal to be confident as to the issue of substantial disadvantage because Mrs Packwood gives different accounts of the Claimant’s impairments to different people depending upon the outcome she is seeking for the Claimant. Nevertheless, the Respondent has conceded the issue of substantial disadvantage because it says the Claimant was less likely to be passed for the role or to be safe working at height because she had little or no safety awareness, she was prone to autistic meltdowns and hemiplegic migraines if under distress, and she cannot communicate reliably. In addition, the Respondent accepts that it had knowledge of the disadvantage. We therefore move onto consider the proposed adjustments.

[452]The first proposed adjustment of simply allowing the Claimant to take up the role (issue 5.5.1) would not have been reasonable given the range and level of impairments identified in the Care Act Assessment. There would be a lack of any assurance as to the safety of the Claimant, her colleagues and guests should the Claimant suffer from a health episode at height, including a hemiplegic migraine which could result in paralysis. There was a very high degree of likelihood of guests becoming stressed, anxious or agitated whilst in the air (and potential for aggression or shouting) and this would present a risk to the Claimant’s health by triggering a hemiplegic migraine.

[453]Moreover, the Claimant’s lack of, or impaired safety awareness or judgement, together with what had been expressed to be her communication difficulties (in the Care Act Assessment) would also have created serious risks as to safety of the Claimant, of her colleagues and of the Respondent’s guests.

[454]We noted that the Claimant was briefly able to undertake part of the training in the air without incident in June 2023 however that did not provide any assurance as to what might happen in a stressful situation therefore it was not a realistic scenario. It is our decision that the proposed adjustment would have been futile and it was not a reasonable step to take.

[455]As regards allowing the Claimant to undertake aspects of the high ropes role at ground level (issue 5.5.2), again this would not have been a reasonable adjustment to have made for two reasons. Firstly, there are safety critical aspects to the role, and given the Claimant’s level of impairments, with respect to judgement as to safety and her ability to communicate and to comprehend only three or four words at a time, that would have presented a very high degree of risk for guests and potentially colleagues. Mrs Packwood argues that none of these problems would have emerged as the role would have been scripted. We find that the opposite to be the case, the role would have been far from scripted, any of several unplanned situations may emerge and cause the Claimant to feel stressed and in turn trigger a hemiplegic migraine with all of the symptoms that flow from that including paralysis.

[456]Secondly, it was the unchallenged evidence of the Respondent that all the roles must be rotated to limit the potential for complacency. Similarly, those people in ground-based roles could be required at any moment to climb up in the air to conduct a rescue or an evacuation. It follows that it would not have been a reasonable adjustment to have given the Claimant ground-based duties only. This would have created a considerable amount of risk for the Claimant, her colleagues and the guests were the Claimant to experience a health episode. It is again our decision that the proposed adjustment would have been futile and it was therefore not a reasonable step to take.

[457]We dismiss the complaints at issues 5.2.7 and 5.2.8 as the proposed adjustments would not have been reasonable, and no other adjustments which would have been reasonable have been identified.

[458]As regards the final PCP of only allowing a trade union or colleague to accompany employees at formal meetings (issue 5.2.10) there was no such PCP. Mrs Packwood had been allowed to accompany the Claimant to several formal meetings including a 10 May 2023 meeting as well as the initial interview and also Occupational Health referrals. Whereas the invitation letter from 24 January mistakenly used the standard boiler plate wording, once this was raised by Mrs Packwood the Respondent immediately confirmed that she could attend the meeting. Mrs Packwood was not excluded from any meetings at all by the Respondent and as such the PCP did not exist.

[459]We dismiss the complaint as no such PCP was applied.

[460]All of the reasonable adjustment complaints fail and are dismissed, and we note that the burden of proof did not shift to the Respondent. Harassment

[461]The factual premise of the first two allegations of harassment (issues6.1.1 and

6.1.2 ) are not made out because Ms Congerton did not refuse to allow anyone other than a trade union representative to attend the formal meeting, nor did she refuse Mrs Packwood to attend the meeting either. Mrs Packwood had attended previous formal meetings, and when she raised this as an issue it was remedied quickly. The reference in the letter to who could be invited was simply boiler plate wording and repeated the statutory right to be accompanied.

[462]There was no refusal therefore we dismiss the first two allegations of harassment.

[463]As regards Ms Congerton and maintaining the earlier sickness absence meeting and process from May 2023 was not completed and that HR had previously not offered the Claimant and departmental move (issue 6.1.3), it should be noted that there was no sickness absence process. Rather there had been a meeting to discuss adjustments to facilitate the Claimant’s return to work and there is no suggestion that Ms Congerton and ever described this as a process or maintaining it had not been completed. The meeting listed for 8 February 2024 had a different purpose which was to discuss long-term sickness absence.

[464]Therefore, the first part of the factual premise has not been made out. As regards a departmental move it is correct, Ms Congerton confirmed that the Claimant had not been offered a departmental move, rather she clarified that the Claimant had been told she could apply for another role. That was simply a statement of fact we do not find that this was unwanted conduct.

[465]However, even if Ms Congerton’s email did amount to unwanted conduct, there was absolutely no relationship between that and either of the Claimant’s disabilities. Ms Congerton was simply stating the facts as to what had been discussed. An examination of the mental processes of Ms Congerton lead us to the conclusion that the Claimant’s disabilities had nothing whatsoever to do with the treatment complained of, Ms Congerton was simply repeating that there had not been any agreement to move the Claimant.

[466]We dismiss this complaint as the conduct was not unwanted and in any event it did not relate to the Claimant’s disabilities.

[467]As regards Mr Sturzaker asserting that he had no opportunity to contact the Claimant or Mrs Packwood to reschedule the meeting of 8 February 2024 (issue 6.1.4), the factual premise is made out in so much as Mr Sturzaker did assert that neither of them had given any indication they would not be in attendance. Mrs Packwood was asked in the hearing to show us within her email where it was, she said she was not coming and she confirmed that she had not done so in so many words.

[468]We do not find that this was unwanted conduct. It was simply a case of Mr Sturzaker reciting the fact that he had not heard from the Claimant. Even if this was unwanted conduct, there is no relationship between this and either of the Claimant’s disabilities, and an examination of the mental processes of Mr Sturzaker demonstrate that his intention was simply to invite the Claimant to attend a sickness absence meeting to discuss the Claimant’s ongoing (and long) absence due to anxiety.

[469]We dismiss this complaint as the conduct was not unwanted, and in any event, it did not relate to the Claimant’s disabilities.

[470]As regards Mr Sturzaker seeking to reschedule the meeting of 8 February to date when he knew the Claimant would be abroad and pressuring her to attend remotely, it is accurate that Mr Sturzaker did attempt to schedule a meeting the Claimant was overseas however it should be noted the Claimant was on long-term sickness absence and had not applied for annual leave and she was contractually required to attend meetings with her employer that was an entirely reasonable thing to have expected her to do. We do not accept that pressure was applied by Mr Sturzaker.

[471]We did not find that this was unwanted conduct as it was inevitable that an employer would wish (and is entitled to ask) to meet an employee on long term sickness absence to discuss their return to work. Nevertheless the Respondent has conceded that this was unwanted conduct therefore we will look at the issue of causation.

[472]We find that there was no relationship at all between the decision to hold the meeting and the timing (when the Claimant was abroad) and either of the Claimant’s disabilities. An examination of the mental processes of Mr Sturzaker show that he was seeking to engage with an employee who had been absent for so long and whose mother had repeatedly expressed that they did not wish to return to their substantive role. The trigger was simply a desire to move forward because the Claimant had been absent for so long, and to find a solution because the Respondent needed to find a replacement for the Claimant if she was not returning to her role. The Claimant’s disabilities were of no influence on the mental processes of Mr Sturzaker.

[473]We dismiss this complaint as the conduct did not relate to the Claimant’s disabilities.

[474]We therefore dismiss all the allegations of harassment related to disability, and we note that the burden of proof did not shift to the Victimisation

[475]The Respondent has conceded that the Claimant’s ET1 was a protected act (issue 7.1.1). Mr Sturzaker was not aware of the Claimant’s ET1, but he has been honest in his evidence and explained that he considered it likely that a claim would be issued. Mrs Packwood had made repeated references to discrimination, and we have found that Mr Sturzaker was under the impression that a discrimination claim would be forthcoming.

[476]We do not find that Mr Sturzaker or Ms Congerton made false allegations about the Claimant failing to attend a meeting on 8 February and not providing an explanation (issue 7.2.1). We have already addressed this matter at issue 6.1.4 above. The comments of Mr Sturzaker were entirely true. This was not a detriment, it was a statement of fact. The Claimant did not attend the meeting, and Mrs Packwood could not show us in the hearing where she explained that they would not be in attendance.

[477]We dismiss issue 7.2.1 as the factual premise has not been made out.

[478]As regards issue 7.2.2 the Claimant was dismissed. This was a detriment. Mr Sturzaker was under the impression that a claim for discrimination would be coming as Mrs Packwood routinely complained about disability discrimination and she threatened to bring legal proceedings more than once. We have applied the statutory burden of proof which now falls to the Respondent to provide a non-discriminatory reason for the treatment.

[479]We accept fully Mr Sturzaker’s evidence as he was honest and credible before us and we believed him. We find that the reasons given in the dismissal letter were the genuine reasons, and the only reasons for terminating the Claimant’s employment, which was due to the length of her sickness absence; the clear indication that she was not coming back to work; and the Claimant’s failure to engage in any meaningful way in returnto-work discussions.

[480]The Claimant’s ET1 or the prospect of her issuing an ET1 in which she would complain of discrimination, played no part whatsoever in the decision to dismiss the Claimant. We do not find that the reason for the Claimant’s dismissal was because Mr Sturzaker believed that the Claimant had done or may do a protected act.

[481]We dismiss issue 7.2.2 as the treatment was not because the Claimant had done a protected act, nor was the treatment because the Respondent thought that she may do a protected act.

[482]All of the complaints fail and are dismissed. We find that each and every complaint which has been brought in these proceedings was totally without merit. Time

[483]As all the Claimant’s complaints have been dismissed, it is unnecessary for us to deal with the issue of time to any degree, however for the sake of completeness we briefly summarise our findings on time below.

[484]ACAS Early Conciliation took place between 17 and 30 November 2023. The ET1s were filed on 15 January, 11 March and 24 March 2024. Anything which occurred before 3 October 2023 is potentially out of time unless it was part of conduct extending over a period. This date has been calculated by going back three months from the date of the ET1, and then taking off a further 12 days for the time spent in ACAS Early Conciliation. Three months and twelve days before 15 January 2024 is 3 October 2023.

[485]The Claimant last worked her kitchen porter role on 21 January 2023, and the Respondent met with the Claimant on 10 May 2023 and confirmed that all the requested adjustments would be in place for her, and we agree that any delay was due to Mrs Packwood not providing a copy of the Care Act Assessment on time. The Claimant repeatedly expressed no intention of returning to the kitchen and accordingly the complaints about the kitchen porter role are not capable of forming part of conduct extending over a period. Accordingly, all of the complaints which relate to the kitchen porter role have been brought out of time.

[486]We find it would not have been just and equitable to extend time. Leaving aside that the complaints were wholly unmeritorious and have been dismissed, Mrs Packwood threatened to bring legal proceedings since January 2023 and delayed doing so. We have noted that some prejudice in this delay was caused to the Respondent as it impacted the memories of Mr Robb and Ms Johnson, by way of one example with respect to the provision of safety boots.

[487]The complaints as regards the rejection of the high ropes role and the Claimant’s dismissal were brought within time but have been dismissed in any event.

[488]We repeat our gratitude expressed in the hearing, to all the witnesses who attended on both sides, to the Claimant, Mrs Packwood, Ms Hodgetts and Mr Blackhall for their assistance in this matter. Approved by: JUDGMENT having been sent to the parties and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:

[1]This hearing was listed to consider the Respondent’s application dated 15 September 2025 for costs against the Claimant. The application is brought under Rules 74(2(a), 74(2)(b), and 74(3) Employment Tribunal Rules of Procedure 2024.

[2]At the start of this hearing I read out a summary of the relevant law on costs in this jurisdiction in order to assist the Claimant as a litigant in person.

[3]By way of ET1s dated 15 January, 11 and 23 March 2024, the Claimant, represented by her mother, Mrs Packwood, brought complaints of discrimination arising from disability, failure to make reasonable adjustments, harassment related to disability, and victimisation and other complaints.

[4]Mrs Packwood has authored all the correspondence and conducted all the claim on her daughter’s behalf. The Tribunal was concerned to establish if these proceedings were being brought with the Claimant’s consent given that the Claimant had not authored any of the documents. The Claimant was repeatedly asked by me in the liability hearing if she wished to continue, and she confirmed that she did. The Claimant has confirmed in this costs hearing that Mrs Packwood had been acting on her behalf with her consent throughout and continues to do so.

[5]The Claimant has several impairments. She has been diagnosed with autism; she experiences hemiplegic migraines; delays in speech, language and understanding; she experiences anxiety; and has sensorineural hearing loss and chronic bowel dysfunction.

[6]By judgment dated 9 July 2025 all of the complaints failed and were dismissed; the factual premise of many of the allegations had not been made out; and the burden of proof only shifted with respect to one allegation of discrimination arising from disability; and a number of the alleged PCPs for the reasonable adjustments complaints did not exist at all.

[7]At the crux of this case is the Claimant’s wish to be appointed to a role on the high ropes, a safety critical role, 10 metres in the air. The Claimant already had a substantive role in the Respondent’s canteen however she went on sick leave in January 2023 and never returned to work.

[8]Centre Parcs, as the Respondent in this case, had complied fully with its duties towards the Claimant under the Equality Act 2010, in many instances going beyond what the law required, and we noted that in May 2023 it acceded to every single one of the adjustments requested by Mrs Packwood for the Claimant to go back to work.

[9]Upon this concession, the Claimant through Mrs Packwood still refused to return to work and insisted upon appointment to a role she knew that she was unsuitable to perform on the high ropes – unsuitable we record due to her risk of suffering hemiplegic migraines and seizures, which could have caused a serious risk to her own safety 10 metres in the air, let alone to her colleagues and to the Respondent’s guests.

[10]We have already found that the Claimant, through Mrs Packwood, was in breach of numerous Tribunal directions, including with respect to general disclosure, specific disclosure, the bundle, and witness statements. Much of the information provided to us by Mrs Packwood was disclosed either late, incomplete or presented in a misleading way in her own hearing bundle which was unreliable and unusable.

[11]We recorded that we could not form a confident view of the Claimant’s level of impairment due to Mrs Packwood’s propensity to give differing accounts to different people depending upon the outcome she was seeking. This is all set out in the liability judgment, and it is not duplicated here. Nevertheless, we repeat our earlier finding that a diagnosis of autism is indicative of some level of impairment.

[12]At the start of the costs hearing we were provided with the final hearing bundle of 2,561 pages, the preliminary issues bundle of 198 pages, and the costs bundle of 232 pages which included the Respondent’s costs application, the Claimant’s objections, and some evidence of the Claimant’s means. Mrs Packwood sent us further information over various emails, much of it appeared to be from the original hearing bundles, however we were not referred to any of these in her submissions on costs so they were not read. Submissions

[13]We received a twelve page costs application from the Respondent, and from the Claimant we received a two page objection letter. Having given the Claimant an initial 28 days in which to provide her written objections, we granted the Claimant further time and we were then provided with a thirteen page letter of objection. Both parties provided oral submissions. We have taken all of these into account. They are not repeated verbatim here but we have dealt with the relevant arguments in our conclusions below. It is nevertheless helpful if we provide a brief overview of the position of each party.

[14]The Respondent says the proceedings were conducted on the Claimant’s behalf with her consent, and it reminds us that we repeatedly asked the Claimant if she wished to continue and she replied that she did. The Respondent says that at no point did the Claimant disagree with Mrs Packwood in the hearing nor did she dissociate herself with what she was doing or saying; the Tribunal gave her opportunities to say if she wished to continue and she did so; the cost warning letter in August 2024 made her aware she was responsible for Mrs Packwood’s actions; the Claimant was present every day for the liability hearing and earlier public preliminary hearing; she agreed the evidence of Mrs Packwood which both knew to be false; the Claimant had access to the bundles; the Claimant did not lack legal capacity and she had the capacity to end the claim but did not do so; and finally she bears responsibility for what was done in her name.

[15]The Respondent refers to an advice letter dated 23 February 2024 from the Equality and Employment Law Centre to Mrs Packwood which declined to provide assistance and warning her that the claim was likely to be struck out as out of time. The Respondent says it is either not privileged (as not written by a lawyer) or privilege has been waived by Mrs Packwood who disclosed it to the Respondent. Mrs Packwood subsequently confirmed she wanted us to see it.

[16]The Respondent says that Mrs Packwood has accused it of being aggressive and seeking revenge, however it says this is only the second costs application it has made in ten years; the Claimant’s conduct has put it to substantial costs; and its costs are limited to matters arising after the claim was lodged, and even then it is only seeking £20,000 of the £71,000 of legal costs it has incurred, and it does not seek to recoup its internal legal costs, but rather the costs of external lawyers.

[17]The Respondent says that it, and the Tribunal, provided Mrs Packwood with support on explaining the disclosure process to her. We have been referred to a detailed email from Mr Blackhall (internal solicitor) of 17 April 2024 in which he explains this to Mrs Packwood, and we are also referred to the Case Management Summary from July 2024 of Judge Wyeth where the directions were explained, and the parties were warned that if the orders were not complied with the Tribunal may strike out the claim or response; bar or restrict participation; or award costs.

[18]We were referred to the Case Management Summary of Employment Judge Cowen of March 2025 where Mrs Packwood said she had no further documents to disclose, and we have been shown her subsequent disclosure of further medical documents. The Respondent draws to our attention that it had asked for disclosure of the Claimant’s Personal Independence Payment (“PIP”) application, and Employment Judge Wyeth had indicated that would be relevant, and after the Claimant failed to disclose it Employment Judge Milner-More made an order for specific disclosure on 28 January 2025 which we have already found the Claimant failed to comply with. The Respondent says the conduct continues to be unreasonable even in this costs process with a lack of information about when the Claimant went on to Universal Credit.

[19]The Respondent says that the most serious breach was with respect to partial disclosure of the Care Act Assessment (dealt with more fully in the liability judgment) where Mrs Packwood had deliberately left out things which would not help her case, and the Respondent reminds us we have already found that to have been unreasonable and unacceptable, together with our finding that Mrs Packwood had been rewriting documents in her bundle.

[20]With respect to witness statements, by case management orders dated 28 January 2025, witness statements were due to be exchanged by 4 April 2025. Whereas the Claimant and Mrs Packwood did not attend the January 2025, the Respondent reminds us that Judge Milner-More explained in detail in writing what a witness statement should look like and contain; and the concept had already been made clear at an earlier preliminary hearing in 2024.

[21]We are reminded that the Claimant still failed to exchange a witness statement even though Mrs Packwood had asked for additional time to provide one on 17 and 22 April 2025 before then not providing one at all and saying it was all in her evidence bundle she had already sent. The Respondent says that Mrs Packwood was somehow trying to convince the Respondent that she genuinely thought that sending the names of people referenced in the documents the Respondent already had, constituted exchanging witness statements, however it says that does not stand up to scrutiny; she was attempting to game the system by gaining access to the Respondent’s statements without providing her own; and the process was a charade. The Respondent reminds us that we have already found this failure to exchange statements to have been unreasonable.

[22]As regards the complaints’ prospects of success, the Respondent refers to the liability judgment where we had found that Mrs Packwood was inventing things to complain about (particularly her complaint about not being allowed to attend meetings which was not true) [para 252]; that she had sought to mislead the Tribunal with respect to Mr Robb whom she and the Claimant claimed not to recognise even though he had conducted her health questionnaire, supervised her work and worked alongside her, and escorted both on site [para 254]; and that Mrs Packwood had made evidence up on the spot under cross examination about the Claimant’s inability to do a meeting via Teams [para 255].

[23]The Respondent also refers to the complaint which had been struck out on grounds of no reasonable prospects of success – this was an earlier claim for wrongful dismissal where the Claimant knew she had been paid her notice pay; as well as to the remainder of the claim which it says had no reasonable prospects of success. The Respondent relies upon the Law Centre advice letter of February 2024 advising Mrs Packwood the claim was already out of time and likely to be struck out, and the Respondent says Mrs Packwood cannot say she was unaware of the time issue; she knew where to go to get advice which she then received; she had been warned about costs; and she had ignored her own legal advice. The Respondent says that Employment Judge Wyeth had already indicated in July 2024 that anything prior to 3 October 2023 may be out of time; this was repeated by that judge again in October 2024; the Respondent’s cost warning letter of August 2024 made the same point; and that Mrs Packwood knowingly persisted with complaints she knew were out of time.

[24]The Respondent acknowledges that not all of the complaints were out of time (those relating to the high ropes role and the dismissal were the only ones in time) and it only seeks its costs from 8 March 2024 onwards, and it says that by not pursuing the out of time claims Mrs Packwood could have shortened proceedings and the number of issues, saving time and costs.

[25]We are specifically referred to the Respondent’s cost warning letter of August 2024 which put the Claimant on notice that she would be responsible for the costs of the conduct of the claim by Mrs Packwood; it said that its time and resources were being deliberately wasted in the proceedings; the legal costs were made explicitly clear to the Claimant; the time issues were addressed; the Claimant was again encouraged to comply with Tribunal directions; and she had been told she had not presented documents in their original form. The Respondent also refers us to two without prejudice offers it sent on 23 July 2024 (which included an offer of a small payment) and 14 February 2025 (to waive costs) in order to try and resolve the matter, and to preserve its legal costs.

[26]As to vexatious conduct, the Respondent draws our attention to Mrs Packwood’s letter of 24 June 2024 in which she said she was presenting 1,628 acts of disability discrimination against the Respondent. The Respondent says that this equates to fifty claims per shift completed by the Claimant, and on any reading this was vexatious conduct designed to cause annoyance, intimidation, worry and was wholly vexatious. We are further reminded that the schedule of loss prepared by Mrs Packwood was seeking £474,260.01 from the Respondent.

[27]As to the Respondent’s costs, it tells us that its costs were proportionate; it made use of internal lawyers where it could; it has not claimed for in-house legal costs; where external lawyers were used they were proportionate and necessary; counsel was selected at the appropriate level and their fees were reasonably and necessarily incurred; the Respondent attempted to resolve the claim and attempted to limit its costs; and the Claimant through Mrs Packwood directly caused its legal costs.

[28]Mrs Packwood for the Claimant tells us that with respect to compliance with Tribunal orders, she has been trying to get across to others the impact of autism upon the Claimant; that there had been a lack of understanding by the Respondent; Mrs Packwood and the Claimant had tried to put everything in the right order and were unfamiliar with legal language; and she had not criticised anyone in particular. Mrs Packwood said that the Tribunal had been exasperated by her; and there had been lots of criticism of her by the Respondent about her letter of June 2024 which was the provision of further and better particulars of claim where she had been accused of sending too much. Mrs Packwood said it had been hard for them to understand where they had been going wrong and they had been following the advice of ACAS and the CAB; the Respondent had a lack of awareness and training on autism and she could have come in and provided training to them; and there had been failures to provide the Claimant with support. Within her written objections, Mrs Packwood also made complaints of earlier mismanagement of the claim by the Employment Tribunal. I explained to Mrs Packwood that no-one had been exasperated by her - neither in the liability hearing, nor in the costs hearing.

[29]Mrs Packwood maintained earlier criticisms that the Respondent’s Occupational Health doctor had not been qualified to deal with the Claimant.

[30]As regards disclosure, Mrs Packwood said she did not have to discuss the Claimant’s PIP payments. When I put it to her she had been ordered to provide disclosure of this by Employment Judge Milner-More, Mrs Packwood told me she did not have copies of the paperwork, she had not kept a copy of the application she made, and she was only sent the award. The Tribunal noted that despite the order for specific disclosure, Mrs Packwood appeared not to have taken any steps to comply, nor did she disclose the award.

[31]As Mrs Packwood’s oral submissions strayed into criticisms of the Respondent and re-litigating the original claim, I urged her to focus on the specific points being made by the Respondent in its application for costs, asking her to address the directions it says she failed to comply with. I asked Mrs Packwood about the Care Act Assessment, and I asked her to explain why she says it was not disclosed in full. Mrs Packwood told me that no-one here would have understood it; that only someone qualified or a neurologist could comment on it; and she did not have to disclose it to the employer under the Equality Act 2010. I pressed Mrs Packwood further explaining it would have been relevant to our decisions, and the Respondent was entitled to see the contents. Mrs Packwood maintained she had been right to withhold it, she said it was irrelevant in her view as it had nothing to do with the job the Claimant had applied for, and it was “silly” for us to be asking her about it.

[32]As to witness statements, Mrs Packwood said that she found the requirement to be very confusing; she did not understand the layout; she had no access to computers; and she referred to a domestic incident in January 2025 where they left the family home at some point.

[33]As to the claim’s prospects of success, Mrs Packwood said that the legal advice they received only related to two or three complaints they mentioned, and in any event she was told her claim had 49% prospects of success. I asked Mrs Packwood where that appeared in the letter and she referred me to a reference to the Law Centre not being able to support someone unless there were 51% prospects of success. I put it to Mrs Packwood that she was not therefore being told it had 49% prospects of success, rather she was being told it did not have 51% which is not the same thing. Mrs Packwood maintained that it did.

[34]Mrs Packwood told us she offered to provide the Respondent with training on autism which was not accepted, and she criticised the Respondent for not sorting out the claim earlier by not having conciliated or mediated the claim. Mrs Packwood said she had been doing all she could to prevent the claim going to court; she had been following guidance from others; and she was acting on her belief.

[35]The Respondent replied to Mrs Packwood’s submissions and said that the Claimant through Mrs Packwood does not provide a plausible explanation and the matters she relies upon are wholly irrelevant, in particular their medical circumstances which did not cause them to bring nor to continue with the claim, nor were the medical circumstances responsible for the manner the claim was pursued including the failure to comply with directions, nor did it impact their understanding of the claim’s prospects of success.

[36]The Respondent disputes the Claimant had a lack of awareness as she was made aware repeatedly about the failure to comply and lack of prospects, and the Respondent reminds us about the threats made by Mrs Packwood to the Respondent and in correspondence often quoting the Equality Act 2010. The Respondent says that the family’s current arrangements and domestic situation are not connected with the issues we need to decide today, and a great deal of the costs in this case and the behaviour complained of, arose before the family’s domestic circumstances changed. The Respondent also refers us to the evidence as to the Claimant’s means and her bank statement, and it says the Claimant appears to have intentionally disposed of £1,800 of cash assets at the end of the liability hearing.

[37]We then moved on to deal with the issue of the Claimant’s means. On 7 October 2025 I had provided directions for today’s hearing which included: “The Claimant should include a statement of her current income, assets and liabilities, together with any supporting documents for inclusion in the hearing bundle. The Claimant may wish to seek independent legal advice concerning the Respondent’s application.”

[38]Mrs Packwood provided some limited information which included bank statements for part of September 2025, as well as October and November 2025; a telephone bill and a mileage calculator. Mrs Packwood also provided details of the Claimant’s savings and Universal Credit income, as well as her income from four part time football coaching roles. Nothing was included about PIP payments and I had to repeatedly press Mrs Packwood to tell me what was received, for what purpose, and where it was paid. This was for the Claimant’s own benefit so we could get a proper understanding of her means. These payments for PIP amounted to £800 a month which we would not otherwise have known about had we not raised the issue. Mrs Packwood maintains that the information is not relevant.

[39]We now understand that the Claimant is in receipt of state benefits to the sum of £1,142.70 per month (comprised of Universal Credit and two PIP payments), as well as income from her four coaching roles of £380 per month, and the Claimant has an ISA with a balance of £2,800, and a further £1,800 was purportedly transferred out after the last hearing towards a car. The Claimant’s PIP mobility component goes to Motability for a car, and the PIP daily living component goes direct to Mrs Packwood for living costs. We calculate the Claimant has between £600-£630 of available income per month after paying for her mobile, wifi, and gym, based upon what Mrs Packwood has told us. Law

[40]The Overriding Objective of the Employment Tribunal is set out at Rule 3 of the Employment Tribunal Rules of Procedure 2024 and is as follows: “Overriding objective 3.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes, so far as practicable— (a) ensuring that the parties are on an equal footing, (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues, (c) avoiding unnecessary formality and seeking flexibility in the proceedings, (d) avoiding delay, so far as compatible with proper consideration of the issues, and (e) saving expense.

(3) The Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules, or (b) interprets any rule or practice direction.

(4) The parties and their representatives must— (a) assist the Tribunal to further the overriding objective, and (b) co-operate generally with each other and with the Tribunal.”

[41]Rule 74 provides: “(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,

(b) any claim, response or reply had no reasonable prospect of success, or

(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins. (3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.”

[42]It is clear from the wording of Rule 74 that costs remain discretionary and the word “must” only requires the Tribunal to consider whether to make a such an order in the circumstances identified. It does not follow that we must make that award.

[43]Rule 76 provides: “The amount of a costs order (1) A costs order may order the paying party to pay— (a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined— (i) in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by the Tribunal applying the same principles...”

[44]Rule 82 provides in that in deciding whether to make a costs order (and when determining the value of the order) the Tribunal may have regard to the paying party’s ability to pay.

[45]The approach to be followed when dealing with an application for costs was helpfully set out in Millin v Capsticks LLP

UKEAT/0093/14/RN

at paragraph 52. In summary there are three stages, first the tribunal must be of the opinion that the paying party has behaved in a manner referred to in the Rules, but if of that opinion, it does not have to make a costs order. It has still to decide whether, as a second stage, it is “appropriate” to do so. In reaching that decision it may take account of the ability of the paying party to pay. Having decided that there should be a costs order of some amount, the third stage is to determine what that amount should be.

[46]The fact that a party is a litigant in person is a relevant consideration even at the first stage when determining whether any of the grounds for an order are made out. The EAT has cautioned tribunals not to apply professional standards to lay people and reminded tribunals that even where the thresholds are met the Tribunal still has a discretion whether to award costs - AQ Ltd v Holden

[2012] IRLR 648

(at paragraph 32). Nevertheless, a cost order can be made against an unrepresented party, including where there is no deposit order in place and even in the absence of a costs warning – Vaughan v London Borough of Lewisham IRLR 713. Conduct – Rule 74(2)(a)

[47]As regards vexatious, abusive, disruptive or otherwise unreasonable conduct, the term vexatious has been held to mean the bringing of a hopeless claim not with any expectation of recovering compensation, but brought out of spite to harass the employer or for some other improper motive – ET Marler Ltd v Robertson

[1974] ICR 72

. However, being misguided is not the same as vexatious or unreasonable – Holden (at paragraph 38).

[48]In Scott v Russell

[2013] EWCA Civ 143

, CA the Court of Appeal endorsed a wider definition of vexatious as espoused by Lord Bingham in Attorney General v Barker

[2000] 1 FLR 759

, QBD as follows - “the hallmark of a vexatious proceeding is… that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.” The implication from that definition is that it is the effect of the conduct which is key rather than the motivation behind it.

[49]There is no definition of abusive or disruptive conduct within the Rules, however in the case of Garnes v London Borough of Lambeth EAT 1237/97, the EAT upheld a costs order on this basis where it had included conduct that was frivolous and involved failure to comply with orders and delays, oppressive behaviour and seeking to ambush the other party in the hearing.

[50]As regards unreasonably bringing or conducting proceedings, the word unreasonable should bear its ordinary English meaning and is not to be interpreted as something similar to vexatious – Dyer v Secretary of State for Employment EAT 183/83. Whereas a tribunal should take into account the nature, gravity and effect of a party’s unreasonable conduct, it does not mean that each should be considered separately – Yerrakalva v Barnsley Metropolitan Council and another

[2012] ICR 1398

(at paragraph 41). It will be for the tribunal to look at the full picture of the conduct, identifying the specific conduct, what was unreasonable about it, and what effect that conduct had.

[51]In Yerrakalva the court clarified that whereas causation is a relevant factor it is not necessary for a tribunal to determine whether there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed, and as indicated above, it is not a requirement for a tribunal to dissect a case in detail and compartmentalise the relevant conduct under separate headings such as nature, gravity and effect. The tribunal’s task will be to look at the whole picture of what happened and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and in doing so to identify the conduct, what was unreasonable about it, and what affect it had. Subsequent cases have again encouraged tribunals not to go beyond an appropriate broad brush first instance assessment or to adopt an overly-analytical approach. No reasonable prospects of success – Rule 74(2)(b)

[52]The test as to whether a claim had any reasonable prospects of success is an objective one, the fact that the claimant genuinely believed that she was correct is immaterial, the key question is whether the claimant had any reasonable grounds for so thinking – Vaughan.

[53]It may be a relevant factor for a tribunal to consider whether the paying party has received legal advice or is acting as a litigant in person. Costs may be awarded from the point at which it was clear that the claim had no reasonable prospects of success and this requires careful analysis of when that occurred. The Tribunal should consider the overall picture available to a claimant at the outset, for examples as regards the strengths and weaknesses for competing explanations for the conduct complained of – Keighley v Age UK Leeds EAT 0229/19. It might also be appropriate to consider when the documentary evidence became available to the claimant.

[54]In Beynon and others v Scadden and others

[1999] IRLR 700

the court held that at paragraph 8: “A party who, despite having had an apparently conclusive opposition to his case made plain to him, persists with the case down to the hearing in the 'Micawberish' hope that something might turn up and yet who does not even take such steps open to him to see whether anything is likely to turn up, runs a risk, when nothing does turn up, that he will be regarded as having been at least unreasonable in the conduct of his litigation.”

[55]When determining reasonable prospects of success the tribunal must consider each cause of action separately – Opalkova v Acquire Care Ltd EAT 0056/21 (at paragraphs 21 and 27). It may be appropriate to consider whether the claim had no reasonable prospects of success when submitted, or did it reach a stage where it had no reasonable prospect? Secondly at the stage when the claim had no reasonable prospect of success, did the claimant know that was the case? Thirdly, if not, should the claimant have known?

[56]The test is whether the claim had no reasonable prospects of success, judged on the basis of the information that was known or reasonably available from the start – we must consider how the prospects of success in a trial that has yet to take place would have looked. We should consider what information was available at that time. The fact of a factual dispute which can only be resolved by hearing evidence and finding facts does not preclude a tribunal from finding that the claim had no reasonable prospects of success from the outset – Radia v Jefferies International Ltd EAT 0007/18. The questions to be asked are: i. Did the complaints in fact have no reasonable prospects of success? ii. Did the Claimant in fact know or appreciate that? iii. Ought they reasonably to have known or appreciated that?

[57]In Saka v Fitzroy Robinson Ltd EAT 0241/00 the EAT referred to the: “very real difficulties which face a claimant in a discrimination claim”, that there is often a lack of overt evidence and so “it may be and often is very difficult for the claimant to know whether or not he has real prospects of success until the explanation of the employer’s conduct which is the subject of complaint is heard, seen and tested” [10] Breach of any order, rule or practice direction – Rule 74(3)

[58]Under Rule 74(3) the Tribunal has the discretionary power to make a costs order or preparation time order (PTO) against a party who has breached an order, rule or Practice Direction. There is no need to find that a party has acted ‘vexatiously, abusively, disruptively or otherwise unreasonably’. It is sufficient that he or she is clearly responsible for the breach of an order, rule or Practice Direction. Stage two – exercise of the discretion

[59]A tribunal has a discretion whether to make an order for costs if a ground is made out, the tribunal is not obliged to do so. The burden rests with the party who is applying for costs to establish that the costs jurisdiction is engaged. Cost orders are fact specific and should be dealt with as summarily as possible therefore issue based costs orders are to be avoided. We must take into account all that which appears relevant and disregard that which is not.

[60]In Yerrakalva the court reiterated that it remains the case that cost orders in the Tribunal are rare, they are the exception and not the rule and further: “41. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had ...”

[61]It was held in Gee v Shell UK Limited

[2003] IRLR 82

: “35. It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to people without the need of lawyers, and that — in sharp distinction from ordinary litigation in the United Kingdom — losing does not ordinarily mean paying the other side’s costs…”

[62]Moreover as per Lodwick v Southwark London Borough Council

[2004] ICR 884

(at paragraph 23) costs are compensatory for the receiving party and are not intended to be punitive on the paying party. Given their compensatory nature that will involve consideration of the loss sustained and these should be limited to those which are reasonably and necessarily incurred.

[63]When determining whether to exercise our discretion we may have regard to the paying party’s ability to pay. It is unnecessary for the assessment of means to be limited to the date when the order falls to be made, and the fact that the ability to pay is currently limited does not preclude a costs order being made where there is a realistic prospect that the paying party may be able to afford to pay at some point in the future – Vaughan.

[64]It may again be appropriate at this second stage to consider the position of the paying party or whether they had outside support (for example from a trade union) when considering whether to make an order.

[65]The fact that a costs warning has been issued by a party is a relevant factor to take into consideration although it is not a pre-condition for an order to be made. It may be relevant factor to consider whether the party seeking costs applied for a preliminary hearing for a strike out of the claim or a deposit order in the alternative.

[66]It may be a relevant factor to consider the extent to which a party has acted under legal advice – Brooks v Nottingham University Hospital NHS Trust EAT 0246/18. It may be appropriate to exercise the discretion in favour of a costs order where a party unreasonably fails to take legal advice and persists with a hopeless claim to a final hearing. The fact that a party is unrepresented may be a relevant factor to consider in the exercise of discretion – Holden, and that a tribunal should not judge a litigant in person by the same standards of a professional representative and it was further held: “32… lay people are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser. Tribunals must bear this in mind when assessing the threshold tests in rule 40(3) . Further, even if the threshold tests for an order for costs are met, the Tribunal has discretion whether to make an order. This discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice. 33. This is not to say that lay people are immune from orders for costs: far from it, as the cases make clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity…”

[67]The Tribunal Rules do not oblige tribunals to remind parties that they are at risk of costs, and the judicial sift stage under Rule 27 only considers whether there are arguable complaints and defences.

[68]Whereas within the civil courts the rule in Calderbank v Calderbank

[1975] 3 All ER 333

provides that where a claimant succeeds but fails to obtain damages equivalent or greater than a settlement offer, they become liable for the other side’s costs from the date the offer is rejected, this has no place within the Employment Tribunal. Nevertheless, the rejection of settlement offers may be a relevant factor when considering whether to exercise the discretion to award costs – Kopel v Safeway Stores plc

[2003] IRLR 753

[69]Again, and as per the decision in Fitzroy Robinson, it may also be appropriate to consider the nature of the evidence available to the claimant and also the nature of the claim, and whether it would be reasonable for the claimant to test the evidence at a final hearing. It may only be at a final hearing that a claimant can understand whether they have any prospects of success once the employer’s conduct is explained and tested. In Vaughan the claimant had made allegations of discrimination, harassment and whistleblowing which were complicated, however the costs threshold was crossed because of the claimant’s fundamental unreasonable appreciation of the behaviour of her employer and colleagues rather than due to her lack of experience. Stage three – the amount of the order

[70]We remind ourselves that cost orders should be compensatory in nature not punitive. It is necessary to consider what loss has been caused to the receiving party and costs should be limited to those reasonably and necessarily incurred – Yarrakalva. Even where a loss is identified, it is still necessary to take into account other factors such as the conduct of the parties, and the tribunal may take into account the means of the paying party. Means includes income, expenditure and capital or assets including property – Shields Automative Ltd v Grieg

UKEAT/0024/10

[47].

[71]Where means are taken into account a tribunal should record its findings about the ability to pay a costs order. Where means are not taken into account a tribunal should explain why – Jilley v Birmingham and Solihull Mental Health NHS Trust

UKEAT/0584/06

[72]A tribunal is not required to limit costs to an amount the paying party can afford to pay – Arrowsmith v Nottingham Trent University

[2012] ICR 159

as that party’s circumstances may well improve. The likelihood of an improvement in circumstances may be a relevant factor to consider, and in Vaughan an order was upheld even though the claimant could not presently meet a substantial payment however there was a realistic prospect that she might be able to do so in the future. Whatever order is made would need to be enforced in the county court which can take into account means from time to time.

[73]The tribunal may make an award of unassessed costs which cannot exceed £20,000, or it may make an order for detailed assessments of costs for which there is no limit which must be determined in accordance with the Civil Procedure Rules.

[74]The reference to unassessed cost does not mean that the figure should be entirely arbitrary and it should be in respect of costs incurred by the receiving party therefore the tribunal must state on what basis it is awarding any sum of costs; on what basis it arrives at the sum; and why costs are being awarded against the party in question - Sumukan (UK) Ltd and another v Raghavan EAT 0087/09. Acting on behalf of another party

[75]In Bennett v London Borough of Southwark

[2002] EWCA Civ 223

it was held: “First, the manner in which a party's proceedings are conducted is not the same thing as, though it may well be evidenced by, the behaviour of the party's representative. What the rule is directed to, it seems to me, is the conduct of proceedings in a way which amounts to an abuse of the tribunal's process: abuse is the genus of which the three epithets scandalous, frivolous and vexatious are species. Secondly, what is done in a party's name is presumptively, but not irrebuttably, done on her behalf. When the sanction is the drastic one of being driven from the judgment seat, there must be room for the party concerned to dissociate herself from what her representative has done. A principal can always prove a want of actual authority, and I do not believe that the advocate's ostensible or implied authority, large as it is, extends (at least in the absence of ratification) to abusing the judicial process.” [26]

[76]The court in London United Busways Limited v Dankali

[2023] EAT 123

examined the issue of where questions may arise as to whether someone is acting with the authority of party, and what steps may be open to a tribunal. It was held: “In general, when a tribunal is presented with a situation in which there may be some concern as to whether a representative has sufficient current instructions or authority, it will be a matter for the judgement of the judge concerned as to how to manage that concern. There are a range of tools available to the judge confronted by such a situation, who considers that some further steps need to be taken to investigate it. These might include requiring written or other forms of evidence to support assertions that there is sufficient authority or instructions, or could include, in certain circumstances, the tribunal seeking to communicate directly with the party concerned as well as with the representative.” [55]

Conclusions

[77]We will now address each of the grounds upon which the Respondent seeks costs, taking into account the submissions from both sides. We remind ourselves throughout our decision making that the Claimant and Mrs Packwood are litigants in person and should not be held to the same standard as a lawyer; they are not familiar with court processes and procedures and legal language; and moreover discrimination law is a complex area. Failure to comply with Tribunal orders and rules; and unreasonable conduct of proceedings

[78]Mrs Packwood had the concept of witness statements explained to her by numerous judges as well as by the Respondent. Mrs Packwood knew what was required of her, but she failed to provide a witness statement for her and for the Claimant. We reject Mrs Packwood’s explanation at the time that they were not lawyers or legally experienced so did not know what to do. We reject Mrs Packwood’s new explanations that she was in a different location due to a family crisis and had no access to a computer so could not comply. Mrs Packwood has been able to conduct the case by writing long correspondence, including a 60 page schedule of loss. Someone who is able to produce a 60 page schedule of loss is in our view capable of producing a witness statement. This failure put the Respondent to unnecessary legal work and legal costs in having to engage with Mrs Packwood on the issue, and moreover it caused prejudice to the Respondent in defending this case, and it caused disruption at the final hearing as time was spent trying to address the failure. The failure to provide a witness statement was in breach of Tribunal directions, it was unreasonable and unacceptable.

[79]Mrs Packwood failed to comply with the requirement to provide disclosure of relevant material, including but not limited to withholding the application for PIP payments which she could have tried to obtain if she had not retained a copy. Mrs Packwood failed to at least try to obtain this, and it would have been relevant to the issue as to the Claimant’s alleged levels of impairment so that we could form a view on matters such as substantial disadvantage. This was in breach of an order for specific disclosure from Employment Judge Milner-More, and this failure to comply was also unreasonable.

[80]Mrs Packwood deliberately held back parts of the Care Act Assessment and her argument today that it was not relevant is unacceptable and unreasonable, as is her other argument that she was entitled under the Equality Act to withhold information from the employer. Mrs Packwood was subject to a Tribunal order to provide disclosure of relevant documents, the contents of the entire report would have been relevant for the Tribunal to consider as it would have helped understand the level of impairment, and the Respondent was entitled to see the contents so that it could attempt to defend itself. It was in the Claimant’s own interests that we should see all of that report to gain a proper understanding of her impairments – this was relevant to the legal issue of substantial disadvantage for instance.

[81]The Tribunal was surprised by Mrs Packwood’s ill-judged criticism of the Tribunal this week that it was being “silly” by asking her why this relevant document had not been disclosed. It is the Tribunal which is tasked with determining the level of impairment and also substantial disadvantage (as well as the something arising from disability) – these are the legal issues for a tribunal to decide.

[82]It is also the Tribunal which is the final arbiter on whether documents are relevant. Parties should not cherry pick documents and provide only those documents (or extracts of them) which only help their case. We inferred there was something in that Care Act Assessment that was unhelpful to the Claimant’s case that Mrs Packwood was deliberately seeking to withhold from consideration. This refusal to comply, coupled with Mrs Packwood doubling down on her position this week, was entirely unreasonable and showed exceptional disrespect to the Tribunal and its orders, and was a wilful attempt on her part to mislead the Tribunal, and was in flagrant breach of Tribunal orders.

[83]The bundle produced by Mrs Packwood was unreliable and unusable because it comprised of incomplete extracts from documents heavily edited by her to create a misleading impression as to the Claimant’s level of impairment. Mrs Packwood’s earlier descriptions of the Claimant’s level of impairment varied depending upon the outcome being sought, and the Tribunal process was no exception. In some instances where adjustments were being sought from either the Claimant’s school or elsewhere, a very significant level of impairment was described, including hearing loss, the Claimant having little or no safety awareness, and only able to understand three or four words at a time. When the Claimant was seeking the high ropes role, all this had changed and Mrs Packwood sought to downplay these impairments.

[84]This presented an evidential problem for Mrs Packwood whose approach was to withhold this information from her Tribunal bundle, we inferred this was done in order to improve the prospects of success of the complaints about the high ropes role, whilst at the same time seeking a significant number of adjustments from the Tribunal in order to take part in the process. The discrepancy made no sense, and the liability judgment sets out in detail why the Tribunal was unable to confidently make a finding on the true level of impairment. The Claimant clearly has some level of impairment due to mere fact of an autism diagnosis, the level of impairments from all of the conditions could not be confidently determined.

[85]Other documents arrived incredibly late, and immediately before the final hearing, such as the official audiogram data sheet and the sensory impairment care plan.

[86]The Respondent was put to unnecessary legal work and legal expenditure due to Mrs Packwood’s unreasonable conduct and wilful failure to comply with Tribunal orders, and the Respondent repeatedly sought to engage with her to solicit her compliance with little or no success.

Findings of fact

[87]We have been referred to at least 13 instances in the hearing bundle where Mr Blackhall corresponded with Mrs Packwood about compliance with orders, however her response was not merely uncooperative, it was rude and contained inappropriate and unfounded allegations accusing him and the Respondent of defamation, slander, scandalous behaviour, ableism, discrimination by association, blatant obtrusive and crass behaviour, arrogance, delusions, manipulative and underhand behaviour, and failure to disclose documents.

[88]We noted in particular:88.1 An email which appears to be dated 10 April 2024 in which Mrs Packwood wrote: “Mr Blackhall’s defamatory, slanderous, scandalous suggestions towards the Claimant and family, on behalf of the Respondent, in light of the pre-existing ‘thousands or pages of complaints and evidence’ and ‘voluminous evidence about these conditions’ constitutes gaslighting, and is an act discriminatory on grounds of disability and discrimination by association”.

88.2 A further email from Mrs Packwood which appears to be dated 17 April 2024 in which she writes: “This may be a rare example of blatant, obtrusive, crass behaviour by Mr Blackhall, on behalf of the Respondent to maintain the arrogance towards disability and inclusion awareness, under a deluded belief of systematic ableism.”

88.3 An email from Mrs Packwood of 2 October 2024 in which she writes: “The documents serve as an example of the Respondent’s continued inappropriate, manipulative and underhand behaviour in these proceedings. Mr Blackhall is not representing the Respondent he is staff and make up the Respondent as seen from the need of outsourcing your legal representation.”

88.4 Further in an email dated 28 November 2024 Mrs Packwood wrote to Mr Blackhall and stated: “We are disappointed to find you continue to act with ignorance and disregard, exploiting any disadvantage of the Claimants circumstances to your advantage as opposed to making reasonable affair and compromising arrange arrangements to meet the needs of the case.”

[89]These attacks on Mr Blackhall’s character (and that of others) and professional reputation, were totally inappropriate and unreasonable, not least because it was Mrs Packwood who was in breach of Tribunal directions and in many instances Mr Blackhall was politely and helpfully trying to engage and to solicit her compliance, which would have also been in the Claimant’s own interests to have done so. All of this put the Respondent to unnecessary legal work and legal expenditure, although we note the Respondent does not seek to recover costs incurred in connection with its internal lawyers – nevertheless the behaviour identified demonstrates the unreasonable manner in which the entire proceedings were conducted.

[90]We noted in the costs hearing that Mrs Packwood maintains that the Respondent’s Occupational Health doctor was not qualified to deal with the Claimant. It appeared that Mrs Packwood’s position had not altered from the liability hearing where we recall from the documents in the Respondent’s and the Claimant’s bundles where Mrs Packwood had accused the doctor of ignorance, a lack of clinical competence, she said he was not HSE qualified, and Mrs Packwood made repeated allegations of lack of qualifications, competence and experience. Mrs Packwood had also researched the doctor online, going over his numerous qualifications, checking Companies House and GMC records, and then shared newspaper reports over a totally unrelated case suggesting that he was in some way involved in the matter being reported on – this had no relevance whatsoever to the Claimant’s case, and the Tribunal in the liability judgment found this to be unsavory and a witch hunt against the doctor who was simply doing his job.

[91]Immediately before the final hearing Mrs Packwood sent a request for reasonable adjustments from the Tribunal. This was a particularly extensive list of adjustments, and whereas it is of course not unreasonable conduct for a party to seek adjustments to be made for them, this application was made incredibly late in the day, right before the final hearing in a claim which had been running for some time and had been the subject of an exceptional amount of case management, and it could and should have been raised much earlier than it was. No explanation was provided for this late request, despite a direction to do so, and moreover many of the proposed adjustments were not necessary or reasonable in any event – such as a hearing without the Respondent and without hearing any evidence. Whereas the hearing managed to proceed on time due to pragmatic solutions by the Tribunal, considerable time was taken up dealing with it in the final hearing whereas it could have been dealt with much sooner. Again, this involved unnecessary work and lengthened proceedings.

[92]Further time was wasted during the final hearing, including by Mrs Packwood’s insistence on questioning the Respondent on matters she knew had already been struck out (such as the induction), as well as the time spent questioning Mr Robb whom Mrs Packwood claimed that she and the Claimant did not recognise, even though he had conducted her induction, supervised her at work, and even escorted them on site. This was a lie which was maintained in order to support an untrue allegation that the Respondent had disclosed the Claimant’s personal medical information without consent, whereas it was Mrs Packwood who had waited outside of the canteen approaching a colleague and then sharing the Claimant’s information. Mrs Packwood told us that neither she nor the Claimant recognised Mr Robb. This was extraordinary and unbelievable given the Claimant reported to him, worked alongside him in a shift with 3 others, and he had escorted them to site. This was one example of Mrs Packwood inventing things to complain about referred to in the liability judgment.

[93]The Claimant and Mrs Packwood had been told by the Respondent that the Claimant should not undertake the high ropes training at height, nevertheless they ignored this instruction, the Claimant went on this training, and Mrs Packwood again lied to us saying the first she knew about it was from the Claimant’s subject access request. This was untrue as the contemporaneous documents showed her discussing it at the time by reference to the health declaration on the Respondent’s iPad where Mrs Packwood had dictated the Claimant’s answers over the telephone. This was pointed out to the Claimant in the hearing and she was questioned on Mrs Packwood’s account which she then supported, which meant she also told us a lie. This was not simply a case of misremembering or being misguided – it was part of a wider pattern of sticking to an untrue story even when the contemporaneous documents in their possession proved otherwise. This was further unreasonable conduct on the part of the Claimant and Mrs Packwood.

[94]We also recalled Mrs Packwood’s unreliable evidence to us that she had called Social Services about the Respondent not allowing her to escort the Claimant from site, and she alleged that they told her to go to the media about it. We found that evidence to be equally unreliable – it was unsupported by any corroborative evidence; there was no contact from Social Services; and it was implausible that Social Services would ever have advised any such thing.

[95]Finally, Mrs Packwood’s letter of 24 June 2024 to the Respondent made complaints of 1,628 different acts of discrimination comprising: 171 Counts Direct Discrimination 129 Counts Indirect Discrimination 139 Counts Failure to Make Reasonable Adjustments 307 Counts Harassment 312 Counts Victimisation 234 Counts Aggravated Damages 10 Counts Gaslighting in the Workplace 5 Counts Job Title Fraud Another 10 Counts Gaslighting in the Workplace 45 Counts Discrimination by Association 266 Counts Actual Breaches of Employment Contract

[96]We understand this to equate to 50 different allegations per shift completed by the Claimant in the limited time she worked for the Respondent. Mrs Packwood now argues that this was simply a response to a request from the Respondent or a direction from the Tribunal to provide further and better particulars. This was no such thing, and we note it contained little or no detail in any event. The Respondent says that this letter was vexatious, and we agree as it falls squarely within the definition of vexatious conduct within the judgment in Barker referred to above. This went far beyond simply being misguided or unfamiliar with the Tribunal process or discrimination law – it was a grossly exaggerated set of complaints designed to cause intimidation to the Respondent.

[97]We therefore agree with the Respondent and find that the Claimant, through Mrs Packwood who acted on her behalf, has conducted proceedings both unreasonably and vexatiously, and was in repeated breach of Tribunal orders. The above matters are merely illustrative of a far wider pattern of unreasonable conduct which is not repeated here for the sake of brevity. All of this conduct has put the Respondent to unnecessary work and expenditure of legal costs.

[98]We record that with respect to the Claimant’s failure to comply with Tribunal directions, it would have been open to the Tribunal to have struck the claim out for failure to comply with any or all of those directions, however we did not do so. Prospects of success

[99]We now address the issue as to whether each cause of action had any reasonable prospects of success. We of course remind ourselves that whereas each complaint failed at the final hearing, that is not of itself sufficient to merit an award of costs. Costs do not automatically follow the event in this jurisdiction unlike some other courts. We must go further and explore whether the Claimant or Mrs Packwood on her behalf would have had any reasonable grounds for thinking the complaints had reasonable prospects of success.

[100]We now know that Mrs Packwood was receiving advice and guidance from various sources including ACAS, the CAB and a law centre which sent her a detailed letter of advice in February 2024. Mrs Packwood has waived privilege and we have their advice letter warning her that the claim, as she had described to them, did not meet the 51% prospects of success threshold for them to take the case on. Mrs Packwood misrepresented this to us as saying the advice meant it had 49% prospects but that is not what it says. Mrs Packwood says that the advice only related to 2 or 3 parts of the claim, we do not know that to be the case, and we have little confidence in some of what Mrs Packwood tells us as she has been found to be an unreliable witness at the liability hearing.

[101]Leaving that aside, Mrs Packwood was made aware by the Law Centre that the claims were out of time and would likely be struck out by a tribunal. Nevertheless, Mrs Packwood persisted.

[102]Employment Judge Wyeth also twice made Mrs Packwood aware that the claim or parts of it were likely out of time. Nevertheless, Mrs Packwood persisted.

[103]The Respondent, on a number of occasions, made Mrs Packwood aware that the claim was likely to fail and it explained why, going as far as to offer a small token payment, to induce her not to continue with the claim, and a second offer to waive costs. Nevertheless, Mrs Packwood persisted.

[104]All the complaints were found to be out of time save for the Claimant’s complaints about the high ropes role and her ultimate dismissal. These complaints were in time but nevertheless they failed as well.

[105]We will deal with each of the causes of action, starting with the two discrimination arising from disability complaints. With respect to the Claimant’s application for a role on the high ropes, a safety critical role, the Respondent had declined to appoint the Claimant to that role on medical (and safety) grounds, and the burden of proof had shifted to the Respondent which provided not merely a satisfactory explanation, but also a patently obvious and non-discriminatory explanation for that treatment having persuaded us that it had a legitimate aim of keeping people safe and the means adopted were proportionate to that end.

[106]The Claimant and Mrs Packwood must have known from the start that she was unsuitable for appointment to that role given she was recorded by Mrs Packwood in a Care Act Assessment as having little or no safety awareness, and her knowledge of her propensity for hemiplegic migraines mimicking a stroke and seizures. The medical advice from the neurologist, whilst positive or supportive, had been based upon incomplete and inaccurate information from Mrs Packwood. That claim had no reasonable prospects of success and it would have been obvious to any reasonable person that the Tribunal would not decide that she ought to have been allowed to perform at height with the levels of impairment Mrs Packwood alleged the Claimant to have, as this would fly in the face of the specialist health and safety advice from experts in that field employed or engaged by the Respondent.

[107]Mrs Packwood had sought to downplay the risks in the liability hearing by telling us they would never emerge as the high ropes role would be scripted. This is addressed fully in the liability judgment, but for present purposes we reiterate that the risks would be far from scripted given the anxiety and adrenaline experienced by guests at that height in such a safety critical situation. It must have been obvious to Mrs Packwood and to the Claimant that the decision had been taken to protect the safety of the Claimant herself, and her colleagues, and the Respondent’s guests, and there was a strong justification for doing so.

[108]As regards the dismissal decision, this did not amount to discrimination arising from disability as the reason for dismissal was due to sickness absence due to alleged anxiety and not related in any way to the Claimant’s disabilities. This would have been obvious from the earliest case management hearing that the decision to dismiss bore no relationship to the Claimant’s disabilities. We further noted that the absence was also due to the Claimant’s unreasonable refusal to return to work even though the Respondent had acceded to each and every one of Mrs Packwood’s requested adjustments in order to get her back into work. The Claimant and Mrs Packwood would have both known early on in proceedings that whereas the complaint was in time, it had no reasonable prospects of success given she had a substantive role that she refused to return to; the Respondent had made adjustments for her to return to that role; and the Claimant had been absent for a considerable period of time.

[109]As regards the reasonable adjustments complaints, many of these were based on factual premises which never existed in the first place. Of the seven alleged PCPs, only two of them were found to exist which was the requirement to be medically fit to perform the high ropes role, and secondly the requirement for the high ropes role to be performed at height.

[110]We come back to the same issue as before - it was inconceivable that the Claimant or Mrs Packwood could ever reasonably believe that she would be appointed safely to that role given her alleged level of impairments including her lack of (or impaired) safety awareness; it was equally inconceivable that the complaint had any prospects of success at all. The proposed adjustment of the Respondent changing its entire rotating shift pattern to allow the Claimant to perform the role on the ground was not merely unrealistic and unreasonable, it would drive a coach and horses through the Respondent’s safety protocols of rotating staff to avoid complacency. Moreover, the Claimant’s impaired safety awareness meant that there was little assurance that the Respondent’s guests would be kept safe even if the Claimant was limited to working on the ground getting them ready to go up at height. We also recall that staff working on the ground can be expected to go up at height to deal with an emergency at any time which would have presented the same risks to the Claimant, her colleagues and the guest.

[111]It would have been obvious from the start of the claim that the complaints about the high ropes role were not going to succeed, yet Mrs Packwood persisted in bringing the complaint to trial, putting the Respondent to unnecessary legal work and legal expenditure. A number of witnesses gave evidence on this issue for the Respondent, and their statements provided a thorough and convincing explanation about the safety critical nature of the role, and the risks which would have ensued had the Claimant been appointed. Nevertheless, the Claimant persisted with this complaint right up to the final hearing, putting the Respondent to legal expenditure.

[112]It would also have been obvious that the other PCPs never existed. The Claimant had been allowed to have a parental escort; there was no failure to provide safety uniforms; there was not a practice of not supplying safety shoes; the complaint about the bicycle and trailer was ever changing and the PCP was never applied to the Claimant as she was told she did not have to perform that task but Mrs Packwood insisted the Claimant wanted to do so; no-one was pushing their own work onto the Claimant, rather the Claimant was not performing all of her own role and the Respondent was content with this; and there was no failure to allow the Claimant to be accompanied to meetings. It would and should have been obvious from the start of proceedings that those reasonable adjustments complaints were destined to fail given the PCPs did not exist. These complaints ought not to have been brought, nor pursued once the legal issues had been clarified at the earlier preliminary hearings where it would have been obvious that the factual premise did not exist for them. Persisting with these complaints put the Respondent to unnecessary legal work and legal expense.

[113]As regards the harassment complaints, the factual premise of many of the allegations were not made out. There was no refusal to allow the Claimant to be accompanied to meetings; likewise there was no sickness absence process. It is accurate that Ms Congerton said that the Claimant had not been offered a move, however this was not unwanted conduct, it was a statement of fact correcting a misrepresentation on the part of Mrs Packwood. The same applies to Mr Sturzaker saying he had not heard from the Claimant about rescheduling a meeting, this was not unwanted conduct it was a statement of fact. As regards rescheduling the meeting when the Claimant was overseas playing sport without applying for leave and whilst off sick from work, although the Respondent concedes it was unwanted conduct, and we disagreed, it still did not relate to the Claimant’s disabilities – the obvious trigger was to discuss ways of getting the Claimant back into work and we note that the absence was not for a disability related reason in any event.

[114]We find that it was abundantly clear from the start of the claim that these harassment complaints had no reasonable prospects of success. In most instances the incidents either did not happen at all, or did not pass the first hurdle of being unwanted conduct, let alone having any relationship to disability. Again, persisting with these complaints put the Respondent to unnecessary legal work and legal expenditure. These were not simply instances of being misguided – these complaints are based upon things which either never occurred in the first place, or which could not reasonably be regarded as relating to the Claimant’s disabilities.

[115]Finally, as regards the victimisation complaints, the factual premise of the Respondent making false allegations about the Claimant never happened and that complaint failed at the first hurdle. As regards the Claimant’s dismissal, this did of course happen but it was not because the Claimant might bring a discrimination complaint in the future, it would be quite obvious to any reasonable person that the dismissal was because of the length of the Claimant’s sickness absence, coupled with her unreasonable failure to return to work notwithstanding the Respondent had acceded to every one of Mrs Packwood’s required adjustments for the Claimant to return to work in her substantive role.

[116]Mrs Packwood insisted on the Claimant being appointed to a role she knew, and the Claimant knew, she would not be safe to perform and there were no adjustments which could remedy that risk. The decision to dismiss was not tainted by any form of discrimination and both the Claimant and Mrs Packwood must have known this to be the case from the commencement of the litigation. Persisting with this claim put the Respondent to unnecessary legal work and legal expenditure.

[117]The Respondent says its legal costs were £71,000 but it is only seeking £20,000 and from the point at which it had to utilise external lawyers from 8 March 2024. We record that by March 2024 it would have been clear to Mrs Packwood and the Claimant that these complaints had no reasonable prospects of success, and they were routinely made aware throughout the life of the case, with the Law Centre advising that they were out of time, the Respondent making its own position clear in a cooperative and reasonable way; and finally Employment Judge Wyeth also raising the time issue. As in the case of Scadden to which we have referred to above, it was unreasonable for Mrs Packwood and the Claimant to have persisted with the case to the final hearing in the knowledge that nothing was going to turn up to improve the prospects of success.

[118]We are not persuaded that Mrs Packwood’s and the Claimant’s medical conditions had any impact upon their understanding as to the merits as this was explained to them repeatedly. We are not persuaded that the family’s current home arrangements had any bearing on the manner in which proceedings were conducted, nor on their repeated failure to comply with directions, not least because of Mrs Packwood’s intransigence before us this week that she decided that parts of the Care Act Assessment were not relevant and she would not share it despite being under a direction to disclose all relevant material. Moreover, a great deal of the unreasonable conduct occurred before the change in the family situation at home. Whereas we acknowledge that neither Mrs Packwood nor the Claimant are lawyers and they should not be held to the same standards, they would have known that many of the things they sought to complain about had not happened, and they would have known the complaints about the high ropes role in particular were destined to fail at a final hearing.

[119]For the reasons we have given, we are satisfied that the grounds for consideration of an order for costs under Rules 74(2)(a), 74(2)(b) and 74(3) are made out. We move on to stage two. Stage two

[120]We remind ourselves that costs are discretionary, they are the exception and not the rule. We also remind ourselves to look at the whole picture of what happened in this case. We further remind ourselves that costs are intended to compensate – they are not intended to punish, and we have no power to punish people for their conduct – our focus is limited to compensating for wrongdoing and nothing further beyond that.

[121]Mrs Packwood has sought to blame everyone else but her and the Claimant for the present situation, blaming the Respondent for its alleged conduct of proceedings, for not settling the claim or conciliating; blaming the Tribunal for mismanagement of the case; and suggesting that no one was listening to them about the effects of autism.

[122]The reality is that the Respondent complied fully with the Overriding Objective of the Tribunal in the conduct of litigation, both in the lead up to the final liability hearing, during the final liability hearing, and now during this costs hearing. Conversely, Mrs Packwood and the Claimant have not complied with the Overriding Objective by their failure to cooperate with the Respondent and the Tribunal. The Tribunal had made numerous adjustments for the Claimant and Mrs Packwood – the matter was the subject of repeated preliminary hearings and extensive case management, taking the time to explain matters to them, slowing down proceedings, providing repeated breaks and additional time, checking their understanding, and giving them the opportunity to have their say and provide their version of events.

[123]Regrettably Mrs Packwood’s explanations about the failure to provide witness statements and to provide full disclosure, and her propensity to mislead and to blame everyone else and not to take any personal responsibility for the manner in which proceedings have developed, are factors we take into account when deciding whether to exercise our discretion.

[124]Whereas litigation is by its very nature adversarial, it is not open warfare and should not be conducted as such. The Respondent has been measured in its approach. Mrs Packwood had the opportunity this week to explain why she had not conducted proceedings unreasonably or vexatiously; why she had failed to comply with Tribunal directions and rules; and why the claim had reasonable prospects of success. Instead, Mrs Packwood has resorted to repeating unjustified personal attacks on the Respondent and its lawyers, accusing them of being vengeful, aggressive, threatening, malicious and guilty of ableism. None of this is true, but it is a repeat of a previous pattern of behaviour from the original hearing with Mrs Packwood seeking to deflect, to obfuscate, to criticise and to attack, rather than focussing on the legal issues before us. It is unfortunate that the previous unreasonable conduct continues to be repeated before us today in the costs hearing.

[125]We take into account the fact that the Claimant and her mother are litigants in person, but they were in receipt of legal advice which advised against litigation on grounds of time; both would have known that the factual premise of some of their allegations did not exist but nevertheless they persisted; the Claimant was and remains a young person; she has some level of impairment; she is not in full time work but she is undertaking four coaching roles weekly; she has savings of £2,800 and is in receipt of state benefits. Mrs Packwood’s disclosure with respect to state benefits was incomplete, she had to be repeatedly asked about the Claimant’s income, the value and where it was paid, very little of this was volunteered by her in the first instance, I had to ask repeated questions of her to discover the full picture, including directing her to provide additional information over night. Mrs Packwood failed to mention anything at all about PIP payments until I raised these with her, and this revealed an additional monthly income of around £800. This lack of candour on the part of Mrs Packwood makes it difficult to have confidence in what she is telling us, nevertheless where we are provided with evidence of means we should take it into account and we do so.

[126]There is some prospect of the Claimant’s income improving in future, and the fact that she is able to combine four coaching roles each month is a positive sign.

[127]The Claimant has little expenditure of her own, she pays for a gym membership and mobile telephone, one of her PIP payments is paid direct to Mrs Packwood which is used for food and bills. Another PIP payment is paid direct to Motability but that is the Claimant’s choice in order to pay for a car. The Claimant is left with Universal Credit and also income from her four coaching roles.

[128]Around £1,800 was removed from the Claimant’s bank account after the last hearing, leaving the current £2,800. Mrs Packwood says this was a payment for the Claimant’s car.

[129]The claim was conducted by Mrs Packwood however it was done on behalf of the Claimant with her consent, and we repeatedly checked she wished to continue and she confirmed that she did. At no point has the Claimant sought to distance herself from her mother’s conduct of these proceedings, she has taken an active part in them and agreed with some of Mrs Packwood’s evidence which we found to be untrue.

[130]We have taken into account all that appears relevant to us which comprises the Claimant’s age, her impairments, her savings, her ability to earn income through various roles, the Claimant’s understanding of proceedings and her consent for Mrs Packwood to act on her behalf, the unreasonable and vexatious manner in which proceedings were conducted, the flagrant breach of Tribunal orders and directions, and the lack of reasonable prospects of success of the complaints which would have been clear from the start or very early on in proceedings. The Claimant through Mrs Packwood had numerous opportunities to resolve proceedings, including two offers of settlement. These proposals were not accepted and the Claimant persisted with the claim right up to the final hearing.

[131]Regrettably, this is one of the rare cases where the threshold for making a costs order has been met, not just on one ground, but with respect to each and every one of the grounds relied upon by the Respondent under Rules 74(2)(a), 74(2)(b) and 74(3). It is significant to us that Mrs Packwood was advised against proceeding by an external Law Centre yet she carried on. It is also significant to us that there was a wilful intention not to comply with Tribunal directions and to mislead. We readily acknowledge that being misguided is not the same as being unreasonable or vexatious, but in this case the conduct went far beyond being misguided - there was a deliberate attempt to mislead and to misrepresent, and this put the Respondent to unnecessary legal work and legal expenditure and this has weighed heavily as a factor in our decision to exercise our discretion.

[132]We are therefore minded to exercise our discretion and to make an award of costs in favour of the Respondent. Stage three

[133]We now have to determine the appropriate amount of the award. The Respondent is seeking £20,000 of the £71,000 of legal costs it has accrued. In our summary assessment, we find that those costs were reasonably and necessarily incurred in defending this matter. The Respondent has taken a proportionate and a pragmatic approach to costs, keeping expenditure to a minimum but having to repeatedly engage with Mrs Packwood to solicit her compliance with directions to little or no avail. It was necessary to instruct external lawyers at a certain point in the litigation, as well as counsel at an appropriate level of seniority. The Respondent had to produce statements on behalf of ten witnesses to deal with the range of allegations brought by the Claimant. The case necessitated an 8 day hearing including oral judgment. The total level of legal costs was far higher than that being claimed.

[134]We again take into account the Claimant’s means. The Claimant is in receipt of state benefits to the sum of £1,142.70 per month; she has income from her four coaching roles of £380 per month; and the Claimant has an ISA with a balance of £2,800, and a further £1,800 was purportedly transferred out after the last hearing towards a car. The Claimant’s PIP mobility component goes to Motability for a car, and the PIP daily living component goes direct to Mrs Packwood for living costs. We calculate the Claimant has between £600-£630 of available income per month after paying for her mobile, wifi, and gym, based upon what Mrs Packwood has told us.

[135]Whereas the sum sought by the Respondent is considerable, it has been reasonably and necessarily incurred due to the unreasonable and vexatious conduct on the part of the Claimant through Mrs Packwood; the Respondent had to defend complaints which had no reasonable prospects of success and which Mrs Packwood had been independently advised against pursuing, at least those parts she discussed with external lawyers; and the Respondent’s costs were increased due to the flagrant repeated breaches of tribunal directions.

[136]Clearly the Claimant cannot afford all the £20,000 sought today, even though we find Mrs Packwood to be less than candid with us about the Claimant’s means. Nevertheless, the Claimant is able to work, she is clearly able to accrue savings, and she lives at home and has very little in the way of bills to meet. The Claimant’s income is likely to improve in the future if she continues her coaching and/or returns to full time to employment – there was no evidence that is not possible.

[137]Whereas the sum sought has been reasonably and necessarily incurred, we remind ourselves it does not automatically follow that we must award the full amount sought – we still retain a discretion as to what to award. We have kept open the option to award a lesser sum, however we note that it will be a matter for the Respondent if, and when, it seeks to enforce an award of costs, and any enforcement through the county court will take into account the ability to pay.

[138]Accordingly, we therefore award the Respondent the full costs sought of £20,000. Approved by: