Ms Y Mirza v Honeywell Productivity Solutions Ltd: 3301405/2024 and 3304070/2024
EMPLOYMENT TRIBUNALS
Case No 3301405/2024, 3304070/2024
Between
Ms Y MirzaClaimantHoneywell Productivity Solutions LimitedRespondent
Before
Employment Judge R LewisIn person for claimantMs D Gilbert (instructed by counsel) for respondentDate 18 August 2025
JUDGMENT
[1]The claimant’s application for interim relief is refused.[1]The Claimant did not have any disability at any time relevant to this dispute.[2]In terms of paragraphs 41(g) and 41 (h) of Particulars of Complaint, the Claimant made two protected disclosures. On 2 November 2023 and again on 17 January 2024, she disclosed information that she believed tended to show that Mr Berry was intending to use bribery to obtain business for the Respondent.[3]Other than as mentioned in paragraph 2, the Claimant did not make any of the other protected disclosure as alleged in Particulars of Complaint,[4]The Claimant was not dismissed by the Respondent.[5]The Claimant was not subject to any detriment on the grounds of protected disclosure. Page 1 of 3[6]The complaints specified in this paragraph are out of time as either harassment and/or direct discrimination and it is not just and equitable to extend time. Using the numbering in list of issues the complaints which are out of time and which fail because there is no jurisdiction are as follows: 6.1. 3.1.1. 3.1.2, 3.1.3; 6.2. 3.3.3, 3.3.5, 3.3.6, 3.3.7, 3.3.8, 3.3.12, 3.3.13.[7]The complaint alleging disability discrimination [with definition in section 15 the Equality Act 2010 ("EQA")] fails and is dismissed.[8]Other than those that are out of time, the complaints of harassment related to disability fail and are dismissed.[9]The complaints alleging harassment related to age all fail and are dismissed.[10]The complaints alleging direct discrimination because of age fail and are dismissed.[11]Other than those that are out of time, the complaints of harassment related to sex fail and are dismissed as do the alternative complaints of direct sex discrimination.[12]The complaint of indirect sex discrimination fails and is dismissed.[13]The complaints alleging victimisation fail and are dismissed.[14]As a result of the above decisions, all the complaints have failed and there is no need for a remedy hearing. Approved by:
REASONS
[1]An oral judgment with reasons was given on 15 August 2025. Written reasons were not requested during the hearing. I am now aware that the Claimant sent emails on 15 and 17 August requesting written reasons. These requests were referred to me on the papers after the judgment had been promulgated; promulgation was 10 September 2025.[2]The Claimant is a former employee of the Respondent. Her complaints alleged discrimination during employment and in connection with the termination. 1 of 118 Procedural history prior to start of final hearing[3]An ACAS early conciliation certificate [Bundle 1] shows that it was issued on 2 January 2024, and that early conciliation commenced 1 January 2024.[4]The claim form for case number 3301405/2024 (“Claim 1”) was submitted on 31 January 2024 [Bundle 2]. A response was submitted and accepted. [Bundle 34].[5]Claim 1 contained an application for interim relief, and that application was dealt with. I need say no more about it.[6]Another ACAS early conciliation certificate [Bundle 66] shows that it was issued on 16 April 2024, and that early conciliation commenced that same date (16 April).[7]The claim form for case number 3304070/2024 (“Claim 2”) was submitted on 18 April 2024 [Bundle 67]. A response was submitted and accepted. [Bundle 867].[8]Prior to the matter coming before me in July 2025, there had been one preliminary hearing. That was before EJ Moore on 19 August 2024 and the summary and orders are at [Bundle 106]. As discussed, in the summary (and see also EJ French’s orders at [Bundle 105]), the Claimant had written to the Tribunal and the Respondent on 10 March 2024 [Bundle 56 to 58] stating that she was making an application to amend the claim. That application was withdrawn before EJ Moore in the circumstances described, namely: (6) On 10 March 2024 the Claimant made an application to amend her claim to bring complaints of discrimination based on gender, discrimination based on age and for breach of contract. The Respondent objected to this application. (7) Having had no response from the Tribunal to her application, the Claimant lodged a second claim on 18 April 2024 (Early Conciliation having taken place on 16 April 2024), bringing complaints of victimisation, harassment, sex and age discrimination. (8) At the hearing the Claimant agreed that her second claim encompassed the complaints she had sought to add to her first claim by her amendment application and that the application to amend was therefore superfluous. Accordingly the Claimant agreed to withdraw her amendment application while the Respondent agreed that no point would be taken (for the purposes of the question of whether any of the complaints in the second claim were out of time) in respect of the period of time as between 10 March 2024 and 18 April 2024.[9]The summary commented on where the parties had reached in relation to finalising list of issues and on the fact that the Respondent had prepared a draft.[10]The orders were:3.1 On or before 9 September 2024 the Claimant will provide the Respondent with any proposed amendments to the draft list of issues set out above. 2 of 1183.2 On or before 20 September 2024 the Respondent will respond to the Claimant’s proposed amendments.3.3 On or before 2 October 2024 the parties must lodge a list of issues with the Tribunal and must make every reasonable endeavour to lodge a single agreed list of issues.3.4 The Claimant is reminded that any proposed amendments to the Respondent’s draft list of issues must be drawn from the information she provided in her claim forms.[11]EJ Moore listed the final hearing to before a panel of three (judge and two nonlegal members) for 21 to 24 July 2025. For the reasons given to the parties at the time, before the hearing commenced, Acting Regional Employment Judge Tynan reduced the hearing to three days (21 to 23 July 2025) and converted the hearing to a tribunal consisting of a judge only.[12]Regardless of the reasons, there was no agreed list of issues by 21 July and I decided to commence by way of public preliminary hearing to draw up a list of issues, and to make any other appropriate orders, prior to formally commencing the final hearing. In the event, this took most of the day.[13]We discussed several options for the final hearing, and it was mutually agreed that we would start the final hearing on 22 July (at 11am) and continue on 23 July, and then resume in the week commencing 11 August, for 4 days, being 11, 12, 14 and 15 August. The gap in the middle of that week was because the Respondent’s counsel had another hearing that day.[14]The orders made orally. The list of issues prepared as a result of the public preliminary hearing were given to the parties in writing on 22 July 2025. I informed the parties that we would commence the evidence straight away on 22 July. This was partly because of the need, as had been discussed, to try to ensure that the evidence of each of Mr Fredriksson and the Claimant was concluded by the end of 23 July 2025. It was also partly because I wanted each party to have a chance to read the list of issues before confirming that it was accurate. The Hearing and the Evidence[15]13 August 2025 was by video because the Respondent’s counsel also had another hearing that day. We therefore broke from 11.20am to 2pm that day. Other than that, the hearing was in person.[16]Day 0 was the public preliminary hearing on 21 July 2025.[17]Day 1 and Day 2 (22 and 23 July) were the oral evidence of Mr Fredriksson and the Claimant. 3 of 118[18]Day 4 (11 August) was the further discussions about, and decisions about the list of issues. It ended just before 1pm.[19]Days 5 and 6 (12 and 13 August 2025) was the evidence of Mr Berry and Ms Weigand followed by submissions. Day 6 was by video.[20]Days 7 was the Tribunal’s deliberations in absence of parties.[21]Day 8 (15 August 2025) was oral judgment with reasons.[22]The main bundle was numbered up to page 1012. References below to [Bundle XXX] are to page XXX from that bundle. There was also a remedy bundle.[23]The Claimant submitted a document by email on 12 August 2025 (Day 5) at 8:14am which I have read and taken into account. On the face of it, it is a letter from her GP surgery dated 5 August 2025.[24]I had a written statement from the Claimant and also took into account the document at [Bundle 753], dated 9 July 2024, which she supplied in response to orders to prepare an impact statement re disability. The Claimant answered questions on oath from the Respondent's representative and from me. She was the only witness on her side.[25]For the Respondent, I had written statements from each of25.1 Ulf Patrik Fredriksson who was Director Sales North Europe at the relevant times.25.2 Mark Berry who was Country Sales Manager for UK and Ireland. at the relevant times25.3 Katharina Weigand, who was Sr HR Partner for Honeywell Control Systems Limited at the relevant times. She commenced in that role from May 2023 but had worked for the Respondent prior to that. Her knowledge of events prior to May 2023 is based on the Respondent’s records.[26]Each of Mr Berry and Ms Weigand produced a short second statement which I received (in each case) after the start of their oral evidence but before its conclusion.[27]Each of the Respondent’s witnesses swore to the accuracy of their statements (both statements in the cases of Mr Berry and Ms Weigand) and answered questions from the Claimant and from me. The list of issues – Written Reasons[28]List of issues handed to parties on 22 July 2025 read: 4 of 118 List of issues 1. Disability 1.1. Did the Claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the alleged acts of discrimination? The Claimant relies on the condition of menopause symptoms, work related stress and anxiety and Post Traumatic Stress Disorder. The Tribunal will decide: 1.1.1. Did the Claimant have a physical or mental impairment? 1.1.2. Did it have a substantial adverse effect on her ability to carry out normal dayto-day activities? 1.1.3. If not, did the Claimant have medical treatment, including medication, or take other measures, to treat or correct the impairment? 1.1.4. Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures? Were the effects of the impairment long- term? The Tribunal will decide: 1.1.4.1. did they last at least 12 months, or were they likely to last at least 12 months? 1.1.4.2. if not, were they likely to recur? 1.1.5. If the Claimant’s impairment amounted to a disability, did the Respondent/alleged perpetrator know or ought they to have known, that the Claimant had a disability? If so, from when? 2. Time Limits 2.1. Claim 1 (3301405/2024) was presented on 31 January 2024. There was early conciliation from 1 January 2024 to 2 January 2024. 2.2. Claim 2 (3304070/2024) was presented on 18 April 2024. The claim form refers to a new early conciliation certificate - R162919/24/63 – which was issued on 16 April 2024. Whether that certificate provides any extension of any time limit that would otherwise apply is a question of fact to be determined by the Tribunal which will determine to which “matter” (or matters) the new certificate relates, and whether that is different to the “matter” (or matters) to which the January certificate relates. 2.3. Any act or omission which took place more than three months before presentation of the relevant claim form (allowing for any extension under the early conciliation provisions) is potentially out of time, so that the tribunal may not have jurisdiction. 2.4. Was there conduct extending over a period which is to be treated as done at the end of the period? 2.5. Is such conduct accordingly in time? 2.6. Was the complaint presented within such other period as the tribunal considers just 5 of 118 and equitable? NB the Respondent has stated that it will not take any point as regards the period of time between 10 March 2024 (the date of the application to amend) and 18 April 2024 (the date of the second claim form). 3. Harassment (s. 26(1) Equality Act 2010) (Disability; Age; Sex) 3.1. The Claimant alleges the following acts of harassment related to disability: 3.1.1. On 9 March 2023, Mark Berry refused to allow the Claimant to travel to Leeds by train 3.1.2. On 10 March 2023, Mark Berry ridiculed the Claimant for deciding not to travel to Leeds by car 3.1.3. On 10 March 2023, Mark Berry refused to allow the Claimant to attend the meeting by video 3.1.4. On 6 September 2023, when the Claimant’s train arrived late, Mark Berry chastised the Claimant for this, and said: “This is why we give you a car 3.1.5. On the same day, Mark Berry kept texting to ask the Claimant where she was 3.1.6. On the same day, Mark Berry required the Claimant to walk in the heat 3.1.7. On the same day, when the Claimant arrived, Mark Berry being said that 3.1.8. Refused to allow the Claimant to retract resignation (the Claimant states that this is not disability related harassment but is disability discrimination – which type of disability discrimination needs to be clarified) 3.1.9. Patrik Fredriksson had investigatory meeting on 22 November 2023: the 3.1.10. Patrik Fredriksson had investigatory meeting on 22 November 2023: the Harassment - Age 3.2. The Claimant alleges the following acts of harassment related to age: 3.2.1. Showing the Claimant at the bottom of a table of sales figures by comparison with younger colleagues. 3.2.2. On 7 July 2023, Mark Berry holding meeting with the Claimant, attended by HR, and making accusations 3.2.3. On 6 September 2023, when the Claimant’s train arrived late, Mark Berry chastised the Claimant for this, and said: “This is why we give you a car 6 of 118 3.2.4. On the same day, Mark Berry kept texting to ask the Claimant where she was 3.2.5. On the same day, Mark Berry required the Claimant to walk in the heat 3.2.6. On the same day, when the Claimant arrived, Mark Berry being said that 3.2.7. Patrik Fredriksson had investigatory meeting on 22 November 2023: the 3.2.8. Patrik Fredriksson had investigatory meeting on 22 November 2023: the Harassment - Sex 3.3. The Claimant alleges the following acts of harassment related to sex: 3.3.1. Mark Berry made derogatory comments about the suitability of women with children for sales roles specifically a comment made that women should not go into sales because when they have a baby they lose interest in the job 3.3.2. Patrick Fredriksson said that you “cannot be half pregnant” when referencing doing something in business - Made at the partner kickoff event. 3.3.3. At a team dinner in Birmingham, Mark Berry made comments about getting into a hot bath to kill off sperm 3.3.4. The Claimant had to take her son on multiple occasions for work events and have him stay on his own in a hotel room whilst the Claimant went out with her work colleagues as there was pressure on the Claimant to attend these types of events. 3.3.5. On 5 March 2023, instructions from Mark Berry to attend a meeting in Leeds 3.3.6. On 9 March 2023, Mark Berry refused to allow the Claimant to travel to Leeds by train 3.3.7. On 10 March 2023, Mark Berry ridiculed the Claimant for deciding not to travel to Leeds by car 3.3.8. On 10 March 2023, Mark Berry refused to allow the Claimant to attend the meeting by video 3.3.9. On 14 March 2023, Mark Berry put pressure on the Claimant to stay overnight for the 2 day partner event (in April). 3.3.10. On 14 March 2023, Mark Berry asked the Claimant at what age she would leave her son alone overnight 3.3.11. Between 24 March 2023 and 4 April 2023, Mark Berry sent a series of emails criticising the Claimant for not having childcare in place for the Partner Kick Off in Birmingham 7 of 118 3.3.12. On 12 April Mark Berry’s reply to the Claimant’s email copying in Pia 3.3.13. On 12 April 2023, Pia suggested that the Claimant could bring her son to the hotel 3.3.14. On 13 April 2023, Mark Berry implied that the Claimant’s job might be at risk if she could not arrange childcare for overnight stays 3.3.15. On 13 April 2023, at a video meeting, Mark Berry sought to insist that the Claimant stay overnight at the PKO – Partner Kick Off Meeting 3.3.16. On 13 April 2023, at a video meeting, there was implication by Mark Berry that the Claimant’s job was at risk if she would not stay overnight 3.3.17. In June / July 2023, not allowing the Claimant to work on Unipart 3.3.18. On 7 July 2023, Mark Berry holding meeting with the Claimant, attended by HR, and making accusations 3.3.19. In July 2023, the Claimant was made to report into both Patrik Fredriksson and Mark Berry 3.3.20. On 6 September 2023, when the Claimant’s train arrived late, Mark Berry chastised the Claimant for this, and said: “This is why we give you a car 3.3.21. On the same day, Mark Berry kept texting to ask the Claimant where she was 3.3.22. On the same day, Mark Berry required the Claimant to walk in the heat 3.3.23. On the same day, when the Claimant arrived, Mark Berry being said that 3.3.24. Patrik Fredriksson had investigatory meeting on 22 November 2023: the 3.3.25. Patrik Fredriksson had investigatory meeting on 22 November 2023: the 3.3.26. Threats of termination and “management out” of the business by Mark Berry 3.3.27. Showing the Claimant on the sales leader boards as being the bottom of the ranking 3.4. Can the Claimant prove that in the conduct described above occurred. If so, in each case: 3.5. Was that conduct unwanted? 3.6. Did it relate to the specified protected characteristic? 3.7. Did the conduct have the purpose of violating the Claimant’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 3.8. Did the conduct have (taking into account the Claimant’s perception, the other 8 of 118 circumstances of the case and whether it is reasonable for the conduct to have that effect) the effect of violating the Claimant’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 4. Direct Age Discrimination (s.13 Equality Act 2010) 4.1. Was the Claimant subjected to the less favourable treatment on the grounds of her age? The alleged less favourable treatment is that the Claimant’s comparator was given a “soft landing” into the sales team, by 4.1.1. being allowed to pick their accounts on their named accounts list 4.1.2. given significantly larger accounts to work on, and thus 4.1.3. given an advantage over the Claimant who was bullied, performance managed, and whose job was repeatedly threatened due to lack of performance when Ms Phillips was not performance managed in this way. 4.1.4. that the Claimant was threatened with termination of employment. The comparator is Judith Phillips who the Claimant believes is in her mid-thirties. 4.2. If the treatment occurred, then was it less favourable treatment, and was it because of age? 4.2.1. If so, can the Respondent show the treatment was a proportionate means of achieving a legitimate aim? If the Respondent is relying on this defence, it needs to specify / clarify the legitimate aim. 5. Whistleblowing detriment and Automatic Unfair Dismissal (ss. 47 and 103A Employment Rights Act 1996) 5.1. Were the alleged disclosures referred to at paragraph 41 of Claim 1 made? 5.2. If so, in each case, did it amount to a qualifying disclosure? [If so, the Respondent does not dispute that they were protected disclosures in accordance with sections 43C to 43H ERA] Detriment 5.3. The Claimant asserts that she was subjected to the following detriments on the ground of alleged protected disclosures referred to at paragraph 45 of the claim form: 5.3.1. 7 July 2023 meeting regarding performance with Mark Berry 5.3.2. 20 September 2023 meeting with Katharina Weigand and Patrik Fredriksson. 5.3.3. Patrik Fredriksson excluded the Claimant from customer and team meeting on 22 November 2023 5.3.4. 22 November 2023 meeting for the purpose of discussing concerns around 9 of 118 misrepresentation of sales visits and reporting. 5.3.5. Refusal to agree to the withdrawal of the Claimant’s notice of resignation. 5.3.6. Failure to attribute sales figures from the Claimant’s Unipart account to her performance figures for the purpose of her monthly reviews. 5.3.7. Removing the Claimant from the Unipart logistics account in July 2023. 5.4. In each case, did the conduct occur? If it did, has the Respondent shown (as per section 48(2) ERA) the ground on which it was done? Was it on the grounds of the Claimant making protected disclosure? Automatic Unfair Dismissal 5.5. Was the Claimant dismissed?. The Claimant says she was constructively dismissed and relies on the matters alleged at paragraph 5.2 above, with exception of paragraph 5.2.5. She also relies on the grievance not being upheld and extended PIP and the contents of the audio recordings. To the extent that the Tribunal decides that that conduct occurred, did those matters constitute a fundamental breach of the Claimant’s contract of employment and did the Claimant resign in response to them? 5.6. If the Claimant was dismissed was the reason for her dismissal, or principal reason if more than one, that she made one or more of the protected disclosures described in paragraph 5.1? NEW CLAIMS FROM CLAIM 2 6. Direct Sex Discrimination (s.13 Equality Act 2010) 6.1. Was the Claimant subjected to the less favourable treatment on the grounds of her sex? 6.2. The Claimant relies on the acts set out as acts of harassment. 6.3. The alleged less favourable treatment is that the Claimant was treated less favourably than Mr Mark Hoole and Jason Walden in that the comparators were not invited to the same disciplinary investigatory meeting even though their circumstances were similar 6.4. If the treatment occurred, was it less favourable treatment, and was it because of sex? 7. Victimisation 7.1. The alleged protected act are first grievance around July 2023 and second grievance around October / November 2023 and stating that she could not do overnight stays 10 of 118 because of childcare. Were any or all of those a protected act as defined in section 27 the Equality Act 2010 ("EQA"). 7.2. If so, was the Claimant subjected to any detriment because of them. 7.2.1. Had to continue to report into Mark Berry after raising grievance(s). 7.2.2. On 22 November 2023, Patrik Fredriksson had investigatory meeting. 7.2.3. On around 7 September 2023, Mark Berry sent email to Patrik Fredriksson to say that the Claimant’s performance process was not moving forward sufficiently quickly 7.2.4. Mark Berry and Patrik Fredriksson did not allow the Claimant to work on Unipart and Wincanton[29]There were also accompanying case management orders which (amongst other things), stated:• Paragraph 3.1.8 is a place holder. The Claimant has confirmed that she does not pursue that allegation as harassment (related to any protected characteristic) but she does assert that it is disability discrimination. It can go forward, in principle, as an alleged act of disability discrimination subject to clarification of which type(s) of disability discrimination the Claimant alleges.• Paragraph 4.2.1 can remain in the list provided the Respondent clarifies the alleged legitimate aim (paragraph 51 of the Grounds of Resistance to Claim 1 is noted[30]When we resumed the hearing in August, having heard from both sides, I made amendments to the list of issues. Contrary to the Respondent’s position, this did not amount to an amendment to the claim, but was because I accepted that the proposed amendments to the list of issues accurately reflected the contents of the claim forms as presented. The Respondent made clear that it disagreed with the decision and it requested written reasons for it. This section of this document contains those reasons.[31]In relation to paragraph 3.1.8 of draft list of issues (supplied 22 July 2025), the Claimant said she wanted that allegation to be treated as harassment related to disability. The Respondent did not object to that.[32]She also said that she wanted that same alleged act (refusal to allow retraction of resignation) to be treated as disability discrimination within the definition in section 15 EQA and also as indirect disability discrimination.[33]The thing that the Claimant said arose in consequence of her disability was that she resigned. Based on the Particulars of Complaint, I was satisfied that the Claimant had made clear that - according to her – her alleged disability was a reason for her decision to “resign” (that is, to do the thing which is alleged to be constructive dismissal). She did not need to apply to amend the claim in order to allege that her resignation was “something arising in consequence of [her] 11 of 118 disability”. Further, the fact that she was alleging that the refusal to allow her to retract the resignation amounted to disability discrimination was something that was also clear from the Particulars of Complaint. What had been unclear (including during the discussions on 21 July 2025), was which type of disability discrimination she was alleging.[34]Based on the clarification provided on 11 August, I was satisfied that that complaint of section 15 discrimination should be added to list of issues.[35]For indirect disability discrimination, the Claimant said orally that the PCP was that the Respondent had a PCP that it did not allow persons who had resigned to retract the resignation. We spent some time going through each Particulars of Complaint document to see if this PCP was alleged anywhere. The closest was paragraph 48 for Claim 1 on [Bundle 29]. My assessment, however, was that that did not identify the PCP which the Claimant now suggested. Further, taking the documents as a whole, my assessment was that the Claimant was alleging the exact opposite; namely that the refusal to allow her to retract was because of the Claimant’s personal characteristics and/or complaints/protected disclosures she had made, rather than because the Respondent was applying a general policy. The Claimant referred me to where the Respondent had said (in the Claimant’s opinion) that it was applying a general policy, but my decision was that her own statements of case argued against that proposition rather than adopted it.[36]A (successful) amendment application was therefore required if the Claimant was going to be able to purse this complaint of indirect disability discrimination (and have it added to list of issues). The Claimant decided not to make such an application.[37]The attachment to the Claimant’s 5 August 2025 email also included (on the second page) three things said to be “Harassment based on sex and age and disability”. After some discussion it was accepted by the Claimant that those things were not included in the Particulars of Complaint. She therefore needed to make an application to amend. I asked how long she would need in order to prepare a written application to amend. She made the decision that she would not make such an application.[38]The Claimant alleged that list of issues should include that the act alleged at paragraph 7.2.4 (so as alleged victimisation) should additionally be added to list of issues as indirect and direct sex discrimination. My decision was that neither of these proposed complaints were included in the statements of case, and that therefore an application to amend would be required. The Claimant decided not to make such an application.[39]The Claimant argued that list of issues should include a complaint of indirect sex discrimination. The alleged PCP was: 12 of 118 Everyone with job title Senior Accounts Manager who reported in to Mr Berry had to stay overnight during the Partner Kick Off Meeting.[40]I had, by this stage, already heard the Claimant’ s witness evidence about the Partner Kick Off Meeting (“PKO”) and the events that surrounded it.[41]The dates of the claim forms and early conciliation and previous orders are as set out above.[42]The Claim Form (ET1) for Claim 1 is at [Bundle 2]. One of the boxes ticked in Section 8 is for “I was discriminated against on the grounds of: sex (including equal pay)”. [Bundle 7].[43]The Particulars of Complaint attached to Claim 1 commenced at [Bundle 14]. Paragraph 12 [Bundle 16] included allegations that (in and after) January 2023, Mr Berry had said that “it was a problem that [the Claimant] was not able to attend overnight work events … it looked bad … it was being frowned upon within the company … it was expected that [the Claimant] should attend such events”. The same paragraph also makes clear that the Claimant alleges that(i) there actually was a connection between her (alleged) inability to attend such events and her childcare responsibilities and(ii) that the Respondent knew that, and expressly asked her what plans she was making to arrange “childcare coverage” so that she could attend events.[44]Paragraph 13 includes an allegation that the Claimant was “worried” that if she did not attend “these work social events” then she would be dismissed. The paragraph again makes expressly clear that the Claimant was alleging a link between her alleged inability to attend (or difficulties in making arrangements for) such events. She also alleges that she made this clear to Mr Berry.[45]Paragraph 14 says that she is the sole carer for her son and that “it was not possible for me to attend overnight events”. It claims that she had explained this to Mr Berry on “many” occasions.[46]The Particulars of Complaint cover a range of other issues, including alleged protected disclosure detriment and alleged automatic unfair dismissal. Under the heading “harassment” [Bundle 28] as paragraph 47, she included the allegation: I believe that the company has a boy’s club within the senior management team that does not allow for strong women to flourish in this type of toxic culture. I believe that by continuingly challenging me over my childcare restrictions and not allowing the occasional work social/meeting to be made at a location that I could fit around my childcare responsibilities made the work environment toxic and an unhealthy place for a woman to work in. I should not be made to feel that I should put 'beers with the boys' ahead of my legal responsibilities to care for my child, to have a successful career. This I believe caused me to feel harassed based on my gender and not included as part of the team. 13 of 118[47]Under the heading “injury to feelings”, paragraph 49 included: My injury to feeling is immense, no female should be made to feel inadequate in the workplace because they have a legal obligation to look after their child, rather than attend booze filled work events, nor should they …[48]That sentence continued after “nor should they …” and lists some things which she attributes to disability rather than sex / childcare.[49]As stated above, EJ Moore recorded the Claimant as having withdrawn the amendment application in the circumstances described (including what the Respondent had said about time limits).[50]The ET1 for Claim 2 also has the box for “sex (including equal pay)” ticked.[51]The Particulars of Complaint for Claim 2 commenced at [Bundle 79]. Within that document, the Claimant includes an introduction which states: the additional items are as follows; Sex Discrimination Age Discrimination Harassment Victimisation[52]There is then a “Details of Claim” section which does not include sub-headings or numbered paragraphs.[53]The bottom paragraph on [Bundle 79] refers to a comparator. There are allegations that this person was treated more favourably than the Claimant. The implication in the opening sentence is that the relevant protected characteristic is “age”. However, the paragraph does conclude with the sentence: Also, this person did not have the same childcare responsibilities that I had.[54]I infer from the word “also” that the intended allegation is that (as well as age being a factor in why this person was treated differently to the Claimant) the Claimant is alleging that the treatment that she received – in comparison to at least one other person – was connected to the fact that she had childcare responsibilities.[55]Over the page, the Claimant alleged: Between December and March 2023 my manager had been harassing me over my childcare responsibilities. He was not happy that I could not attend overnight networking events. Attendance to these events did not form part of my contract, and I had already explained to my manager in front of an employment panel at my interview that I was a lone parent, and that I parent 100% on my own. However, my manager started to single me out, and requested 1-2-1 meetings to discuss me finding overnight childcare so I could attend these types of events. 14 of 118[56]Further down the page, she wrote: My manager created an unsafe environment for me, he told me that by me not having overnight care for my son was putting a strain on my job, he said that it was being frowned upon by the business and implied that my position within the company was a threat because of my childcare responsibilities. … my boss was not respecting the fact that I am a lone parent with sole responsibility for my son. Having a child did not affect my ability to carry out my duties and my bosses' line of questioning made me feel very uncomfortable. He asked me at what age I could leave my son overnight on his own and interrogated me over leaving my son with friends and family, … I cannot leave [my son] overnight with a stranger, let alone leave him on his own and I don't have family close by to support us. In the end I had to be firm with my boss and point out that attending evening events did not form part of my employment contract and that it was not an option for me to stay overnight at such events. This is when I could see a dramatic change in our relationship for the worse[57]As mentioned above, no final list of issues had been agreed between the parties by 21 July 2025. The list contained in EJ Moore’s summary was expressly stated to be a draft – not a final – version. It was introduced by [Bundle 108]: (10) The Respondent had prepared a draft list of issues for the hearing. The Claimant was concerned that she had not had a proper opportunity to consider and make amendments to that list prior to the hearing. (11) The following draft list of issues was therefore agreed following discussion at the hearing, together with a timetable for a final list of issues to be agreed between the parties and lodged with the Tribunal:[58]The draft did not contain a heading for indirect sex discrimination. Under the heading “harassment”, at item 3(c)(j), an example of alleged harassment related to sex was stated to be: (j) Challenges in relation to the Claimant not staying overnight for work related evening events[59]Mark Berry’s witness statement includes some comments about childcare. Paragraph 54 is not the only place, but paragraph 54 reads: 54. But I also explained the importance of events such as the Partner Kick Off (which only occurs once a year) which is important for Enterprise Account Managers to attend. Overnight stays were generally expected on average on only one or two occasions a year. I had not anticipated Yasmin having any issue with that as she had attended an event in Prague earlier in her employment and that had obviously involved attendance overnight. Again, Yasmin did not attend the Partner kick off at the Belfry in Birmingham and she was in no way penalized for that. I did, however, explain the reasons why there had been an expectation was that she attend overnight on an occasional basis. When Yasmin made clear the childcare difficulties she had, I assured her that for future such events we would work it out somehow.[60]Generally speaking, for a claim with various allegations of discrimination / protected disclosure detriment, a list of issues ought to have been finalised before the start of the hearing (and usually before witness statements are prepared, and quite often before the first attempt at document disclosure). 15 of 118[61]In Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185, the Court of Appeal conducted a thorough examination of the previous cases relating to, and gave guidance for, the situation where a list of issues has been produced and, at some point after that, a claimant argues that a complaint has been omitted from that list. This might be a point that is raised after judgment (so part of an argument that the judgment was defective because it failed to dispose of a complaint that had been presented) or else might be raised earlier than that (so maybe at the start of the final hearing, or during the submission phase after the evidence has been heard at the final hearing, for example).[62]I have considered all the guidance carefully, and do not need to cite extensively from the very clear guidance given. It is notable that, the court of appeal acknowledges the possibility of a party having first raised a point, but then abandoning it. In such circumstances, if the true analysis is that a complaint has been abandoned then, even in the absence of express words of withdrawal, “the ET is not obliged to address those which are raised but later abandoned: see Mensah v East Hertfordshire NHS Trust [1998] IRLR”. However, that is an exception to the fact that the “core function of the tribunal” is to address issues that emerge “from an objective analysis of the statements of case”. The court of appeal stated:39. ... A failure by the tribunal to identify and address those claims is liable to amount to a breach of its core duty and hence an error of law. A failure to identify and determine a claim that does not emerge from such an analysis can amount to an error of law but only in rare or exceptional circumstances ... It is in this overall context that the role of an agreed list of issues falls for consideration.40. A list of issues is not a pleading but a case management tool. The main purpose of such a document is to summarise the existing pleadings not to amend them. On the other hand, as Mensah shows, a party may conduct itself in such a way as to lose the right to have the ET decide a pleaded issue, thereby reducing the scope of the tribunal’s corresponding duty. An agreed list of issues is one way in which that could in principle be done. ... A tribunal will usually be entitled to confine its attention to the issues on the list. By way of exception, however, it may be necessary in the interests of justice to depart from even an agreed list. There are at least two distinct categories of situation in which that may be so. The first is where a pleaded claim has been omitted from the list in circumstances that do not amount to abandonment of the claim. The second ...[63]In this case, it is extremely unfortunate that no finally agreed list was ready by 21 July, and also unfortunate that the efforts on 21 July did not finally resolve that. I take into account that – in my judgment – I did give a clear explanation of indirect discrimination to the Claimant on 21 July and she did not state on that occasion that she believed that that was one of her complaints (just as she had obviously not done so before EJ Moore either).[64]That being said, the Claimant is a litigant in person, and neither I nor EJ Moore reached the point of informing the parties that we regarded the list as “final”. These points are highly relevant to the assessment of whether the Claimant should be 16 of 118 taken to have “abandoned” any complaint of indirect sex discrimination. However, of course, the issue of potential abandonment would arise only if the complaint of indirect sex discrimination (as identified on 11 August 2025) actually did emerge “from an objective analysis of the statements of case”.[65]On the Respondent’s case, the indirect sex discrimination claim required the Claimant to apply to amend the claim (in accordance with the principles exemplified by Selkent Bus Company Ltd v Moore EAT/151/96). Further, according to the Respondent, such application ought to be refused, taking into account the relative injustice and hardship.[66]I disagree with the Respondent’s contention. No application to amend the claim is required, because the complaint is already included in the claims as presented.[67]In reaching this conclusion, I did not ignore the fact that when referring to childcare in the respective Particulars of Complaint documents, she was sometimes doing it in the context of comparing her treatment to that of someone else (so the language of a direct discrimination complaint) or else suggesting that it was the Respondent’s motivation for conduct which she alleged amounted to harassment. However, I am required to – and happy to – read the contents of the two ET1s and two Particulars of Complaint documents as a whole, and analyse them. While it is not my role to “assist” a litigant in person (something which the Respondent asserts that I was doing, and which, for the avoidance of doubt, I was not doing), it is my duty - when carrying out an objective analysis of the contents - to take account of the fact that the claim documents were drafted by a litigant in person.[68]It is entirely clear from what the Claimant wrote that she was alleging that there was an expectation (for her and others, so not just her) to attend certain events. It is entirely clear from what the Claimant wrote that she was alleging that complying with the expectation was difficult for her. It is entirely clear from what the Claimant wrote that she was alleging that the reason for the difficulty was her childcare. It is entirely clear from what the Claimant wrote that she was alleging that she made clear to the Respondent that(i) she had difficulty complying with the (alleged) expectation and(ii) that this was because of childcare.[69]It is sufficiently clear that she was alleging that she was drawing a link between childcare responsibilities and being female.[70]My decision therefore was to amend the draft list of issues so as to add the proposed indirect discrimination complaint. This was not an amendment to the claim, but was because that I was satisfied that the Claimant’s failure to do more to ensure that indirect sex discrimination was included in earlier versions of list of issues did not amount to abandonment of a complaint that (I decided) was clearly one of those which had been already presented. 17 of 118[71]As I said at the time, I have made no decisions one way or the other about whether the Claimant’s failure to do more to ensure that indirect sex discrimination was included in earlier versions of list of issues amounted to unreasonable conduct of the litigation. If there were to be an application for costs (for example, if the Respondent had applied for postponement of the hearing on the basis that it asserted had not known that it would have to deal with such a complaint) then – and only then – would I decide whether the Claimant had acted unreasonably within the meaning of Rule 74. (As mentioned, I did consider whether the conduct relied on by the Respondent as being a reason to decline to vary list of issues amounted to abandonment of the complaint, and I decided that it did not).[72]The Respondent did not apply to postpone/adjourn the final hearing to later dates. I made clear that, taking into account what the Respondent said about the need for it to carry out document searches and amend Grounds of Resistance to deal with the indirect sex discrimination complaint, I was willing to adjourn to later dates. However, neither party wanted that. Following discussion, we adjourned on 11 August, and resumed on 12 August, on the basis that we were able to add (part of) 13 August to the previously planned dates.[73]I also made clear that there could be applications for the Claimant to be recalled to give further oral evidence. Finalisation of list of issues / Amended Grounds of Resistance[74]The Respondent submitted an amended response dated 12 August 2025.[75]The final list of issues was therefore the version sent to the parties on 22 July 2025 plus: 8. Discrimination arising from disability (Equality Act 2010 section 15) 8.1. Did the Respondent treat the Claimant unfavourably by: 8.1.1. Refusing to allow the Claimant to retract her resignation 8.2. Did the following things arise in consequence of the Claimant’s disability: 8.2.1. Her decision to submit a resignation? 8.3. Was the unfavourable treatment because of any of those things 8.4. Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: 18 of 118 8.4.1. The Respondent has an aim of respecting the decisions of their employees who wish to leave employment. This is a legitimate aim as it ensures no employee feels obliged to continue to work for the Respondent when they do not wish to. It is therefore proportionate not to accept a retraction of a resignation where the reason given for resigning remains the prevailing view of the employee. 8.4.2. The Respondent has an aim of maintaining finality in the ending of employment. This is legitimate to reduce Staff disruption, maintain business continuity and lessen administrative burden. Further, it ensures employees do not harbour an expectation that they can resign and retract resignations on a whim. It is therefore proportionate not to accept retractions to avoid creating this expectation in staff. 8.4.3. The Respondent has a legitimate aim of ensuring employees are aware that resignations will lead to departure. This is legitimate as it ensures that employees think carefully about their decision before resigning. It is therefore proportionate that the Respondent maintains a stance of not allowing resignations to be withdrawn. 8.4.4. The Respondent has the aim of exercising the legal rights afforded to it, such as accepting the termination of the employment contract where an employee has decided to resign. This aim is legitimate as it affords the Respondent the same right and autonomy in its decision making as the law affords an employee in their decision to resign. It is proportionate in those circumstances, particularly where a resignation was unequivocal, for a Respondent to exercise the right to accept it unequivocally. Once this right has been exercised, it is proportionate for the decision not to be re-opened by the Respondent. 8.4.5. The Respondent has the aim of managing its business affairs efficiently. This aim is legitimate in ensuring effective use and allocation of management time and resources. It was therefore proportionate in light of the performance issues in respect to the Claimant to decide not to allow a retraction of her resignation. The Claimant was not a strong performer for there to be a commercial advantage in retaining the Claimant now she wishes to retract her resignation. 8.5. The Tribunal will decide in particular: 8.5.1. was the treatment an appropriate and reasonably necessary way to achieve those aims; 8.5.2. could something less discriminatory have been done instead; 8.5.3. how should the needs of the Claimant and the Respondent be balanced? 8.6. Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date? 19 of 118 9. Indirect sex discrimination (Equality Act 2010 section 19) 9.1. A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCP: 9.1.1. Everyone with job title Senior Accounts Manager who reported in to Mr Berry had to stay overnight during the Partner Kick Off Meeting 9.2. Did the Respondent apply the PCP to the Claimant? [The Respondent accepts that there is a policy of requesting sales employees to stay overnight at the annual Partner Kick Off (PKO) event.] 9.3. Did the Respondent apply the PCP to men? 9.4. Did the PCP put women at a particular disadvantage when compared with men? The Claimant relies on the childcare disparity. 9.5. Did the PCP put the Claimant at that disadvantage? 9.6. Was the PCP a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: 9.6.1. promoting strong relationships between Salespeople and Partners. 9.7. The Tribunal will decide in particular: 9.7.1. was the PCP an appropriate and reasonably necessary way to achieve those aims; 9.7.2. could something less discriminatory have been done instead; 9.7.3. how should the needs of the Claimant and the Respondent be balanced? The Law Equality Act 2010 (“EQA”)
The Law
[76]The burden of proof provisions are codified in s136 EQA and s136 is applicable to all of the contraventions of the Equality Act which are alleged in these proceedings.(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. 20 of 118(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[77]It is a two stage approach.77.1 At the first stage, the Tribunal considers whether the Tribunal has found facts - having assessed the totality of the evidence presented by either side and drawn any appropriate factual inferences from that evidence - from which the Tribunal could conclude - in the absence of an adequate explanation - that a contravention has occurred. At this first stage it is not sufficient for the Claimant to simply prove that the alleged treatment did occur. There has to be some evidential basis from which the Tribunal could reasonably infer that there was a contravention of the act. The Tribunal can and should look at all the relevant facts and circumstances when considering this part of the burden of proof test.77.2 If the Claimant succeeds at the first stage then that means the burden of proof is shifted to the Respondent and the claim is to be upheld unless the Respondent proves the contravention did not occur.[78]In Efobi v Royal Mail [2021] UKSC 33, the Supreme Court made clear that the changes to the wording of the burden of proof provision in EQA compared to the wording in earlier legislation do not represent a change in the law. Thus when assessing the evidence in a case and considering the burden of proof provisions, the Tribunal can have regard to the guidance given by the Court of Appeal in, for example, Igen v Wong [2005] EWCA Civ 142 and Madarassy v Nomura International [2007] EWCA Civ 33.[79]As per paragraph 57 of Madarassy, “could decide” in section 136(2) EQA is equivalent to: a reasonable tribunal could properly decide from all the evidence before it.[80]The burden of proof does not shift simply because, for example, the claimant proves that there was a difference in treatment (in comparison to someone whose relevant protected characteristics were different) and/or that there was unwanted conduct and/or that there was a protected act. Those things only indicate the possibility of discrimination or harassment or victimisation. They are not sufficient in themselves to shift the burden of proof; something more is needed.[81]It does not necessarily have to be a great deal more: Deman v Commission for Equality and Human Rights 2010 EWCA Civ 1279. For example - depending on the facts of the case - a non-response from a Respondent, or an evasive or untruthful answer from a Respondent or an important witness, could be the “something more” that is required. In some circumstances, it may simply be the context of the act itself. In SRA v Mitchell, the EAT upheld a tribunal’s decision 21 of 118 that the burden of proof shifted based on a finding that the employer had given a false explanation of the less favourable treatment. That being said, it is important for us to remind ourselves that the mere fact alone that a Tribunal rejects the employer’s explanation for some particular act or omission does not mean that the burden of proof necessarily shifts, see for example Raj v Capita Business Services.[82]Recent EAT cases have re-emphasised the importance of actually adhering to the two stage approach set out in section 136. We have taken note of the comments in Field v Steve Pye and Co (KL) Limited and ors [2022] EAT 68 and of the fact that several subsequent EAT decisions have cited those comments with approval.[83]As per Essex County Council v Jarrett [2015] UKEAT 0045/15/0411, where there are multiple allegations, the Tribunal has to consider each allegation separately when determining whether the burden of proof has shifted in relation to each one.83.1 That does not mean that we must ignore the rest of the evidence when considering one particular allegation. The opposite is true. When there are multiple allegations, and/or a lot of facts found as part of the background information, a Tribunal has to stand back and consider all of the evidence in the round to consider whether any inference of discrimination/victimisation should be drawn: see Qureshi v Victoria University of Manchester. There must be no failure to consider ‘the bigger picture’, as it was described in Humby v Barts Health NHS Trust [2024] EAT 17.83.2 It just means that we assess separately, for each allegation, whether the burden of proof shifts or not, taking into account all of the facts which we have found. EHRC Codes[84]By virtue of section 15 of the Equality Act 2006, the Tribunal should take the Equality and Human Rights Commission’s Equality Act 2010 Code of Practice into account. The EHRC has published both an Employment Statutory Code of Practice and a supplement to it. Time Limits for EQA complaints[85]In EQA, time limits are covered in s123, which states (in part): (1) Subject to sections 140A and 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. (3) For the purposes of this section— 22 of 118 (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[86]In applying Section 123(3)(a) of EA 2010, the tribunal must have regard to the guidance in Commissioner of Police of the Metropolis v Hendricks ([2002] EWCA Civ 1686; [2003] ICR 530); Lyfar v Brighton and Hove University Hospitals Trust [2006] EWCA Civ 1548. Applying that guidance, the Court of Appeal has noted that in considering whether separate incidents form part of an act extending over a period, one relevant - but not conclusive - factor is whether the same or different individuals were involved in those incidents: Aziz v FDA 2010 EWCA Civ 304. The tribunal must consider all relevant circumstances and decide whether there was an act extending over a period or else there was a succession of unconnected or isolated specific acts. If it is the latter, time runs from the date when each specific act was committed.[87]A crucial distinction is between – on the one hand – an invariable rule which will inevitably result in a discriminatory outcome each time and – on the other hand – a discretionary decision made under a policy, in which the discretionary decision may sometimes result in an employee getting the desired outcome, and sometimes not. In the latter case, the discretionary decision causes the time to run (for a complaint based on that decision), regardless of arguments about whether the policy itself is discriminatory.[88]In considering whether it is just and equitable to extend time the Tribunal should have regard to the fact that the time limits are relatively short. That being said, time limits are there for a reason and the default position is to enforce them unless there is a good reason to extend. That does not meant that the lack of a good reason for presenting the claim in time is fatal. On the contrary, the lack of a good reason for presenting the claim in time is just one of the factors which a tribunal can take into account, and it might possibly be outweighed by other factors.[89]The Tribunal has a broad discretion to extend time when there is a good reason for so doing. Parliament has chosen to give the Employment Tribunal the widest possible discretion. Unlike, say, the Limitation Act 1980, s 123(1) EQA does not specify any list of factors to which the tribunal is instructed to have regard, and it is wrong to interpret it as if it contains such a list. A tribunal can consider the list of factors specified in s 33(3) of the Limitation Act 1980, but if it does so, should only treat those as a guide, and not as something which restricts its discretion. 23 of 118[90]The factors that may helpfully be considered include, but are not limited to:90.1 the length of, and the reasons for, the delay on the part of the Claimant;90.2 the extent to which, because of the delay, the evidence is likely to be less cogent than if the action had been brought within the time limit specified in Section 123;90.3 the conduct of the Respondent after the cause of action arose, including the extent (if any) to which it responded to requests for information or documents[91]In particular, it will usually be important for the Tribunal to pay attention to (and, where necessary, make specific findings about) “whether the delay has prejudiced the Respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh)”: Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640. Harassment – section 26 EQA[92]Harassment is defined in s.26 of the Act. (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.[93]It needs to be established on the balance of probabilities that the Claimant has been subjected to unwanted conduct which had the prohibited purpose or effect. However, to succeed in a claim of harassment, it is not sufficient for a Claimant to prove that the conduct was unwanted or that it had the purpose or effect described in s.26(1)(b). The conduct also has to be related to the particular characteristic.[94]Section 136 EQA applies and so the Claimant does not necessarily need to prove on the balance of probabilities that the conduct was related to the protected characteristic. If the tribunal finds facts from which it could conclude that the conduct was related to the protected characteristic then the burden of proof shifts. 24 of 118[95]The use of the word “or” in s.26(1)(b) (twice) is important.[96]“Purpose” and “effect” are two different things, and must be considered separately. Where it was the wrongdoer’s “purpose” to do the things listed in s.26(1)(b), then the complaint can succeed even if the conduct did not successfully have that effect. Correspondingly, where the conduct does have the effect described in s.26(1)(b), then the complaint can succeed even if the Respondent (or the person whose conduct it was) did not have the intention of causing that effect.[97]In Land Registry v Grant Neutral citation [2011] EWCA Civ 769, the Court of Appeal said that when considering the effect of the unwanted conduct, and when analysing s.26(4), it is important not to cheapen the words used in s.26(1). 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. The Claimant was no doubt upset … but that is far from attracting the epithets required to constitute harassment. In my view, to describe this incident as the Tribunal did as subjecting the Claimant to a “humiliating environment” when he heard of it some months later is a distortion of language which brings discrimination law into disrepute.[98]When assessing the effects of any one incident of several alleged acts of harassment then it is not sufficient really to consider each instant by itself. We obviously must consider each incident by itself, but, in addition, we must stand back and look at the impact of the alleged incidents as a whole. Discrimination arising from disability[99]Discrimination arising from disability is defined in s.15 of the Act. 15 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.[100]The elements that must be made out in order for the Claimant to succeed are that: there must be unfavourable treatment; there must be something that arises in consequence of the Claimant’s disability; the unfavourable treatment must be because of, in other words caused by, the something that arises in consequence of the disability. Furthermore, the alleged discriminator must also be unable to show either that the unfavourable treatment was a proportionate means of 25 of 118 achieving a legitimate aim or, alternatively, that it did not know and could not reasonably have been expected to know that the Claimant had the disability.[101]The word ”unfavourably” in s.15 is not separately defined in the legislation but should be interpreted consistently with case law and the EHRC Code of Practice. Dismissal, for example, can amount to unfavourable treatment but so can treatment which is much less disadvantageous to an employee than dismissal.[102]Pnaiser v NHS England [2015] UKEAT 0137/15 makes clear that, if there was unfavourable treatment, the Tribunal must decide by whom. The Tribunal must then decide what caused that person or persons to subject the Claimant to the treatment in question. That includes making decisions about the conscious and unconscious thought processes of the alleged discriminator. There may be more than one reason or cause for the treatment and the “something arising in consequence of disability“ need not be the main or sole reason for the unfavourable treatment but must have a significant (ie more than trivial) influence so as to amount to an effective reason for or cause of it. Having made decisions about what caused the alleged discriminator to act as they did, the tribunal will then have to determine whether the reason or cause is “something arising in consequence of” the Claimant’s disability.[103]In Risby v London Borough of Waltham Forest EAT 0318/15, the EAT made clear that an indirect connection between the Claimant’s unfavourable treatment and the “something” that arises in consequence of the disability can be sufficient. The EAT decided that the employment tribunal had been wrong to reject the section 15 claim on the basis that an incident in which the employee lost his temper was unrelated to his disability. On the facts, an effective cause of the loss of temper had been the employer’s decision to hold an event at a venue that was inaccessible to him because of his disability, that loss of temper led to his dismissal, and there was therefore a sufficient connection between the unfavourable treatment (his dismissal) and his disability for the purposes of section 15[104]When considering what the Respondent knew or could have reasonably been expected to know, the relevant time is the time at which the alleged unfavourable treatment occurred. Thus, where there are different allegations, then the Respondent’s knowledge has to be assessed at the time of each alleged act or omission. For that reason, for example, what the Respondent knew (or could have been expected to know) at the time of a dismissal might be different than what it knew (or could have been expected to know) at the time of an appeal hearing.[105]The complaint will not succeed if the Respondent is able to show that the unfavourable treatment was a proportionate means of achieving a legitimate aim. The aim relied upon should be legal, should not be discriminatory in itself, and must represent a real objective consideration. Business needs and economic 26 of 118 efficiency may be legitimate aims, but simply demonstrating that one course of action was less costly than another is not likely to be sufficient.[106]In relation to proportionality, the Respondent is not obliged to go as far as proving that the discriminatory course of action was the only possible way of achieving the legitimate aim. However, if there are less discriminatory measures which could have been taken to achieve the same objective then that might imply that the treatment was not proportionate.[107]It is necessary for there to be a balancing exercise which takes into account the importance of the Respondent achieving its legitimate aim in comparison weighed against to the discriminatory effect of the treatment. Regardless of whether the Respondent carried out that balancing exercise at the time (and it is not necessary for the Respondent to prove that it did), the tribunal carries out its own balancing exercise - based on the evidence presented at the hearing – in order to decide if the section 15(1)(b) defence succeeds.[108]If a Respondent has failed to make reasonable adjustments which could have prevented or minimised the unfavourable treatment, then it is going to be very difficult for the Respondent to show that the treatment was a proportionate means of achieving a legitimate aim.[109]The Tribunal must consider whether less severe measures might have been available and, if so, whether the Respondent has shown that the defence still succeeds despite the availability of such less severe measures.[110]Each case will turn on its own facts, and the Tribunal must take into account everything which is relevant, based on the evidence presented by the parties. The approach to the balancing exercise discussed by the Court of Appeal in Hardys & Hansons Plc v Lax [2005] EWCA Civ 84 (a case dealing with section 19 EQA) is appropriate when considering section 15 EQA as well.[111]Section 136 EQA applies to alleged contraventions of section 15 EQA. Definition of Direct Discrimination – section 13 EQA[112]Direct discrimination is defined in s.13 EQA. (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[113]There are two questions: whether the Respondent has treated the Claimant less favourably than it treated others (“the less favourable treatment question”) and whether the Respondent has done so because of the protected characteristic (“the reason why question”). 27 of 118[114]For the less favourable treatment question, the comparison between the treatment of the Claimant and the treatment of others can potentially require decisions to be made about whether another person is an actual comparator and/or the circumstances and attributes of a hypothetical comparator. Paragraphs 54 to 65 of Martin v The Board Of Governors Of St Francis Xavier 6th Form College [2024] EAT 22 provide a recent and clear summary of the types of arguments about comparators (and the proper role of section 23 EQA) that might be presented to us, and we have taken it into account.[115]The mere fact alone that a Respondent, or a particular individual, has behaved unreasonably and/or treated the Claimant badly or unfairly will not, in itself, be sufficient to cause the burden of proof to shift. For one thing, there may also need to be consideration of whether the “bad” treatment is comparable to the way in which others were treated. However:115.1 The greater the difference between the Claimant’s treatment and that of another employee in similar circumstances, the more likely it is that the Tribunal will decide that an inference of discrimination could be drawn. Likewise, the more closely the circumstances of the Claimant and the alleged comparator match, and/or the greater the number of comparators who have had “better” treatment, the more likely it is that the burden of proof will shift.115.2 The more unreasonable the treatment, the more likely it is that the Tribunal will decide that it calls for an explanation and the more likely that the Tribunal might decide that it is possible to infer that a hypothetical comparator would have been treated differently.115.3 Where the Respondent had offered an explanation to the Claimant for the treatment of the Claimant and/or of the alleged comparator, and the Tribunal finds that that explanation was dishonest or implausible, then the burden of proof might shift.[116]When considering the “reason why question” for the treatment found to have occurred, the Tribunal must analyse both the conscious and sub-conscious mental processes and motivations of the decision makers which led to the Respondent’s various acts, omissions and decisions. Indirect discrimination[117]Section 19 EQA states, in part: 19 Indirect discrimination(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— 28 of 118 (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.[118]Sex is one of the protected characteristics listed in section 19(3).[119]The phrase “provision, criterion or practice” is commonly abbreviated to “PCP”. It is not separately defined in the Equality Act 2010. Tribunals must interpret it in accordance with guidance in the EHRC Code and in appellate court decisions.[120]In Nottingham City Transport Ltd v Harvey UKEAT/0032/12, the EAT held that the word practice has something of the element of repetition about it, and if related to a procedure, should be applicable to others as well as the complainant.[121]The PCP does not have to be a complete barrier preventing the Claimant from performing her job for section 19 to be triggered. Furthermore, a PCP might be “applied” even if the employee is not necessarily disciplined or dismissed if they fail to meet the requirement. In Carreras v United First Partners Research, the EAT concluded that an expectation or assumption that an employee would work late into the evening could constitute a PCP, even if the employee was not “forced” to do so.[122]There are two aspects to the “particular disadvantage” limb of the test for indirect discrimination.122.1 that the PCP puts (or would put) persons who share the Claimant’s protected characteristic at a particular disadvantage when compared with persons who do not share it. So a female Claimant needs to show that the PCP puts women at a particular disadvantage when compared with men. This is sometimes referred to as “group disadvantage”.122.2 that the Claimant must personally be placed at that disadvantage.[123]The word “disadvantage” is not specifically defined in the Equality Act 2010. The Code of Practice suggests that disadvantage can include denial of an opportunity or choice, deterrence, rejection or exclusion. A person might be able to show a particular disadvantage even if they have reluctantly complied with the PCP in order, for example, to avoid losing their job. The EAT in XC Trains Ltd v D UKEAT/0331/15/LA held that it was sufficient that the PCP (the employer’s rostering arrangements, in that case) caused the Claimant “great difficulty” in meeting her obligations. 29 of 118[124]In Dobson v North Cumbria Integrated Care NHS Foundation, UKEAT/0220/19/LA the EAT held (in a case concerning lack of flexibility afforded to a female employee who had childcare responsibilities for a disabled child) that judicial notice may be taken of the gender disparities around childcare burdens when deciding on sex discrimination cases in respect of group disadvantage: 50. However, taking judicial notice of the childcare disparity does not necessarily mean that the group disadvantage is made out. Whether or not it is will depend on the interrelationship between the general position that is the result of the childcare disparity and the particular PCP in question. The childcare disparity means that women are more likely to find it difficult to work certain hours (e.g. nights) or changeable hours (where the changes are dictated by the employer) than men because of childcare responsibilities. If the PCP requires working to such arrangements, then the group disadvantage would be highly likely to follow from taking judicial notice of the childcare disparity. However, if the PCP as to flexible working requires working any period of 8 hours within a fixed window or involves some other arrangement that might not necessarily be more difficult for those with childcare responsibilities, then it would be open to the Tribunal to conclude that the group disadvantage is not made out. Judicial notice enables a fact to be established without specific evidence. However, that fact might not be sufficient on its own to establish the cause of action being relied upon. As is so often the case, the specific circumstances will have to be considered and one needs to guard against moving from an “indisputable fact” (of which judicial notice may be taken) to a “disputable gloss” (which may not be apt for judicial notice) … 51. We therefore reject Ms Darwin’s contention that taking judicial notice of the childcare disparity should invariably result in the group disadvantage being made out with the question for the Tribunal simply being one of justification. Such a blanket approach could give rise to unfairness and illogical outcomes. Where, for example, an arrangement is, on analysis, generally favourable to those with childcare responsibilities, it would be incongruous to treat that arrangement as nevertheless giving rise to group disadvantage falling to be justified. … 56. In summary, when considering whether there is group disadvantage in a claim of indirect discrimination, tribunals should bear in mind that particular disadvantage can be established in one of several ways, including the following:a. There may be statistical or other tangible evidence of disadvantage. However, the absence of such evidence should not usually result in the claim of indirect discrimination (and of group disadvantage in particular) being rejected in limine;b. Group disadvantage may be inferred from the fact that there is a particular disadvantage in the individual case. Whether or not that is so will depend on the facts, including the nature of the PCP and the disadvantage faced. Clearly, it may be more difficult to extrapolate from the particular to the general in this way when the disadvantage to the individual is because of a unique or highly unusual set of circumstances that may not be the same as those with whom the protected characteristic is shared;c. The disadvantage may be inherent in the PCP in question; and/ord. The disadvantage may be established having regard to matters, such as the childcare disparity, of which judicial notice should be taken. Once again, whether 30 of 118 or not that is so will depend on the nature of the PCP and how it relates to the matter in respect of which judicial notice is to be taken. 57. In the present case, the Tribunal did not consider any of (b), (c) or (d) and instead dismissed the claim of indirect discrimination because of the lack of direct evidence of group disadvantage. In doing so, it is our judgment that the Tribunal erred in law. …[125]In Marston (Holdings) Ltd V Mrs A Perkins [2025] EAT 20, the EAT reviewed the law in relation to establishing group disadvantage where the claim relies on what was referred to as “the childcare disparity” which the EAT defined in paragraph 58 as follows: 58. In Dobson, the claim of indirect sex discrimination related to a flexible work requirement, which was said to give rise to a particular disadvantage for women as they bore a greater burden of childcare responsibilities than men, which could limit their ability to work certain hours (“the childcare disparity”). The ET had rejected that claim as it considered no evidence had been adduced that demonstrated that “women as a group were (or would be) disadvantaged by the requirement to work flexibly”. Upholding Ms Dobson’s appeal, the EAT held that the ET had erred in failing to have regard to the matters it had recorded at paragraph 56 (b), (c) and (d) of its Judgment. 59. On the particular question whether judicial notice might be taken of the childcare disparity, the EAT noted (citing passages from Phipson on Evidence 19th Ed at paragraphs 3-01-3-03 and 3-17) that: “42. ...a. There are two broad categories of matters of which judicial notice may be taken:(i) facts that “are so notorious or so well established to the knowledge of the court that they may be accepted without further enquiry”; and(ii) other matters that “may be noticed after inquiry, such as after referring to works of reference or other reliable and acceptable sources”.b. The Court must take judicial notice of matters directed by statute and of matters that have been “so noticed by the well-established practice or precedents of the courts”:c. However, beyond that, the Court has a discretion and may or may not take judicial notice of a relevant matter and may require it to be proved in evidence;d. The party seeking judicial notice of a fact has the burden of convincing a judge that the matter is one capable of being accepted without further inquiry.” 60. In Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15, [2012] 3 All ER 1287, at paragraph 14, Lady Hale had noted that the statutory requirement under section 19 EqA: “was not intended to lead us to ignore the fact that certain protected characteristics are more likely to be associated with particular disadvantages.” 61. Having reviewed the case-law relevant to this question in relation to the childcare disparity, the EAT in Dobson was clear: “46. ... (b) Whilst the childcare disparity is not a matter directed by the statute to be taken into account, it is one that has been noticed by the courts at all levels for many years. As such, it falls into the category of matters that, according to Phipson, a tribunal must take into account if relevant.” 62. As for how this ought to be addressed by an ET, the EAT provided the following guidance: 31 of 118 “48. ... We are sympathetic to the notion that if a party seeks to rely upon a matter in respect of which judicial notice is to be taken, then it should identify that matter up front. There are several reasons for taking that approach: a. First, it seems to us to be consistent with the principle, which was not disputed, that the burden in terms of establishing that a matter is capable of being judicially noticed lies with the party seeking to rely upon it. b. Second, it is preferable that all parties and the Tribunal are aware of precisely what it is that should be judicially noticed. Whilst the childcare disparity is uncontroversial and accepted by the Respondent, other related matters are not. For example, it is not accepted that the childcare disparity necessarily means that any requirement to work flexibly will put women at a disadvantage compared to men. Flexible working can mean different things in different contexts. Some types of flexible working, e.g. the ability to work any seven-hour period between the hours of 8am and 6pm, might even be considered advantageous by some with childcare responsibilities. It seems to us that giving advance notice of the matters sought to be relied upon would reduce the scope for disagreement later. A matter in respect of which judicial notice may be taken, by its very nature, ought to be one that is uncontroversial. The fact that it is not might cast doubt on whether it really is so notorious and well-established that it can be accepted without further inquiry. c. It is in the interests of fairness that the other party be given an opportunity to respond and comment. The Tribunal would be entitled to take judicial notice of a matter, notwithstanding any objection by the opposing party, if it is satisfied that that is warranted. However, the Tribunal may well be better placed to make that assessment once it has heard any argument to the contrary. d. However, that does not mean that a party needs to plead the term “judicial notice” expressly in order for adequate notice to have been given. Depending on the context, the nature of the claim and, if relevant, the specialist nature of the tribunal, it might suffice if the allegation being made contains an assertion that could be established by evidence or by the taking of judicial notice. In a claim of indirect discrimination, an assertion that a particular PCP puts women at a disadvantage because of their childcare responsibilities as compared to men, would be sufficient, in our view, to identify a matter in respect of which judicial notice could be taken. The childcare disparity is very well-established. It is frequently referred to in the authorities (see above) and is also referred to in the EHRC Code of Practice, which the Tribunal is obliged to take into account. As such, there is little need for more to be said by way of pleading. Furthermore, as a specialist employment tribunal, the childcare disparity is a matter that falls within the scope of its specialist expert knowledge and can be taken into account without more. We consider that approach to be consistent with the general direction of travel of making it easier for litigants to establish claims of indirect discrimination, and the fact that claims are often brought by litigants in person, who may be aware of the childcare disparity, but who may have no knowledge of the principles relating to judicial notice.e. The Claimant and the Intervenor appeared to go further in suggesting that the Tribunal was bound to take judicial notice of the childcare disparity even where there is no notice of the issue ... [but] the Tribunal cannot be treated as a “repository of knowledge” that will rush to the aid of a party whose case lacks clarity or would otherwise flounder for want of evidence. In that case, the EAT found that Ms Dobson had given sufficient notice in her pleaded case, whereby she stated that the requirement to work flexibly: “49. ... put her, “as a woman, at a particular disadvantage when compared to men on the basis that women are more likely to be child carers than men”. ... In our 32 of 118 judgment, that pleaded case provides sufficient notice of the issue in respect of which judicial notice is invited: the Tribunal was expressly being asked to find that women are more likely to be child carers than men and that this put women in general, and the Claimant specifically, at a disadvantage in the context of being required to work flexibly.”[126]I take account of everything the EAT mentioned in that case, including in its analysis of the case in front of it, and of the application of the law to that case. However, it is sufficient to cite:85. As for the position of women within the relevant pool, while the ET did not explicitly state that it was, at least in part, extrapolating group disadvantage from the particular difficulties suffered by the Claimant, I can accept that this might be implied from its reasoning. It is, however, not necessarily an error of law for an ET to infer group disadvantage from the fact that there is a particular disadvantage in the individual case (per Dobson, paragraph 56). Moreover, even if the Claimant’s particular circumstances … might not be representative of the position of many other women, “disadvantage” does not require that it is impossible to comply with the relevant PCP, it can be sufficient that there is a “real difficulty” (Dobson, paragraph 53). Thus, to the extent that the ET drew an inference from the Claimant’s circumstances, it would have been entitled to see that as providing an example of the kind of disadvantage that other women might face arising from the childcare disparity. … I am not persuaded that the ET’s reasoning reveals any error of law.86. The real focus of the Respondent’s challenge to the ET’s finding on disadvantage relates, however, to its approach to the taking of judicial notice of the childcare disparity (grounds 1-3 … the language used by the ET went further than Dobson in identifying what is to be understood by that term: rather than simply taking judicial notice of the fact that women are more likely to take on the greater burden of childcare responsibilities, the ET approached its task on the basis that “women are the primary carers of small children” (paragraph 74) and, as such, “would not be able to perform all elements of the Grade 3 management role with a requirement to travel significant distances” (paragraph 76), in particular given that “unless a woman can employ a live in childcare provider, it is only possible to secure childcare between the hours of 7am and 6pm” (paragraph 77). It is the Respondent’s case that these characterisations of what the childcare disparity means demonstrate that the ET had gone further than simply taking judicial notice of that which had been “so noticed by the well-established practice or precedents of the courts” (Dobson, paragraph 42, approving the observations made in Phipson). …87. … I am bound to accept there is some force in the Respondent’s criticisms. The ET’s judgment suggests that it was proceeding on the basis that the PCP in this case was (adopting the language at paragraph 4.10 of the EHRC Code) “intrinsically liable to disadvantage” women, but “there is nothing peculiar to womanhood in taking the larger share of caring responsibilities in a family” (per Lady Hale, paragraph 39 Essop). While the need to take judicial notice of the childcare disparity arises because, in some situations, the link between the protected characteristic (being a woman) and the particular disadvantage might be “obvious” (EHRC Code, paragraph 4.11), as the EAT explained in Dobson, the ET’s task is to consider the particular nature of the PCP in issue to determine whether that clearly would give rise to difficulties for women, such as would amount to a group disadvantage (Dobson, paragraph 50). … a more substantive error of approach can (as the Respondent urges) be implied from the fact that the ET’s reasoning then appears to suggest that there is an intrinsic link between childcare responsibilities and being a woman, apparently losing sight of the rather 33 of 118 more nuanced characterisation of the childcare disparity provided by the EAT in Dobson[127]If the PCP is shown to exist and to place persons with the relevant protected characteristic, and the Claimant herself, at a particular disadvantage, the burden of proof switches to the Respondent to show that the PCP is nevertheless a proportionate means of achieving a legitimate aim.[128]The “legitimate aim” of the PCP should not be discriminatory in itself, and must represent a real, objective consideration. The health, welfare and safety of individuals may qualify as legitimate aims provided that risks are clearly specified and supported by evidence.[129]Reasonable business needs and economic efficiency may be legitimate aims. However, a discriminatory rule or practice will not necessarily be justified simply by showing that the less discriminatory alternatives cost more.[130]Once a legitimate aim has been established, the tribunal must consider whether the discriminatory PCP is a proportionate means of achieving that aim.[131]In Homer v Chief Constable of West Yorkshire [2012] UKSC 15; at paras 22 - 23 of Baroness Hale’s judgment: Although the regulation refers only to a “proportionate means of achieving a legitimate aim”, this has to be read in the light of the Directive which it implements. To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so. Some measures may simply be inappropriate to the aim in question: thus, for example, the aim of rewarding experience is not achieved by age related pay scales which apply irrespective of experience (Hennigs v Eisenbahn-Bundesamt (Joined Cases C297/10 and C-298/10) [2012] 1 CMLR 484); the aim of making it easier to recruit young people is not achieved by a measure which applies long after the employees have ceased to be young (Kücükdeveci v Swedex GmbH & Co KG (Case C-555/07) [2011] 2 CMLR 703).... 23 A measure may be appropriate to achieving the aim but go further than is (reasonably) necessary in order to do so and thus be disproportionate.[132]Tribunals considering whether a PCP is a proportionate means of achieving a legitimate aim must undertake a comparison of the impact of the PCP on the affected group as against the importance of the aim to the employer.[133]The tribunal must consider whether there are less discriminatory alternative means of achieving the aim relied upon. However, the existence of a possible alternative non-discriminatory means of achieving the aim of a measure or policy does not, in itself, make it impossible for the Respondent to succeed in justifying a discriminatory PCP. The existence of an alternative is only one factor to be taken into account when assessing proportionality. 34 of 118[134]The tribunal must make an objective determination and not (for example) apply a range of reasonable employers test.[135]For the avoidance of doubt, the analysis which the tribunal must undertake when considering a claim of indirect discrimination (section 19 of the Equality Act 2010) is completely different to the analysis which the tribunal must undertake when considering a claim that the Respondent has breached its obligations under Part VIIIA of the Employment Rights Act 1996.[136]For the indirect discrimination analysis - in contrast to claims under the flexible working provisions - tribunals must actively assess the legitimacy of the employer’s reasons for the refusal to see if the reasons can be objectively justified. Having an apparently sound business reason for denying an employee’s application to work reduced hours is not sufficient in itself. The issue whether the reasons for insisting on the existing contractual hours are strong enough to overcome any indirectly discriminatory impact. In particular, are there are any alternatives that would achieve the same aim without being as disadvantageous to an individual.[137]In Hardy & Hansons plc v Lax [2005] EWCA Civ 846, the Court of Appeal discussed a case which they introduced as follows: “The scenario is a familiar one. A full-time female employee acquires child rearing responsibilities and applies for a job sharing arrangement in the same employment.” In discussing what is now section 19(2)(d), the court said:32. [it] requires the employer to show that the proposal is justifiable irrespective of the sex of the person to whom it is applied. It must be objectively justifiable (Berry) and I accept that the word "necessary" used in Bilka is to be qualified by the word "reasonably". That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word 'reasonably' reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the appellants' submission (apparently accepted by the EAT) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances.33. The statute requires the employment tribunal to make judgments upon systems of work, their feasibility or otherwise, the practical problems which may or may not arise from job sharing in a particular business, and the economic impact, in a competitive world, which the restrictions impose upon the employer's freedom of action. The effect of the judgment of the employment tribunal may be profound both for the business and for the employees involved. This is an appraisal requiring considerable skill and insight. As this court has recognised in Allonby and in Cadman, a critical evaluation is required and is required to be demonstrated in the reasoning of the tribunal. In considering whether the employment tribunal has adequately 35 of 118 performed its duty, appellate courts must keep in mind, as did this court in Allonby and in Cadman, the respect due to the conclusions of the fact finding tribunal and the importance of not overturning a sound decision because there are imperfections in presentation. Equally, the statutory task is such that, just as the employment tribunal must conduct a critical evaluation of the scheme in question, so must the appellate court consider critically whether the employment tribunal has understood and applied the evidence and has assessed fairly the employer's attempts at justification.[138]The defence to a section 19 claim can, in principle, rely on a legitimate aim which was not in fact the reason for imposing the PCP at the relevant time. Constructive Dismissal and Unfair Dismissal[139]For the unfair dismissal claim, the Claimant relies on section 95(1)(c) of the Employment Rights Act 1996 (“ERA”) to establish that she was dismissed. It reads: (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) only if)— (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.[140]Section 95(1)(c) is colloquially referred to as constructive dismissal. In order to prove constructive dismissal, the employee must prove140.1 that the employer has committed a serious breach of contract and140.2 that the employee resigned because of that breach (or at least partly because of that breach; it does not necessarily have to be the only reason) and140.3 the employee must also prove they have not waived the breach by affirming the contract.[141]In London Borough of Waltham Forest v Folu Omilaju [2004] EWCA Civ 1493, the court, at paragraph 14, stated that: The following basic propositions of law can be derived from the authorities: 1. The test for constructive dismissal is whether the employer's actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1978] 1 QB 761 2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA [1998] AC 20 , 34H–35D (Lord Nicholls) and 45C–46E (Lord Steyn). I shall refer to this as “the implied term of trust and confidence”. 3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666, 672A. The very essence of the 36 of 118 breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship ... 4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at page 35C, the conduct relied on as constituting the breach must “impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer”... 5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at paragraph [480] of Harvey on Industrial Relations and Employment Law: “[480] Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the ‘last straw’ which causes the employee to terminate a deteriorating relationship.”[142]The last straw might be relatively insignificant, but it must not be utterly trivial. An entirely innocuous act on the part of the employer cannot be a final straw even if the employee genuinely but mistakenly interprets the act as hurtful.[143]In Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978, the Court of Appeal clarified the analysis in Omilaju and added to it. It reiterated that the last straw doctrine is only relevant to cases where the repudiation relied on by the employee takes the form of a cumulative breach; the last straw doctrine does not have any application to a case where the alleged repudiation consists of a one-off serious breach of contract.[144]In Kaur, the Court of Appeal made clear that in a last straw case the fact that the employee might have affirmed a contract after some of the earlier conduct does not mean that it is not possible for the Claimant to rely on that earlier conduct as part of a cumulative breach argument and in paragraph 55 of its decision it summarised the correct approach.(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?(2) Has he or she affirmed the contract since that act?(3) If not, was that act (or omission) by itself a repudiatory breach of contract?(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation ...)(5) Did the employee resign in response (or partly in response) to that breach? 37 of 118[145]Where the answer at point (4) is “no” (for example the act that triggered the resignation was entirely innocuous), it is necessary to go back and see whether there was any earlier breach of contract that has not been affirmed, and which was a cause of the resignation. See Williams v Governing Body of Alderman Davies Church in Wales Primary School EAT 0108/19.[146]In considering whether a contract has been affirmed after a breach, it is necessary to have regard to the entirety of the circumstances. A gap in time between the act relied on and the resignation is a significant factor but it is by no means the only factor; in other words, a delay is not necessarily fatal to the employee’s argument for constructive dismissal. The reasons for the delay would be relevant as would consideration of what had happened in the intervening period, such as was the employee working and receiving pay amongst other things.[147]Where an employee alleges constructive dismissal and succeeds in the argument then the dismissal reason for the purposes of the Employment Rights Act is the employer’s reason for the conduct which caused the employee to treat themselves as dismissed. Actual Dismissal[148]In Omar v Epping Forest [2023] EAT 132, the Employment Appeal Tribunal:148.1 Noted that a decision about whether a notice of termination (whether of resignation or dismissal) has been effectively communicated to the other party is to be determined objectively, by reference to the language used and the circumstances in which it is used, including the matters within the knowledge of the parties at the time148.2 Carried out a very thorough review of earlier cases (paragraphs 54 to 96), dealing “with less conventional termination situations, i.e. the ‘special circumstances exception’ cases as they are often referred to”148.3 Set out, at paragraph 97, within 14 numbered sub-paragraphs, the principles that are to be applied if (for example) an issue is raised by the parties that(i) words which arguably amount to a resignation should not be treated as such and(ii) therefore, the employer’s decision to treat it as a resignation amounts to a dismissal. At paragraph 97.11, the comments included (my emphasis): The sorts of circumstances that might lead to a conclusion that, objectively, the sayer or writer of the words did not have the necessary ‘real’ intention at the time, as drawn from both the obiter and actual examples in the case law, include where the speaker: is angry and behaves out of character …; is angry and overhasty …; is just plain angry … ; has a relevant mental impairment or is immature … ; or is under extreme pressure/’jostling’ from 38 of 118 another party …. However, none of those circumstances necessarily mean that the words of termination were not ‘really intended Protected Disclosures[149]As per section 43A ERA “protected disclosure” means a “qualifying disclosure” which is made by a worker in accordance with any of sections 43C to 43H[150]Section 43B defines “qualifying disclosure”: (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.[151]In order for a communication to be a qualifying disclosure151.1 Firstly, there must be a disclosure of information.151.2 Secondly, the worker must believe that the disclosure is made in the public interest.151.3 Thirdly, if the worker does hold such a belief, it must be reasonably held.151.4 Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f) of section 43B(1).151.5 Fifthly, if the worker does hold such a belief, it must be reasonably held. Unless all five of these conditions are satisfied there will be not be a qualifying disclosure. See Williams v Michelle Brown AM UKEAT/0044/19/OO.[152]There must be a disclosure of information. A disclosure of information can be made as part of making an allegation, see for example Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436.152.1 The information disclosed has to have sufficient factual content and specificity such as to be capable of satisfying all of the requirements mentioned in the previous paragraph. 39 of 118152.2 However, the worker does not need to specifically use the words from the section in order for the disclosure to qualify.[153]The public interest parts of the requirement were considered in Chesterton Global Ltd v Nurmohamed. Neutral Citation Number: [2017] EWCA Civ 979. Some of the relevant points that were highlighted are:153.1 The Tribunal has to ask whether the worker believed at the time that they were making it that the disclosure was in the public interest and whether, if so, that belief was reasonable.153.2 The Tribunal must not substitute its own view of whether the disclosure was in the public interest for that of the worker. The Tribunal might need to form its own view on that question as part of its analysis of what (on the balance of probabilities) the employee, in fact, did believe at the time. However, it is not the Tribunal’s view of the public interest that is determinative of this point.153.3 The necessary belief is simply that the disclosure is in the public interest. The particular reason(s) that the worker believes that it is in the public interest are not of the essence. What matters is that the Claimant’s subjective belief was objectively reasonable.153.4 While the worker must have a genuine and reasonable belief that the disclosure is in the public interest, that does not have to be the predominant motive for making the disclosure.153.5 Parliament has deliberately chosen to not define the phrase “in the public interest” and the reason for that is that it is Parliament’s intention to leave it to Employment Tribunals to apply that phrase as a matter of educated impression. There is, therefore, no “checklist” of factors that will determine whether it was reasonable for the worker to believe that the disclosure was in the public interest. However, the type of things that might often be relevant include:153.5.1 the number in the group affected by the wrongdoing;153.5.2 how the wrongdoing affected people and the extent to which they are affected;153.5.3 the nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people;153.5.4 the identity of the alleged wrongdoer.[154]Where a qualifying disclosure is made to an employer, it is a protected disclosure. (Section 43C). 40 of 118[155]Where the disclosure is not in the circumstances, set out in any of Sections 43C to 43F, the Tribunal has to either be satisfied that sections 43G or 43H applied or else the disclosure (even if it is qualifying) is not a protected disclosure. Unfair Dismissal: dismissal because of protected disclosure[156]Within Part X of the Employment Rights Act, s.103A specifically deals with dismissal where the principal reason is that the employee has made a protected disclosure. An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.[157]When an employee has less than two years’ service, and presents a claim of unfair dismissal, the onus is on them to persuade the tribunal that the dismissal reason was one of the reasons for which two year’s continuous employment is not required. That is the general rule, and, in Ross v Eddie Stobart Ltd UKEAT/0068/13/RN, the EAT specifically confirmed that it applied when the reason relied upon is that described in section 103A of the Employment Rights Act 1996. Decisions about Effect of early conciliation on time limit[158]For any complaints presented within claim 1, they are in time where the act or omission was on 2 October 2023 or later. Where the act or omission was 1 October 2023 or earlier, the complaint about it will only be in time if there is a continuing act or if I extend time.[159]For any complaints not presented within claim 1, and presented within claim 2, my decision is that the second the early conciliation certificate has no effect on time limits.[160]I have reached this decision by applying the principles in HMRC v Serra Garau UKEAT/0348/16. The early conciliation certificate provisions do not allow for more than one certificate of early conciliation per “matter” to be issued by ACAS. If more than one such certificate is issued, a second or subsequent certificate is outside the statutory scheme and has no impact on the limitation period. Thus it is necessary to decide whether the second certificate related to the same “matter” or not.[161]The EAT considered Science Warehouse Ltd v Mills [2016] ICR 252 and Tanveer v East London Bus and Coach Co Ltd, and noted that the word “matter” in section 18A(1) of the Employment Tribunals Act can embrace a range of events, including events that had not yet happened when the early conciliation process was completed. It is effectively a question of fact for the Tribunal. 41 of 118[162]In this case, the Claimant submitted Claim 1 after the end of employment and Claim 2 only referred to things that happened during employment. Indeed she had been on garden leave for the last few weeks of employment.[163]The “matter” to which the second early conciliation certificate relates is the same as the “matter” to which the first relates. Thus there is no early conciliation extension of the time limit based on the second early conciliation certificate. She can still rely on the first certificate. For that, Day A was 1 January 2024 and Day B was 2 January 2024.[164]It follows that, for Claim 2, one day only, namely 2 January 2024 is ignored for time limit purposes. However, the Claim form was not presented until 18 April.[165]Thus, for Claim 2, the complaints are in time where the act or omission was on 19 January 2024 or later. That being said, when I decide whether to exercise a discretion to extend time, I will take account of the point quoted above from EJ Moore’s summary regarding the period between 10 March and 18 April. Decisions about disability[166]I had the Claimant’s impact statement and medical evidence.
The law
[167]Section 6 of the Equality Act 2010 (“EQA”) defines disability. 6 Disability(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.(2) A reference to a disabled person is a reference to a person who has a disability.(3) In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability. ... (6) Schedule 1 (disability: supplementary provision) has effect. 42 of 118[168]The section refers to the need to take into account Schedule 1. The paragraphs in that schedule include the following extracts in Part 1. 2 Long-term effects(1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.(2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. 5 Effect of medical treatment (1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect. (2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.(3) Sub-paragraph (1) does not apply— (a) in relation to the impairment of a person's sight, to the extent that the impairment is, in the person's case, correctable by spectacles or contact lenses or in such other ways as may be prescribed; (b) in relation to such other impairments as may be prescribed, in such circumstances as are prescribed.[169]The “Guidance on matters to be taken into account in determining questions relating to the definition of disability” is issued by the Secretary of State under section 6(5) of the Equality Act 2010. The guidance does not impose any legal obligations and is not an authoritative statement of the law. In other words, where appellate court decisions differ from the guidance, then it is the court decision which takes precedence in the interpretation of the legislation. The guidance must be taken into account (Part 2 of Schedule 1, paragraph 12), but, ultimately, it is the legislation itself which must be interpreted and applied by the Tribunal.[170]The Guidance includes the following extracts. Meaning of ‘impairment’ A3. The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects. A6. It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment. The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and 43 of 118 mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa. Section C: Long-term Recurring or fluctuating effects C5. The Act states that, if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur. (In deciding whether a person has had a disability in the past, the question is whether a substantial adverse effect has in fact recurred.) Conditions with effects which recur only sporadically or for short periods can still qualify as impairments for the purposes of the Act, in respect of the meaning of ‘long-term’ (Sch1, Para 2(2), see also paragraphs C3 to C4 (meaning of likely).) C6. …. If the substantial adverse effects are likely to recur, they are to be treated as if they were continuing. If the effects are likely to recur beyond 12 months after the first occurrence, they are to be treated as long-term. Other impairments with effects which can recur beyond 12 months, or where effects can be sporadic, include … mental health conditions such as … certain types of depression, though this is not an exhaustive list. Some impairments with recurring or fluctuating effects may be less obvious in their impact on the individual concerned than is the case with other impairments where the effects are more constant. C7. It is not necessary for the effect to be the same throughout the period which is being considered in relation to determining whether the ‘long-term’ element of the definition is met. A person may still satisfy the long-term element of the definition even if the effect is not the same throughout the period. It may change: for example activities which are initially very difficult may become possible to a much greater extent. The effect might even disappear temporarily. Or other effects on the ability to carry out normal day-to-day activities may develop and the initial effect may disappear altogether. Section D: Normal day-to-day activities Meaning of ‘normal day-to-day activities’ D3. In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education- related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern. Indirect effects D22. An impairment may not directly prevent someone from carrying out one or more normal day-to-day activities, but it may still have a substantial adverse effect on how the person carries out those activities. For example:• pain or fatigue: where an impairment causes pain or fatigue, the person may have the ability to carry out a normal day-to-day activity, but may be restricted in the way 44 of 118 that it is carried out because of experiencing pain in doing so. Or the impairment might make the activity more than usually fatiguing so that the person might not be able to repeat the task over a sustained period of time. (See also paragraphs B7 to B10 (effects of behaviour));[171]Furthermore, by virtue of section 15 of the Equality Act 2006, the Tribunal should take the Equality and Human Rights Commission’s Equality Act 2010 Code of Practice into account. The EHRC has published both an Employment Statutory Code of Practice and a supplement to it. The questions to be answered[172]In Goodwin v Patent Office [1999] I.C.R. 302, the EAT provided guidance on the for the Tribunal to adopt when making a decision about “disability” in accordance with the definition in the Disability Discrimination Act 1995. The following four questions should be answered, and treated as separate questions, albeit some of the evidence and analysis will overlap between the questions and albeit answering these questions separately must not get in the way of examining the evidence as a whole and adopting a purposive approach to interpreting and applying the actual statutory wording.172.1 Did the Claimant have a mental or physical impairment? (the ‘impairment condition’);172.2 Did the impairment affect the Claimant’s ability to carry out normal day-today activities? (the ‘adverse effect condition’);172.3 Was the adverse condition substantial? (the ‘substantial condition’);172.4 Was the adverse condition long term? (the ‘long-term condition’).[173]In Sullivan v Bury Street Capital Limited Neutral Citation Number: [2021] EWCA Civ 1694, the Court of Appeal approved the following list as setting out the questions that a tribunal is required to address when determining whether or not a Claimant is disabled for the purposes of the Equality Act 2010.173.1 Was there an impairment?173.2 What were its adverse effects?173.3 Were they more than minor or trivial?173.4 Was there a real possibility that they would continue for more than 12 months or that they would recur?[174]Effectively this is the same as the list produced in Goodwin (and the fourth question is to be re-worded when the Claimant is seeking to argue that the effects had already lasted 12 months by the relevant date). 45 of 118[175]The Respondent’s knowledge is not directly relevant to any of these questions or the issue of whether a person meets the definition in section 6 EQA. However, evidence from the Respondent (whether witnesses or documents) can be taken into account whether there is any corroboration for (or undermining of) the Claimant’s account to have been suffering from particular adverse effects at particular times.[176]The point in time for which the question of disability is to be determined is the date of the alleged discriminatory act or omission. That therefore is the date to be used when deciding all of the four questions, including, importantly, the fourth (the long term condition).[177]If the definition is satisfied as of the date of the earliest alleged act, then it may not be necessary to separately consider later dates as well. However, where necessary that can be done. In any event, if the definition is not satisfied as of the earliest alleged discriminatory act or omission, then the four questions have to be answered as of the dates of each later complaint. Impairment Condition[178]For the first of the four Goodwin questions, there is no further statutory definition of either “physical impairment” or “mental impairment”. The expressions should be given their ordinary and natural meaning. If there is found to be no impairment, then the definition in section 6 EQA is not met. An adverse effect on day to day activities is not sufficient, if not caused by an impairment. However, the existence of an impairment can, in an appropriate case, be inferred from the evidence. As noted in paragraph 40 of in J v DLA Piper UK LLP [2010] UKEAT 0263/09/1506 (in a passage which is reflected in the Guidance): In many or most cases it will be easier (and is entirely legitimate) for the tribunal to ask first whether the Claimant's ability to carry out normal day-to-day activities has been adversely affected on a long-term basis. If it finds that it has been, it will in many or most cases follow as a matter of common-sense inference that the Claimant is suffering from an impairment which has produced that adverse effect. If that inference can be drawn, it will be unnecessary for the tribunal to try to resolve the difficult medical issues.[179]In Walker v Sita Information Networking Computing Ltd [2013] UKEAT 0097/12/0802, the EAT said: That is not to say that the absence of an apparent cause for an impairment is without significance. The significance is, however, not legal but evidential.” In other words, where there is no recognised cause of the alleged effects/symptoms, it is open to a Tribunal to conclude that the Claimant does not genuinely suffer from them. The EAT pointed out that “that is a judgment made on the whole of the evidence. 46 of 118 Adverse Effect Condition[180]For the second of the four Goodwin questions, the focus is on what the Claimant cannot do, or can only do with difficulty, rather than on the things that they can do. The fact that a Claimant can carry out a particular normal day-to-day activity does not mean that their ability to carry it out has not been impaired. When deciding the legal question, it is wrong to conduct an exercise balancing what the Claimant cannot do against the things that they can do (because the focus must only be on what they cannot do, or can only do with difficulty).[181]As per Paterson v Commissioner of Police of the Metropolis [2007] ICR 1522, the requirement is to examine the effect on the individual, and this involves considering how the Claimant in fact carries out the activity compared with how they would do if not suffering the impairment.[182]The expression “day to day activities” encompasses activities which are relevant to participation in professional life as well as participation in personal life. It is not further defined in the legislation, and should be given its ordinary meaning, taking into account the Guidance and the Code. D3 of the Guidance give some examples, but, of course, it would be impossible to create a complete list of an expression which is capable of covering such a large range of the things that humans do.[183]As per D5 of the Guidance, the fact that only a minority of people perform a particular activity does not necessarily mean that it is not within the definition “normal day-to-day activities” and nor does the fact that people do not perform the activity on more days than they do not perform it. However, there are some things that are so specialised, or so rarely done by any human, that they would not be considered “normal day-to-day activities”. Substantial Condition[184]For the third of the four questions identified in Goodwin, section 212(1) EQA defines “substantial” as meaning “more than minor or trivial.”[185]It was pointed out in Aderemi v London South East Railway Limited [2013] ICR 591 that the analysis must not proceed on the basis that there is “a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial” but rather on the basis that “unless a matter can be classified as within the heading ‘trivial’ or ‘insubstantial’, it must be treated as substantial”.[186]In Rayner v Turning Point UKEAT/0397/10, it was held that (although the question of whether there is a substantial adverse effect is a matter of fact for the tribunal to determine), in circumstances where a Claimant is diagnosed with a condition by their GP (in Rayner, the condition was anxiety) and the GP advises then to refrain 47 of 118 from work then that is in itself evidence of a substantial effect on day-to-day activities because were it not for the condition (anxiety in that case) the Claimant would have been at work. Day-to-day activities can include going to work.[187]When deciding which (if any) day-to-day activities are affected and whether the effect was substantial, then various matters might need to be taken into account, depending on the particular circumstances of the case. These include:187.1 Does the impairment cause the Claimant to avoid doing a particular thing because (for example), it causes pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation.187.2 The time taken to carry out an activity.187.3 The way in which the Claimant carries out the activity;187.4 The cumulative effects of the impairment;187.5 the cumulative effects of more than one of impairment;187.6 the effect of behaviour;187.7 the effect of environment187.8 the effect of treatment (which is any treatment, not just medication). Long term condition[188]The fourth Goodwin question is the long term condition. As mentioned above, the question is to be answered as of the date of the alleged contravention of EQA.[189]There are three different routes by which a Claimant can satisfy the long term condition (paragraph 2 of schedule 1 EQA). Where the Claimant cannot demonstrate that the substantial adverse effects of the impairment had already lasted 12 months (by the relevant date), then they must demonstrate that the substantial adverse effects of the impairment were (as of that date) “likely” to last either long enough to reach the 12 month mark, or else for the rest of the Claimant’s life.[190]The question of whether the effects are likely to last for more than 12 months is an objective test based on all the evidence, and it is not relevant whether the employer or employee knew (or could have known) that the effects were likely to last long enough.[191]In this context, the word “likely” means "it could well happen" and does not impose a requirement that it was more probable than to occur than not occur: SCA Packaging Limited v Boyle [2009] UKHL 37; [2009] ICR 1056. 48 of 118[192]Conditions with effects which recur only sporadically or for short periods can still qualify as long term impairments if the effects on normal day to day activities are substantial and are likely to recur beyond 12 months after the first occurrence, they are to be treated as long-term. It is for the Claimant to establish this, but it is sufficient that they show that "it could well happen" that the substantial adverse effects recur (beyond 12 months).[193]The likelihood of recurrence is to be assessed as at the time of the alleged contravention. It does not follow from the fact that there was actually a subsequent recurrence of an impairment that, as of the date of the alleged discrimination, it must have been “likely” that there would be a recurrence. The issue of whether a recurrence was “likely” cannot be judged retrospectively, based on what actually did happen after the relevant date; however, evidence created later (especially medical reports) can still be taken into account to help answer the question about whether, as of the relevant date, recurrence was likely.[194]As noted in Sullivan, the fact that the substantial adverse effect has recurred episodically might strongly suggest that a further episode was something that (as of the relevant date) “could well happen” again in the future. However, that is not an inevitable finding. Each case must be decided on its own facts and evidence. Treatment[195]When considering each of the four Goodwin questions, as per paragraph 5 of schedule 1, it is important to effectively ignore any beneficial effects of treatment and to ascertain the effects on day-to-day activities as it would otherwise be but for that medical treatment.[196]This provision applies even if the ongoing treatment results in the effects being completely under control or not at all apparent. However, if the treatment results in a permanent improvement or “cure” it will be necessary to consider whether the effects of the impairment, prior to the treatment, were sufficiently “long term”. Evidence Issues[197]Medical evidence is likely to assist the Tribunal but, ultimately, it is the Tribunal’s legal determination, based on the totality of the evidence, which counts. A claimant who fails to produce medical evidence to support their case runs the risk that the Tribunal will decide that they have failed to meet their burden of showing that the Section 6 definition is met. However, there is no rule of law that medical evidence is essential in order for the Tribunal to be satisfied that the definition is met.[198]In accordance with normal principles, if the Tribunal decides that either party (the Claimant or the Respondent) had documents in their possession that they have failed to disclose, then they run the risk of the Tribunal deciding that they did so deliberately, and that they did so because the documents undermined their case. 49 of 118 However, in accordance with normal principles, not every failure to disclose will lead to that result, and the Tribunal might decide to accept the party’s explanation for the failure, and/or accept that the missing documents did not assist the opposing party. Was an effect a reaction to a life event[199]When a Claimant alleges that they have a mental impairment which satisfies all elements of the definition, the Tribunal might have to take into account the guidance issued in J v DLA Piper UK LLP [2010] IRLR 936. Although decided on pre–Equality Act 2010 legislation, it gives guidance that is still relevant about the need to precisely analyse the effects of any alleged mental impairment and to distinguish between, on the one hand, that people’s moods can change and people can have a low mood and can feel anxious about things because of life events (the type of thing that might affect almost everybody from time to time) and, on the other hand, the effects of an impairment. There are many life events that can upset people and cause a great deal of distress (and some people will have more severe reactions than others). The court made it clear that it is important to note that even if somebody has exhibited significant symptoms of distress on several different occasions, if each occasion was reacting to particular life events, then that might not demonstrate they had a “physical or mental impairment” or that they necessarily meet all parts of the definition in s.6 of the EQA.[200]As discussed in Sullivan (paragraph 92), the point being made in DLA Piper is that where there are examples of symptoms at different periods, then one possible inference from the facts, if the evidence supports it, is that those separate examples were all due to a continuing impairment, and are examples of the underlying condition being severe (or worse than typical) at those times. However, that is not the only possible conclusion from the facts. Another possibility is that they were separate reactions to separate life events.[201]Where there is an underlying condition, then it might well be possible to associate particular severe bouts with particular life events that acted as a trigger. Thus great care must be taken when analysing the evidence. A finding that a particular period in which there was a substantial adverse effect followed on from a particular life event which contributed to the onset of particular effects does not disprove the existence of a continuing impairment or disprove that it was that impairment which affected the Claimant’s normal day to day activities.[202]In Herry v Dudley MBC UKEAT/0100/16, the EAT discussed the guidance in DLA Piper (saying it had “stood the test of time and proved of great assistance to Employment Tribunals”) and how it might be relevant in circumstances where medical evidence has used phrases such as “stress” or “work-related stress” or similar in reference to the Claimant. The EAT noted that it was important for tribunals to be aware that “work related issues can result in real mental impairment 50 of 118 for many individuals, especially those who are susceptible to anxiety and depression.” That being said, even in cases where the substantial adverse effect is long term: Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by an Employment Tribunal) are not of themselves mental impairments: they may simply reflect a person’s character or personality. Any medical evidence in support of a diagnosis of mental impairment must of course be considered by an Employment Tribunal with great care; so must any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee’s satisfaction; but in the end the question whether there is a mental impairment is one for the Employment Tribunal to assess. Ms Mirza’s Evidence and Medical Evidence[203]Within the particulars of claim, the earliest allegations of wrongdoing (where the protected characteristic is disability) date from March 2023.[204]As per list of issues, the Claimant relies on(i) menopause symptoms,(ii) work related stress and anxiety and(iii) Post Traumatic Stress Disorder. I will comment on each of those one at a time, and then comment on them cumulatively. Menopause[205]The Claimant’s impact statement includes: Menopause Symptoms• Ongoing menopausal symptoms, causing me to suffer with hot flushes, poor memory recall, stress, anxiety, sleepless nights, irritability, and periods of depression and sadness.• At one point, I was made to meet with my manager every morning, I would not be able to sleep the night before and could not tell if it was my menopause symptoms or the bullying harassment and discrimination at work, or both that was making me physically and mentally ill. However, when I was signed off work by my GP my menopause symptoms would become more manageable, I would have less sleepless nights. My GP felt that it was the work-related stress, bullying and harassment that were making my menopause symptoms worse.• On multiple calls with my manager and then his manager, I would feel my heart racing so much that I thought I was going to have a heart attack. I spoke to my GP about this, and she felt that this was stress related due to the ill treatment I was suffering with at work.[206]Although the Claimant was ordered, by EJ Moore, to disclose “a copy of all medical evidence and documents relevant to the question of whether she is a disabled person” by 28 October 2024, in relation to GP notes, the Claimant’s purported compliance with that order was to supply some extracts from a print out created on 17 June 2025. She supplied photographs of parts of some pages from the printout. Although cut off on many of the photos, the bottom right hand corner of 51 of 118 the print out shows it was 31 pages. At most, the Claimant has supplied photographs of 11 pages (or part page).206.1 A very selective photograph of the bottom of page 18 [Bundle 604] shows that on 6 June 2022, “advised HRT script sent to pharmacy”. The other entries on that page are not shown. That is, the next set of entries immediately after 6 June 2022 are not shown.206.2 It is not possible to see the page number of the printout page that is remainder of [Bundle 604]. It seems unlikely that it was also part of page 18. The dates covered are 7 June 2023 (the lowest visible entry) to 4 October 2023 (the highest entry for which there is a date). The top of the pages is probably from 4 or 5 October 2023 as it refers to a Fit Note commencing 5 October 2023. In other words, the earliest entry in the lower image on [Bundle 604] is a year later than the entry in the image at the top of the page.206.3 The bottom of [Bundle 605] has an entry from 12 January 2024. That is the only other entry in the notes from within the Claimant’s employment. It is page 13 of the GP notes.206.4 The notes are in reverse chronological order. That is, page 2 of the GP notes has entries for May 2025, page 4 has entries for (as well as May) March and April 2025.206.5 Thus the period of the Claimant’s employment was covered by page 18 (or possibly 19, though that is not crucial) to page 13 of the GP notes. Other than pages 18 and 13, she has only included one other page (which is shown on [Bundle 604], and is not necessarily complete). So I have all or part of one page (either 14 or 15 or 16 or 17), and the other three pages have been omitted.206.6 The oldest extracts are on [Bundle 614]. The page number of the print out is cut off and the whole page is not photographed. It includes entries for 25 May 2022 to 30 May 2022. It is possible, though not certain, that this is page 19 of the GP note and the 5 lines at the top of the page are the end of the 6 June 2022 entry. In any event, it cannot be earlier than 30 May 2022 or later than 6 June 2022, and it includes “[patient] aware of risks and [side effects] – would like to commence HRT”. A similar comment is made in the entry at 9.59am on 30 May 2022.206.7 The 30 May 2022 entry includes “feels menopause symptoms as per last consultation, starting a new job - technology senior role”. It is clear that that is a reference to the job with the Respondent which the Claimant was just about to begin. 52 of 118206.8 I note the full 7 June 2023 entry. It ends “feels more stress than menopause”.206.9 I note the full 19 March 2024 entry which is on pages 12 and 13 of GP notes. It is [Bundle 607 and 606]. It includes that the Claimant refers to having spoken to a particular doctor previously about “menopause symptoms”. It refers to “anxiety irritability, sleepless nights, hot flushes, not so much brain fog but inability to process thoughts when panic anxious”. It includes “would medical note to say has menopausal symptoms”. Then at the bottom is “comment: letter for employer – has had stress from harassment/work related stress / bullying with menopausal symptoms affecting ability to work for last 1 year. Continue IAPT. Declined HRT/meds”. [I am treating reference to “IAPT” and “Talking Therapies” respectively as references to the same / similar treatment provider.]206.10 The same page shows that a letter was produced and it was a “to whom it may concern” letter.[207]The letter produced was the one shown at [Bundle 594]. It read in full: This is to confirm that Miss Mirza has had a number of factors that have affected her productivity and performance at work. These includes menopausal symptoms of anxiety, irritability, lack of sleep, hot flushes and inability to process thoughts when anxious. This has been exacerbated by bullying, harassment and work related stress for which she did not have adequate resolution or support for.[208]My finding is that the only times that the Claimant discussed menopause symptoms with the GP are those noted above. So, around 30 May 2022 and 6 June 2022, she was having some symptoms; the exact details are not specified, but HRT was discussed. I would have to ignore the beneficial effects of such treatment, but the Claimant did not continue with HRT. The passing reference on 7 June 2023 was a comment in which menopause was being ruled out as a cause of the matters discussed in that particular consultation.[209]If the Claimant had discussed menopause, or the effects she believed it was having on her, then that would have been recorded in the GP notes. Further, she would have revealed the GP notes containing that information. I take the Claimant at her word that she was not seeking to conceal any relevant information by her failure to supply the full set of GP notes, and that she disclosed all the relevant entries. My finding, therefore, is that there was no discussion with her GP about menopause symptoms after 6 June 2022 until after the end of employment.[210]My finding is that the Claimant did ask the GP to write that she had had “menopausal symptoms affecting ability to work for last 1 year” and the GP declined to specify that time period. 53 of 118[211]There is a letter from a social prescriber at [Bundle 970]. The name of the person is not on the letter, but it was not one of the GPs whose names appear in the letterhead.[212]The letter is dated 8 July 2025 (so the same month the hearing was due to begin, and 18 months after the end of employment) and it read: To Whom It May Concern I am writing in my capacity as a social prescriber to confirm that Miss Yasmin Mirza has experienced several factors that have adversely affected her productivity and performance at work. Miss Mirza has been experiencing menopausal symptoms including anxiety, irritability, difficulty sleeping, hot flushes, and episodes where anxiety impairs her ability to process thoughts effectively. In addition to these symptoms, she has also been living with depression for quite some time, which has contributed to persistent low mood, reduced motivation, and difficulty coping with everyday demands. These challenges have been further exacerbated by bullying, harassment, and reports of work related stress, for which she has reported a lack of adequate resolution or support. The cumulative effect of these factors has significantly impacted her mental health and her ability to perform effectively in her professional role. This letter is provided to support an understanding of the difficulties Miss Mirza has faced in relation to her work performance. Please do not hesitate to contact me if further information is required.[213]I am not satisfied that this can be treated as a letter from a medical expert. It certainly does not specify any awareness that the letter was to be used in evidence in court or state what the opinions are based on or give any dates (in relation to menopausal symptoms).213.1 Taken in isolation, this letter tends to imply that “depression” is something the Claimant has had for “quite some time” and the menopausal symptoms are more recent. The other evidence does show that the Claimant discussed menopausal symptoms in June 2022, and so that is something I have to take into consideration when assessing how helpful this letter is to me in relation to the matters which I have to decide.213.2 The Claimant has worked since she ceased working for the Respondent and the letter reads as if the author believed it might be something shown to a current employer. Again, that is something which adversely affects the weight which I am willing to place on this particular letter.[214]The Claimant produced a letter signed by Dr Indre Semogas dated 5 August 2025 (so almost 2 weeks after her cross-examination was concluded, and six days before the part heard hearing resumed) which read, in part: I am writing to confirm that Yasmin Mirza is registered at our GP practice. Miss Mirza has been reviewed with features of mixed anxiety and depressive disorder over the past 3 years. 54 of 118 Low mood, anhedonia, and generalised anxiety have resulted in ongoing review over this time through our GP practice, and through Brent Talking Therapies. Miss Mirza has reported multiple triggers to her symptoms, including consistent reports of significant stress related to work circumstances. Alongside this Yasmin has reported difficulty in managing menopause symptoms inclusive of anxiety, irritability, and sleep disturbance. I can confirm that Miss Mirza has had consultations regarding the above on the following dates: 07/06/202305/10/202319/03/202414/10/202403/03/2025[215]So the first two of those consultations are during the Claimant’s employment with the Respondent and the remainder are after that employment ceased (and, indeed, after Claim 1 was presented).[216]I note that the GP’s letter says that the Claimant “has reported” the difficulty in managing menopause symptoms. As above, my finding is that she had two discussions with the GP, around May and June 2022, and did not discuss any alleged menopause symptoms again until her request for a letter on 19 March 2024. I am not, of course, suggesting that there is anything unprofessional about Dr Indre Semogas’ letter. I am simply stating that the contents are entirely consistent with my findings of fact about what the Claimant said to the GP about menopause symptoms during, and before, her employment with the Respondent. PTSD[217]The Claimant’s impact statement asserts: I developed PTSD because of the trauma I suffered and because of the prolonged bulling and harassment I received at work, and this is something I continue to suffer with. I suffered with PTSD as the company refused to take my complaints seriously and by denying my basic human rights, led me to suffer unnecessary trauma and prolonged suffering.• My PTSD includes suffering with flashback, overwhelming feelings of inadequacies, feeling shameful as if I did something wrong. I recall the feelings of being powerless, helplessness and completely abandoned by the institute that was meant to protect its employees from such injury.• My PTSD has affected me in securing another position, as I am often terrified that I will meet other people that will treat me as badly as Honeywell did. It felt like I was being mentally tortured on a regular basis.• I have attended therapy sessions recently to try and come to terms with what I suffered and what happened to me at Honeywell, which was truly a traumatic experience that is still affecting me today. 55 of 118[218]The medical evidence that she has produced does not support any assertion that she has received any medical opinion that she might have post traumatic stress disorder.[219]I find it to be inconceivable that the GP letter dated 5 August 2025 would have failed to mention PTSD if that had been diagnosed.[220]I note that when the Claimant wrote to the Respondent with the 19 March 2024 GP letter (quoted above), the Claimant stated [Bundle 591] I have also attached a letter from my GP confirming my symptoms at this time. My GP saw me through out this process, and it was the same GP that signed me off work, with work related stress. My mental health conditions have been ongoing for over a year now, and I am still suffering from PTSD as a result of the toxic working environment at Honeywell, which has been compounded by the loss of my job and income and the negative affect this is having on myself and my young son, whom I am the sole provider for. work related stress and anxiety[221]I have also taken account of the comments the Claimant has made in relation to menopause symptoms and PTSD symptoms when considering “work related stress and anxiety”.[222]Her impact statement includes:• Due to the constant and prolonged bullying and harassment I received from my line manager, and then his manager which was made worse due to the zero support I received from the Human Resources department throughout my sick absences I suffered with severe stress and anxiety.• Because the business refused to take my concerns seriously, this resulted in me suffering with PTSD – Post Traumatic Stress Disorder. I am still suffering with this now, which includes flash backs, feelings of overwhelming panic and a distorted view of myself, instead of being allowed to recover and recognised as a victim, I have been denied this which has resulted in compounded and continued trauma.• The work-related stress due to the bullying, harassment and discrimination was so bad that I thought I was going to die from a stress induced heart attack.• This started around March 2023 and continued throughout my employment when it ended, end of January 2024, and continued until recently when it seems to be easing since I started my new job in June 2024. However, I still get flash backs and an overwhelming sense of miss justice for how badly I was treated.[223]I have taken account of the letters from the GP surgery dated 19 March 2024, 8 July 2025 and 5 August 2025, as quoted above.[224]There is a letter dated 9 May 2024 at [Bundle 603]. It is from CNWL Talking Therapies Service. It reports the Claimant being discharged from that service following meetings on “6 occasions for treatment of low mood and anxiety”. It does not specify when the first meeting was (or the referral). It says that, at the end to 56 of 118 the treatment, the Claimant’s scores showed “mild levels of depression and mild levels of anxiety” and that the levels were below “caseness”. It states that the scores were a lot lower (in other words, her health was improved) since the start of the treatment. My finding is that, as of 9 May 2024, the Claimant did not have symptoms which the Service believed required ongoing treatment, though she was to receive a standard follow-up appointment, and was referred to her GP.[225]The Claimant has not disclosed her full GP notes for the relevant period. It seems from [Bundle 604] that she has a telephone consultation with someone at the surgery on 15 June and the entry reads “emailed referral to [Talking Therapies]”. I infer the GP surgery received a letter from Talking Therapies on 3 July 2023.[226]As per [Bundle 605], the surgery seems to have received more correspondence from Talking Therapies in February 2024. On 19 March 2024, it is noted that the Claimant has had ongoing counselling with Talking Therapies and more sessions were scheduled.[227]At the top of [Bundle 607] the end of the Talking Therapies treatment is noted. It was described as a self-referral. This seems to indicate that, on 15 June 2023, the Claimant was reporting to the GP surgery that she, the Claimant, had made a referral to Talking Therapies. In any event, neither the extract for 7 June 2023 (which is incomplete) nor for any other date specifically show the GP surgery as making the referral. On the balance of probabilities, the 9 May 2024 entry is correct, and the Claimant made a self referral to Talking Therapies.[228]While working for the Respondent, the Claimant had recorded sickness absence as follows:228.18 February 2023: “other”228.2 20 March to 23 March 2023: “other”228.3 15 May to 17 May 2023: "other" (see also [Bundle 252]228.42 June 2023 to 9 June 2023. As per Fit Note on [Bundle 624], the GP certified this as “stress”. There is also an entry in GP notes on [Bundle 604] which includes: Has been having increased stress at work, manager intimidation, works as sales account manager, feels there is bullying [at] workplace at moment She will speak to HR Has had poor sleep for [one month] – sleeps approx. 5 hours a night Feels is more stress related feels some anxiety due to workplace feels more stress than menopause 57 of 118228.55 July 2023: “stress” (see [Bundle 627]), self-certified228.6 10 to 16 July 2023 – see [Bundle 632 to 636]. Ms Weigand asked for Fit Note and suggested Occupational Health referral.228.77 September 2023 - stated to be menopause. See [Bundle 629]228.8 5 October to 22 October 2023. The Fit Note dated 5 October 2023 described this as work-related stress. This absence commenced on 28 September 2023. As discussed above, while [Bundle 604] includes the GP records for 29 September 2023 (showing the Claimant could not get a GP appointment immediately) and perhaps part of the entry for 5 October 2023, she has not supplied the full entry for 5 October, or the period immediately after that. [Bundle 605] is clearly not the next set of chronological entries because the entry for 12 January at bottom of page is incomplete and does not continue on [Bundle 604].[229]Having taken account of all the facts mentioned below, as well as above, my decision is that the Claimant did not have a disability at any date during her employment with the Respondent.[230]I have taken each of the alleged disabilities and have considered the alleged symptoms for each, and considered each alleged impairment individually, as well as taking the combined effect on day to day activities into account.[231]For the symptoms which the Claimant attributes to menopause, she has not persuaded me that any of anxiety, irritability, and sleep disturbance actually were attributable to menopause effects rather than the work issues that are specifically discussed with the GP.[232]For the assertion that PTSD has any effect on the Claimant’s day to day activities, I reject that assertion on the basis that there is no evidence that the Claimant actually has PTSD.[233]I do note the GP letter of 5 August 2025 mentions that the Claimant has “been reviewed with features of mixed anxiety and depressive disorder over the past 3 years”. However, I do not find that, prior to the end of the Claimant’s employment, there are any undisclosed entries in the GP notes that are part of the reason for that conclusion. Each of the 7 June 2023 and (the parts I can see of) the October 2023 entries appear to refer to incidents at work as being the cause of stress, rather than an underlying condition being the cause, of either the stress or the absence. An additional cause of stress in October is the Claimant’s attendance at a hearing on a matter unrelated to her employment as noted in the GP entry at 4 October 2023. 58 of 118[234]My finding is that each of the three letters from the surgery was written after the Claimant contacted the surgery on 19 March 2024 to give her account of having suffered symptoms for a year.[235]The second two letters are written after the entry at the bottom of [Bundle 608] written in or shortly before October 2024. That entry reports the Claimant as saying that she had anxiety in previous job (so with the Respondent) and that that was the reason for Talking Therapies. Again, this does not refer to an underlying condition. The entry also refers to low mood and anxiety for past year and refers to an incident in her new job causing anxiety,[236]The second two letters are also written after the entry at the top of [Bundle 609] written on or after 21 February 2025 which refers to bereavement and anxiety and issues a 21 day Fit Note. They are also written after the entry in March 2025 at the bottom of [Bundle 610].[237]Thus, on the evidence, during the Claimant’s employment, there were issues that affected her day to day activities in around July 2023 and again in October 2023. She was affected sufficiently that she was unable to work. My finding is that each bout was a reaction to life events rather than caused by an underlying condition.[238]Furthermore, even if I am wrong about that, and if there was an underlying condition, it is not correct that, as of July 2023, the effects on day to day activities were likely to last for, or recur for, a period of a year or more. Similarly, the same is true as of the time of the October 2023 absence.[239]In fact, based on the Talking Therapies discharge letter, by 19 May 2024, the service did not specify that the Claimant had an underlying condition that was likely to recur in the future. My finding is that, as of the end of employment, in January 2024, having suffered sickness absence in July 2023 and having suffered sickness absence in October 2023, it was not the case that it was likely the effects would recur again, or that would recur intermittently for a period that lasted until after July 2024.[240]Thus the Claimant has failed to demonstrate that she has any impairment, or combination of impairments, that satisfy the definition of disability.
The findings of fact
[241]These the findings have been decided on the balance of probabilities. I do not find it necessary to list every single undisputed fact. Where there has been a dispute between the parties about any fact, I have only resolved that dispute where I think it necessary to do so. 59 of 118[242]Honeywell Productivity Solutions Limited (“the Respondent”) is a company specialising in the creation and supply of mobile computers, printers, and data capture devices to companies of all sizes around the world..[243]The Claimant’s employment started on 6 June 2022, and she reported to Mark Berry, Country Sales Manager for UK and Ireland. Mr Berry was part of the selection panel which recruited the Claimant.[244]Mr Berry reported to Mr Fredriksson.[245]The Claimant was employed as an Enterprise Account Manager at the Respondent from 6th June 2022 until last day of employment, 25th January 2024.[246]Her remuneration package included basic salary, a company car, pension and commission. She could also claim expenses.[247]The Claimant’s role required her to develop business relationships in order to generate sales activities and revenues for the Respondent. A requirement of the role, as made clear to her on her recruitment, was to “open doors to new business” by scheduling customer meetings, and to generate a pipeline (including from cold accounts).[248]The majority of the Respondent’s sales in the UK are done via a partner. Thus the Claimant was required to persuade the end user, the ultimate purchaser of the product, to buy the Respondent’s products, or, at least, to persuade them to be sufficiently interested in them to have a conversation with a partner. If a sale was to take place via this route, then the customer would buy from the partner, with the partner being supplied with the products by the Respondent. A sale which was generated in this way would be recognised as having been generated by the Enterprise Account Manager.[249]The Claimant had particular nominated accounts. That is, she had a list of businesses that it was her responsibility to attempt to target in order to generate business. Her fellow Enterprise Account Managers had their own lists, with different businesses on them.[250]The Respondent uses a software package called Salesforce. Amongst other things, it is intended that it includes details of contacts that the Enterprise Account Managers have made with particular businesses.[251]Not all new transactions are necessarily attributable to a particular Enterprise Account Manager. Some new transactions are generated by the partners. The Respondent has sales staff dedicated to working with the partners and those staff also report to Mr Berry. Sales that are deemed to be generated by the partners are called channel sales. 60 of 118[252]Enterprise Account Manager is not a junior role. Prior to joining the Respondent, the Claimant had 30 years’ experience in technology sales. Prior to working in sales, she worked in procurement for a global defence and aerospace manufacturer as a senior. She has an HNC in business and finance, and an ordinary business degree. These were some of the qualities that led Mr Berry to appoint her to a job which he knew would be reporting to him[253]For the year ending December 2022, the Claimant was 106% of annual target and Mr Berry was noted on her annual review that she was a “superstar” in the making.[254]Once a year, the Respondent holds an event called a Partner Kick Off event (“PKO”). This is not attended by potential end user customers, but is attended by representatives of the partners. The Respondent expects that Enterprise Account Managers attend. Furthermore, it is a multi-day event, and the Respondent’s expectation is that the Enterprise Account Managers attend for all of it, including staying at the location overnight. Mr Berry’s genuine opinion is that it is important that all Enterprise Account Managers do attend because their work in developing relationships with end users only comes to fruition – that is only generates revenue for the Respondent – if the Enterprise Account Manager is able to introduce that customer to a partner which meets their needs.[255]In 2022, the PKO was in Prague and the Claimant attended.[256]My finding is that the PKO was not the only event for which Enterprise Account Managers were expected to attend and stay overnight. Mr Berry estimates (paragraph 54 of his statement) that there would be one or two events per year on average. I accept that estimate.[257]The Claimant is female and, at all relevant times, she was in her mid 50s and was a single parent. The Claimant’s child was in his early teens during the Claimant’s employment. I accept - and I take into account in my decisions - what the Claimant says in the first sentence of paragraph 12 of her witness statement.[258]In December 2022, there was a Christmas event in Birmingham. There was going to be an overnight stay. The Claimant attended and brought her son.[259]My finding is that Mr Berry did not pressurise the Claimant into bringing her son. Furthermore, my finding is that nothing that occurred in connection with this Christmas event caused Mr Berry to treat the Claimant differently from December 2022 onwards compared to before then.[260]The Claimant claims that a colleague approached her at the event and said that they wanted to be told if Mr Berry started to bully the Claimant. Regardless of whether that happened or not, it does not assist me in the decisions that I have to make in order to address the complaints that have been presented. 61 of 118[261]My finding is that – for whatever reason - the Claimant formed the opinion that she might potentially bring a claim against the Respondent.261.1 She commenced a practice of covertly recording conversations with Mr Berry. She did not tell him at the time she was doing so. Therefore Mr Berry is in no position to be able to say whether the Claimant actually made any more than the 11 covert recordings which she has disclosed to the Respondent as part of this litigation. The earliest of those is 13 March 2023 and the latest is 2 June 2023.261.2 During cross examination, the Claimant suggested that the Respondent had covertly recorded her. In particular, she suggested that one of the transcripts in the bundle had been produced from such a recording. My finding is that that is not the case, as I believe that the Claimant now accepts. Her claim made in cross-examination that she recorded only conversations with Mr Berry is therefore untrue. She also recorded at least one conversation [Bundle 761] with Mr Fredriksson when Mr Berry was not present. This is in addition to the conversation with Mr Fredriksson [Bundle 942] which was also attended by Mr Berry.261.3 My finding is that the reason the Claimant made those recordings was with the intention of using them in evidence if she brought a tribunal claim. She had brought a previous claim against a previous employer. I am not implying criticism of the Claimant for having brought a previous claim, but the fact that she had done so shows that she was aware of the existence of employment tribunals and the possibility of bringing claims.261.4 My finding is that the reason that she did not tell the other participants that she was recording the conversations is that she did not want them to know. For one thing, she did not want them to tell her that she must stop the recording. For another thing, she did not want them to be aware that the things that they were saying were being recorded.261.5 The Claimant also decided that she would take photographs using her phone camera of certain emails and other documents from her computer screen. There are various such photos in the bundle, including between [Bundle 716] and [Bundle 730]. The date on which she took the photo is not visible in all cases. However, a batch were taken on 7 January 2024, and at least one in April 2023 and at least one in May 2023. My finding is that the reason that the Claimant took photographs rather than print the document, or save it to a drive, is that she did not want there to be a record, accessible by the Respondent, that she had done so. My finding is that she had potential litigation in mind when she started taking these photographs. I do not accept her denials on that point, and her explanation for why she took photographs rather than printed hard copies was 62 of 118 inconsistent. At first she suggested that it could have been printer problems, but later accepted that she did not have such permanent printer problems that would have occurred on each of 7 January 2024, 26 April 2023, and 30 May 2023. The Claimant took some photographs, on 9 August 2023, of her calendar, which she intended to keep in order to assist her with potential litigation in the future.[262]My finding is that, at the very latest, the Claimant was contemplating potential legal action against the Respondent by 13 March 2023.[263]This was more than 3 months before the earliest of the alleged protected disclosures. In other words, her practice of making recordings (and gathering evidence by other means, such as the photographs of her screen) had started before the first of the alleged protected disclosures.[264]In early March 2023, there was a sequence of events that form part of the
List of issues
[265]The Claimant was asked by Mr Berry to attend a face to face meeting attended by him and Mr Fredriksson. It was to take place at a hotel in Manchester. The choice of venue was partly dictated by Mr Fredriksson’s movements. He is based in Sweden and he was intending to visit locations in the North of England. The intention was that all of the team would attend, and have the opportunity to meet Mr Fredriksson. Mr Berry and Mr Fredriksson wanted to speak to the Claimant.[266]Throughout most of the litigation including throughout her own cross examination the Claimant was adamant that this was a meeting in Leeds. My finding is that it was actually in Manchester and the Claimant conceded this during the final hearing while Mr Berry was giving oral evidence.[267]Given that Manchester and Leeds are two different locations - and given that part of the Claimant’s dissatisfaction with what was said to her about this meeting was specific to travel arrangements to the meeting - my finding is that she does not have a good recollection of exactly what was said to her, by Mr Berry or anybody else, in connection with the requirement that she attend this meeting.[268]Furthermore, my finding is that the document which appears at [Bundle 270] - described as a diary of events - was not written close in time to 5 March 2023. If it had been, the Claimant would not have made the mistake of thinking that there had been a discussion about driving to Leeds rather than driving to Manchester.[269]I accept Mr Berry's account and I reject the Claimant’s. It is not true that he told her she was not allowed to attend the meeting by train. Rather he pointed out to her, stating his honest opinion, that the venue was not close to a train station. 63 of 118[270]In the event the Claimant did not actually attend the meeting and the explanation she gave at the time is one that she stands by, namely that she believed that the weather conditions were such that it was not safe for her to drive from her home in London to the meeting.[271]The Claimant had not been required to stay overnight in connection with the intended meeting in Manchester. It was intended to be a comparatively short meeting of probably no more than an hour or so and while the Claimant would have had the opportunity to stay overnight and claim expenses, she was not required to do so in order to attend the meeting.[272]She did not in fact attend the meeting. I am not persuaded that the Claimant or Mr Berry have any accurate recollection about whether the Claimant specifically suggested attendance by video. Mr Berry has suggested some reasons that a video meeting would not have been practicable, but my finding is that he is making guesses now about what might have been the thought process at the time rather than recalling any specific discussion he had with the Claimant about a video meeting, or any specific thought process he had at the time about why he did not suggest a video meeting. A fairly obvious observation of my own is that a video meeting with Mr Fredriksson could take place at any time regardless of whether he was in the UK or not. I do accept that it had been Mr Fredriksson’s and Mr Berry’s intention to meet all of the team face to face. Regardless of whether or not that was reasonable (and the Claimant’s position is that it was not reasonable, because it was a long distance for her to travel), the Claimant was treated the same as the rest of the team in relation to the request for a face to face meeting.[273]Mr Berry emailed the Claimant on 25 March 2023 [Bundle 734] setting out some concerns. His email included: the guidance you have been given since joining Honeywell, … is speak directly with the end user and use the partner for delivery. I did say right from the start of your role contact the partners to find out who has strong relationships, but at the same time I also asked you to speak internally and talk to the global teams and use many other sources. For example - Have you checked the CD2 reports for intelligence on where the end user spends with Honeywell in other countries, then contacting those countries for intelligence? I used this when doing your role and it proved very successful. Something I suggested 10 months ago. Partners play a valid part in the sales process, but you should recognise when to play that card. As an enterprise sales person you should know what value each partner brings to your customer based on their capability. You then select the best partner for the job based on this intelligence. That is unless the client makes that decision for you. Again, for the avoidance of doubt, you should have done this level of intelligence already. As per my email yesterday, stay focussed please. Your role is to represent Honeywell directly with your list of end user accounts. Ten months ago the plan was to start building a business relationship with stakeholders across the business, understand our market share % in these accounts, then work a plan to identify the short term business through tactical delivery, whilst making sure Honeywell features on the long 64 of 118 term business plans. In ten months you should have demonstrable strong evidence that at least 70 to 80% of your accounts have this completed fully. You have a duty of care to hit targets. Right now you are a very long way off this measure in 2023 and there is no sight of this improving looking at the state of your pipeline. So please understand the severity of the situation you are in right now and stay focussed please.[274]My finding is that he was expressing his genuine opinions in this email. He genuinely had given the information and guidance to the Claimant that is described in this email. His opinion was that the Claimant was failing to hit targets and that this was a cause for concern; this opinion was genuinely based on his assessment of the Claimant’s performance at the time and had nothing to do with any discussions about a Christmas event in December 2022. Furthermore they were not sham opinions put into an email because of annoyance over the Claimant’s failure to attend the meeting in Manchester or for any other reason.[275]In April, (on 17 April according to the Claimant, or possibly 13 April according to [Bundle 718]), there was a discussion for which the transcript is [Bundle 805].[276]This was a meeting arranged by Mr Berry after the Claimant had said to him that she would not be able to stay overnight for the PKO. He had copied the email to the meeting organiser Pia who queried whether the Claimant would be able to bring her child to the event. This was what the Claimant had done the previous December.[277]Mr Berry’s comments included: MB: First of all, I get that you know like the meal we had with Pete the other day I don’t expect you to be there cos that’s not a vital business overnight that’s just a if you can. But there are certain times like the PKO that it’s like frowned upon if you’re not there for those two days. So there are certain events where like the Prague event you came to and you managed to come to that, there are certain events that we do insist our sales team are there at and I think the Partner Kick Off one is one that I would have wanted you there to be certainly there overnight and then maybe travel to our RXL the next day cos Birmingham to Wigan is what 50 miles … And MB: So those events I would normally… so what… the question to you I suppose is what… how have you got on in finding some temporary uhm you know for those one or two, cos there’s probably only one or two occasions a year that you’re expected to do… to stay over, have you got have you got something sorted? And MB: Okay okay I mean cos obviously that does put a bit of a strain on the role itself cos like you say there are times when you’ll need to be overnight and I mean how long do you think you’re going to be before you’ll be able to leave him on his own, I mean how long are we looking at in terms of you know is he 14 now or 13 I can’t remember his age? And 65 of 118 MB: So we’ve got good attendance pretty much apart from yourself second day. Uhm I mean don’t get me wrong you know firstly just for future reference a Partner Kick Off event I expect my entire team to be there for the two day event, that’s it, end of story that it, it’s a sort of three line whip it’s a must attend. So if you book customer meetings it’s just that’s foolhardy. Uhm if a customer insists on a meeting then that’s slightly different we’ll manage that, but I do expect full attendance …[278]It is quite clear from the various comments at that part of the discussion that he was seeking to put pressure on the Claimant to stay overnight. The discussion continued and there was a discussion about the possibility of the Claimant not staying overnight but rather travelling home in between. Although there was some reluctance on his part, Mr Berry accepted that they had a plan for this particular forthcoming meeting that he was content with. At the bottom of [Bundle 810], he said that he was sure that the Claimant had looked into all possible avenues of arranging childcare. I am satisfied that what he was saying - and what the Claimant understood him to be saying – was:278.1 Firstly, that he was content, albeit reluctantly, that the Claimant would not have to stay overnight for this particular event.278.2 Secondly, he would expect her to make efforts to stay overnight where appropriate.278.3 Thirdly, that it would be mandatory to do so for the PKO. He would insist on that.[279]Having discussed Prague and the arrangements the Claimant had made to enable herself to attend that, he added MB: We’ll do that, and I will continue to support you. Cos like you say with the dinners like when we have like get togethers they are literally take it or leave it you know it’s your choice it’s uhm it’s just a social thing and I’m dead comfortable with that and no issue whatsoever, it’s more that so when we have a Partner event, and all our partners are staying over it’s just nice to be able to get to know them and uhm…[280]Bearing in mind that this was a covert recording which the Claimant knew she was making and which Mr Berry did not know she was making, I am satisfied that this comment represented his genuine opinion at the time.[281]On 28 April 2023 [Bundle 213 to 214], he also expressed concerns. He genuinely held the view that the Claimant was not performing satisfactorily taking account of the senior nature of the role. Mr Fredriksson suggested scheduling regular meetings with the Claimant and Mr Berry did so. His reason for doing this is that his line manager suggested it.[282]The other suggestion Mr Fredriksson made was to commence a “PIP”.[283]The Respondent’s performance management policy commences at [Bundle 116]. As noted on [Bundle 117], there is usually an informal process first and the 66 of 118 suggested timescale for the informal process is four weeks. The PIP is intended to clearly define the improvements required along with time scales for achieving the improvements and there is to be a regular review. A copy of the PIP is to be given to the employee and a copy retained by the manager. The policy requires the employee to be put on notice that if they fail to achieve the targets during the informal stage then there may be progression to the formal stage.[284]The documents shown on [Bundle 218] demonstrates the PIP commenced on 9 May 2023. The document complied with the requirements of the policy. Rather than four weeks it suggested a period of six weeks. In other words the Claimant had six weeks in order to demonstrate improvement and thus avoid progression to the formal stage.[285]Mr Berry’s 12 May email to the Claimant [Bundle 216] was forwarded to HR on 13 June 2023. That email stated: Following today's review meeting I have updated your PIP document (see attached) to be more specific reference the SVP. For the avoidance of any doubt, as of next Friday you have 30 min each week to present specific progress each week on the 3 areas highlighted for improvement. I am happy to have separate coaching sessions at points during the week where you feel necessary however, use the 30 mins on a Friday to present your progress with demonstrable evidence. I hope this is clear.[286]This email represented his genuine opinion (as of 12 May) that the Claimant’s performance required improvement.[287]Mr Berry and the Claimant continued to have discussions and there was also some written feedback. For example, there was the email exchange culminating on 18 May 2023 at [Bundle 219].[288]In emails (for example, the one sent 31 May 2023 at 11:50 [Bundle 225]), Mr Berry made comments that are consistent with things that he said in the conversations which the Claimant covertly recorded. It was his position that unless the Claimant’s performance improved there was a risk that she would lose her job. He also stated that he did not want that to happen and he was willing to offer assistance to the Claimant to try to avoid that happening. I do not accept the Claimant’s overarching allegation that Mr Berry treated her differently when he believed there were no witnesses (and no written record of the discussion) compared to what he wrote openly to the Claimant and to HR and to Mr Fredriksson[289]Following further discussions on 16 June 2023 [Bundle 228], Mr Berry sent an email to the Claimant to confirm that the PIP had been extended to the 14 July. He attached the document at [Bundle 229] to that email. 67 of 118[290]As mentioned above (in analysis of the disability issue), the Claimant had had a period of sickness absence at the start of June 2023. On return from that absence she met Ms Weigand. I am not satisfied that the Claimant specifically mentioned menopause symptoms in this meeting. It took place not long after the GP appointment of 7 June 2023 in which the Claimant had suggested that the illness she was suffering at the time was more to do with stress than menopause.[291]At [Bundle 231], there is an email from Mr Berry dated 23 June 2023 about which there is a dispute between the parties. The Claimant argues that this was a change to the existing protocols and that this alleged change was brought in with effect from 1 July 2023.[292]Mr Fredriksson does not agree with the Claimant and says that - as far as he is concerned - the arrangement set out in the email is what applied globally and he would expect everyone in the UK to have already been aware of that protocol. For her part, the Claimant suggests that Mr Fredriksson is in no position to directly know how Mr Berry arranged matters in the UK.[293]The Respondent’s witnesses concede that there is no documentary evidence to confirm that what Mr Berry wrote was simply a confirmation of an existing protocol rather than the introduction of a new one.[294]The parties do agree about the effects of the protocol described in the email, it is only the start date that they disagree about.294.1 The protocol made clear that - in certain circumstances - new transactions from one of the “accounts” which was in the name of a particular Enterprise Account Manager would not be credited to them, against their targets, as being new business generated by them.294.2 They would get some commission, because it was one of their accounts, but it would not be listed in Salesforce as their pipeline if it was credited to a channel manager. It would be credited to a channel manager if the Respondent decided that the source of the opportunity was deemed to be a partner for which that channel manager was responsible, rather than the Enterprise Account Manager.294.3 The email did not suggest that the Enterprise Account Manager would lose the account. On the contrary it made clear that they would need to continue to attempt to nurture the account and generate further business from it.[295]The Claimant describes an alleged protected disclosure - dated 29 June 2023 - in paragraph 41a of her particulars of complaint [Bundle 23]. The Claimant has not included in her witness statement an exact description of what she allegedly said. My finding is that she has no clear recollection of the alleged conversation with Darren Beckley. I am not persuaded that the Claimant said something to Darren 68 of 118 Beckley that she believed tended to show that Mr Berry or the Respondent or anybody else was breaching a legal obligation. In any event, even if such a conversation did take place I am satisfied that nobody brought that conversation to Mr Berry's attention.[296]On 7 July, a meeting took place attended by the Claimant and Mr Berry and Ms Weigand. As far as Ms Weigand is aware, the reasons for it are as stated in paragraph 4 of her witness statement, namely to discuss the Claimant’s behaviour. Ms Weigand, of course, only knows about Mr Berry's motives based on what he told her. However, I am satisfied that she saw nothing inconsistent between his stated reasons for the meeting and what she witnessed before, during and after the meeting.[297]My finding is that Ms Weigand's email to herself on 10 July 2023 at [Bundle 249] stated her genuine recollections that she had around three days after the meeting. Ms Weigand knew that the Claimant was considering raising a grievance because she, the Claimant, was arguing that Mr Berry’s comments to her about her performance were unfair and had crossed the line. Some examples were quoted by the Claimant. There was a debate about whether Claimant should have received pipeline credit for a particular transaction with Unipart. The Claimant made clear that her position was that she should get such credit because – she argued - the business had been generated prior to 1 July 2023 and - in her opinion - the protocol only started from 1 July 2023. On the Claimant’s case - as she put it across at that meeting on 7 July 2023 - if she were to be given the pipeline credit for the Unipart business then she would not be poorly performing and there would be no need for her to be on a PIP.[298]In the presence of HR, Mr Berry openly disputed the Claimant’s position. Ms Weigand suggested that the Claimant should produce something in writing about the transactions that she said should be credited to her and this could then be reviewed by the Respondent. The 7 July meeting was on a Friday, and Ms Weigand’s suggestion was that if the Claimant produced such a document, it could be reviewed on Monday 10 July.[299]The Claimant argues that it was during this 7 July meeting that she made the second of her protected disclosures. In paragraph 41b of her Particulars of Complaint, she alleges that she raised matters about what she describes as “illegal pricing activity”. I am satisfied that she did not do so.[300]To the extent that the Claimant suggests that the comments made about failing to properly credit her with the Unipart business (for the purposes of measurement against her targets) should be treated as protected disclosure, my decision is that it was not. I am not satisfied that the Claimant genuinely believed that this disclosure tended to show there had been a breach of a legal obligation by anybody. If she did genuinely think that then I do not think that was a reasonable 69 of 118 belief for her to have. At most, the Respondent was required to make a judgment call about which of its salespeople should be credited with particular transactions or activities in Salesforce. I have not been persuaded that a reasonable person would regard the decision as breaching a legal obligation, taking into account that commission would be still payable to the Enterprise Account Manager, even if the decision was that the new business had been generated by channel sales team. Furthermore and in any event, I do not believe that the Claimant genuinely thought that this was a disclosure that was in the public interest. If she did think that, then it was not a reasonable belief for her to hold. It was a dispute about a matter that was important to her given the fact that she was on a PIP but it would not have been reasonable to believe that it had any wider public interest significance.[301]The Claimant also alleges that the very fact that the meeting was arranged was a whistleblowing detriment. Mr Berry did not know about any discussions the Claimant had had with Mr Beckley, and he did not arrange the meeting because of such discussions. Furthermore as a matter of logic, he did not arrange the 7 July meeting because of any alleged disclosures which the Claimant made during the course of the 7 July meeting.[302]On 11 July, Mr Berry wrote to Ms Weigand [Bundle 251]. In the first paragraph of the email he said that he was reaching out for support. He said the situation with the Claimant had reached a level where he needed help. I accept that that was his genuine reason for sending the email. It is entirely consistent with the correspondence and discussions from the start of the PIP.302.1 As he states in the email, part of his reason for seeking support was the Claimant comments made to him at the meeting on Friday 7 July 2023.302.2 That was coupled with the fact that the planned further meeting for 10 July 2023 had not gone ahead. The Claimant had been absent that day.302.3 My finding is that another part of the reason for sending the email is that the scheduled end date for the PIP (which had been extended from the original intended date) was now 14 July 2023. That is, just a few days after the date of the 11 July email.302.4 Although not expressly stated in the email there can be no doubt that his intended meaning was that he believed that the matter should now move to the formal stage of the PIP (at the very least).302.5 He expressly stated that action should be appropriate and in line with due process. My finding is that he was anticipating that the Claimant was likely to fail to improve and the ultimate outcome was that she was likely to be dismissed. He was not seeking to persuade Ms Weigand to circumvent proper processes and nor was he seeking to conceal his true opinions (ie that the Claimant was performing poorly). 70 of 118[303]Mr Berry’s contemporaneous comments at [Bundle 252 to 256] represented his genuine opinion at the time about the lack of progress during the PIP and what he saw as the reason for it, being the Claimant’s failure to be proactive and failure to follow his instructions. In particular, he was genuinely worried about the Claimant’s failure to contact the customer described on [Bundle 254].[304]The Claimant presented a formal grievance on 12 July 2023 [Bundle 265 and 266]. It included:• Treated differently from my male colleague on my performance reviews.• Treated differently from a younger member of the team with regards to account allocation and sales performance.[305]It was a “protected act” as defined in the Equality Act 2010 ("EQA").[306]The Respondent chased the Claimant to provide details .306.1 As per [Bundle 283], the Claimant wrote to Ms Weigand on 20 July to say that she was going to speak to a legal representative before she put anything further in writing.306.2 On 2 August 2023, the Claimant supplied the document at [Bundle 270 to 280]. My finding is that this document was not produced contemporaneously with the dates shown within it, but was produced later than 12 July 2023 and shortly before 2 August 2023.306.3 Within the document, the Claimant alleges that other colleagues believed that they had been belittled by Mr Berry.306.4 She also says that she had had difficulty sleeping in prior to a meeting on the 21 April 2023, which he says was due to bad menopause symptoms. She says that she was suffering brain fog because of menopause and that Mr Berry treated her aggressively. My finding is that at the time the Claimant had not said anything to Mr Berry about menopause.306.5 In the document, the Claimant referred to the fact that she had been recording her weekly meetings with Mr Berry.306.6 In the document - in her entry on [Bundle 200] and referring to 30 May 2023 – the Claimant refers to a colleague also being on a PIP. She alleges that that colleague was getting more support than she was. She reported that the colleague's impression was that he would be out of a job if he did not bring in extra business. She reported that Mr Berry had told him that he could turn it round. My finding is that Mr Berry had made similar comments to the Claimant to the effect that he believed she could turn things round. In particular, he made clear he was suggesting that if she followed his instructions she might turn things round. 71 of 118306.7 The document refers to being off with stress from 2 June to 9 June and that Mr Berry was a lot less hostile since she returned. To the extent that it is suggested that this is referring to just the week of her return, I do not accept that. The document was produced between mid-July and early August 2023 and my finding is that this comment referred to the whole of the period from the return to work until around 2 August 2023.306.8 In the document the Claimant referred to leaderboard and suggested that Mr Berry had said that everybody could see who was at the bottom and that those people needed to improve. She does not allege he mentioned her by name but she says that everybody would know it was reference to her, because she was at the bottom. This was a reference to the spreadsheets which Mr Berry produced and circulated which showed what targets the sales people had set themselves (having had a discussion with him) for a particular quarter and how they were doing in terms of achieving that target.[307]Regardless of what - if any - legal advice the Claimant took before writing that document, I am satisfied that she wrote it with the intention of putting her best case forward. She intended to do her utmost to show where Mr Berry was in the wrong and where any criticisms that had been directed at her were not justified. She did not allege that she had made any allegations of illegal activity to Mr Beckley on 29 June (or at all) and nor did she say that she was being targeted because Mr Berry was attempting to cover up illegal price fixing.[308]After the original submission of the grievance on 12 July, but prior to the Claimant’s supplying additional details on 2 August 2023, the Respondent made arrangements that the Claimant would report to Mr Fredriksson rather than to Mr Berry and notified the Claimant about that [Bundle 257 to 259] This was with the Claimant’s agreement and was stated to be an interim measure.[309]The Respondent wrote to the Claimant on 11 August 2023 [Bundle 289] to invite her to a grievance meeting. Luciana Minea, Senior Strategic Sourcing Manager, was to be the decision maker.309.1 The notes of the meeting with the Claimant are at [Bundle 302]. After the meeting, the Claimant forwarded the email trail between her and Mr Berry in which he alleged that - on around 4 July 2023 - she disregarded his instructions.309.2 In the meeting, the Claimant alleged that Mr Berry's bad treatment of her had began because of discussions about childcare and about why she could not attend evening events. Amongst other things, the Claimant said that she believed that somebody had left the team because of bullying by Mr Berry. She was given the opportunity to state which witnesses she 72 of 118 believed should be interviewed and to state what she thought the outcome should be.[310]As per [Bundle 306], Mr Berry was interviewed on 22 August 2023.310.1 He was asked about the meetings which the Claimant had described for at which the team sometimes stayed overnight. He said those meetings took place once per quarter but it was not mandatory for anybody to stay in the evening or stay overnight. My finding is that that was accurate.310.2 All of the Claimant’s allegations (as per her grievance meeting) were put to Mr Berry.310.3 He was asked if he had ever threatened the Claimant that she would lose her job and he denied it.310.4 He was also asked if he had made any hostile comments to her regarding either her performance or child care and he also denied that.[311]In relation to child care, as I have mentioned above, Mr Berry had – in fact - put pressure on the Claimant to arrange this so that she could stay more often at overnight work events. However he had also accepted that - other than the PKO - it would not be mandatory for her to do so. I do not find that what he said on 22 August was a lie; it was a subjective expression of his opinion.[312]In relation to Mr Berry’s previous comments about the Claimant’s performance and also about her losing her job, I am satisfied that both in the covert recordings and in emails which he had sent to the Claimant and to HR and/or to Mr Fredriksson, he had commented on the Claimants performance with the implication that a failure to improve could potentially lead to termination of employment. In my assessment of credibility, I take into account that he did not expressly refer to those things in the grievance interview. He had not hidden those things at the time, and my finding is he was not deliberately seeking to hide them when giving his answers to the questions put to him on 22 August 2023.[313]Ms Weigand was interviewed as shown at [Bundle 310] on 24 August 2023. Her comments were made while events were fresh in her mind and my finding is that what she said in that meeting is true. She did contact Mr Berry after the 7 July meeting to suggest that some of the things he had said had come across aggressively. In particular she highlighted that he had used the word “inability” in reference to the Claimant. It is clear that Ms Weigand was referring to Mr Berry using that word in connection with sales performance.[314]I accept that Mr Berry had been aware that the Claimant's stated reasons for absence in June were that the absence was because of stress. 73 of 118[315]Judith Phillips was interviewed on 24 August 2023. She was a new member of the team. She had already been an employee of the Respondent prior to joining the team. She was not recruited by Mr Berry to work for the Respondent, but he had brought her into the team to see whether she saw that type of work as a career development opportunity rather than remaining in channel sales. Ms Phillips was around early 30s or so.315.1 She commented amongst other things on Mr Berry's attitude to workers with childcare and she suggested that all of the team have children and cannot make all of the events. She had not heard Mr Berry criticise the Claimant because of that.315.2 She suggested that Mr Berry sought to bring competition within the team. She said he highlighted he was at the bottom and who was at the top of particular leaderboards.315.3 Ms Phillips has not been called as a witness, but I accept the accuracy of the answers given on 24 August 2023.[316]A one page grievance outcome was sent to the Claimant dated 14 September 2023 [Bundle 322]. It quoted the comments from the Claimant's 12 July letter including about being treated differently to male colleagues and a younger member of the team, that is Ms Phillips. The paragraph which contained the conclusions stated in full Following our Hearing, a thorough investigation was carried out, and I did not find sufficient evidence to support your complaint that you have been treated unfavourably compared to other members of the team. Therefore, the decision is not to uphold your grievance.[317]The letter also said: This does not mean that we do not take what you have presented to us seriously. As a result of the investigations, further measures will be taken in relation to the conduct described above by you. For reasons of confidentiality however, I am unable to provide specific details of any such measures.[318]Although not notified to the Claimant at the time, as per [Bundle 750], the recommendation was that Mr Berry complete further people leader training and unconscious bias training. Ms Weigand was asked to arrange this. I am not satisfied that he actually did undertake specific training as a result of the or the recommendation of 12 September 2023, as opposed to general management training and updates that he would have undertaken anyway.[319]As per [Bundle 326], the Claimant appealed by writing to Alison Campbell on the 20 September 2023. 74 of 118[320]As per [Bundle 351], a meeting for 16 October was proposed. It was rearranged for 2 November because of the Claimant’s sickness.[321]As per the exchanges around 2 November [Bundle 379 to 381], the Respondent had expected the Claimant to provide further information about the grounds for appeal. However, the meeting went ahead. The notes are at [Bundle 383]. Amongst other things the Claimant referred to a sexist culture and derogatory comments towards women.[322]On 6 November [Bundle 292], the Claimant summarised some of the key points she believed she had raised at the meeting.[323]The Respondent sent notes of the 2 November meeting and the Claimant supplied her tracked changes version on 23 November [Bundle 430].[324]The outcome letter is dated 4 December 2023 [Bundle 494]. It states that none of the appeal points had been upheld. It supplied some information, not previously put in writing to her, about what, according to the Respondent, the original grievance investigation had entailed. I accept the accuracy of those comments. That is, the initial grievance outcome was written after those steps had genuinely been taken.[325]Turning back to the alleged protected disclosures, the Claimant alleges that she made a disclosure on the 20 July to Mr Fredriksson and Ms Weigand (paragraph 41c of Particulars of Complaint).[326]Although the Claimant suggested during cross examination that she had not recorded conversations that did not include Mr Berry, she had actually made a recording of a conversation between her and Mr Fredriksson as early as 13 March 2023 [Bundle 761]. Therefore either she did not record the alleged comments on 20 July 2023 because she did not record the meeting as a whole or else she did record the meeting but it did not contain - when she listened back - things that she felt supported her argument to have made a protected disclosure.[327]In any event, if the suggestion is that Mr Berry may have arranged pricing in a way that disadvantaged her and that she said this on 20 July 2023 then my finding is that that would not be a protected disclosure in any event. It would not be reasonable to regard that as information which tended to show breach of a legal obligation. I am not satisfied that, even if she had made such alleged comments, that she would have actually believed that she was making a disclosure that was in the public interest; it would not be reasonable to regard that as being a disclosure that was in the public interest as, on this – somewhat vague - hypothesis, the only person adversely affected by Mr Berry’s actions would have been the Claimant.[328]In fact, I am not satisfied that the Claimant actually made allegations about pricing at all in the meeting. In paragraph 33 of her witness statement she says that she 75 of 118 was concerned that Mark Berry was price fixing and she also says that her opinion is that this breaks legislation around pricing. However she does not specifically say that she raised this with Mr Fredriksson on 20 July[329]I accept that Ms Weigand's recollection that it was not raised is accurate. That is consistent with the emails which Mr Fredriksson sent at the time [Bundle 268 and 267] which show that his perception was that the Claimant was complaining about what she was being allowed to add to her pipeline rather than pricing.[330]Paragraph 41e of Particulars of Complaint alleges that there was a protected disclosure to Mr Fredriksson on 28 September 2023. That is a reference to the email at 3pm that day (copied to Alison Campbell) with subject line “notification of sickness absence” which stated [Bundle 333]: I am writing to inform you that due to the serious ongoing issues I am having at work, including my outstanding grievance and the recent whistle blowing complaint I have made against my line managers behavior, I am very concerned how this is having a negative impact on my mental and physical health and my ability to carry out my work effectively. I am therefore, writing to inform you that I will be taking sick leave for work related stress, until further notice. If you could kindly ask someone to cover the RFI for IAG/BA in my absence.[331]I note that the Claimant claims to have made a protected disclosure in an email to Alison Campbell. Paragraph 41d of the Particulars of Complaint gives a date of 28 September 2023 for this. 332. [Bundle 331] is the document which the Claimant relies on. It read: I am not sure who in the business I should speak to, however, I have growing concerns regarding my managers unethical behaviors at work. As you are aware, I have an outstanding grievance against my manager for bullying and unfair business practices. However, it has since come to my attention that my manager is acting unethically in regards to his business interactions with a high profile customer, that happens to be one of my customers. I have witnessed his concerning behaviors which breaches the Honeywell code of conduct and I am concerned that he is carrying out unethical business practices. I would like to be able to discuss my concerns in a confidential manner, as you can appreciate this is a very stressful situation.[333]Thus, the Claimant referred to unethical practices. She did not specify any particular legal obligation or give specific details of what he was alleged to have done, but she did specify that as well as being unethical Mr Berry was acting in a way that would breach the code of conduct.[334]Based on the totality of the evidence, including [Bundle 334], I am satisfied that the Claimant had not made any alleged oral disclosures to Ms Campbell by 6 October. Her email that day came after correspondence including the Claimant’s email of the 4 October [Bundle 337], in which the Claimant stated that she was considering 76 of 118 taking legal proceedings against the Respondents and which also said that she had contacted ACAS. This is one of a number of emails in the bundle that are marked without prejudice but the parties confirmed on Day 1 of the final hearing that they both waived any privilege over the parts of these items that were not redacted.[335]As per [Bundle 345], Ms Campbell proposed that she and the Claimant have a phone discussion. She asked for availability “after 3pm on Wednesday 11th October 2023”. There was a firm arrangement for a video call at 4pm on 12 October (and was to be with a note taker too). As per [Bundle 355], the Claimant cancelled that proposed discussion.[336]In paragraph 41f of the Particulars of Complaint, the Claimant alleges that she made one or more protected disclosures in a phone discussion with Alison Campbell on 11 October. This is not a conversation mentioned in her written witness statement.[337]Based on the totality of the evidence, including the contemporaneous emails, I am not satisfied hat the Claimant did have a telephone conversation on 11 October 2023 with Alison Campbell. On the balance of probabilities, the request for availability “after 3pm on Wednesday 11th October 2023” led to the arrangement for a video call on 12 October, without an intervening phone call. If I am wrong about that, and they did speak on 11 October, the Claimant has failed to prove what was said. She had earlier started making audio recordings and taking photographs with a view to using them in later litigation, and she had referred to litigation around a week before 11 October, but she has not produced any contemporaneous evidence of what she claims to have said on 11 October. Even taking into account that the Claimant had some sickness absence in October 2023, there is insufficient evidence for me to decide that she did say the things are alleged in paragraph 41f of Particulars of Complaint.[338]In terms of an allegation about football tickets, the notes of the 2 November 2023 meeting about her grievance appeal showed that she raised this point then. The notes do not say that she had previously raised it but rather the section is headed “new information” [Bundle 386]. Although the Claimant made extensive tracked changes to the document she did not change that segment. What the Claimant describes there is her own opinion that had been an improper conversation between Mr Berry and an engineer. She does not suggest that Mr Berry told the engineer that he would get football tickets in return for some favour from the engineer. She also does not suggest that she had raised the matter with Mr Berry or anybody else at the time.[339]Paragraph 41g of Particulars of Complaint reads, in full: On 2nd November 2023, at my grievance appeal hearing meeting I advised the team which included Audrey McNalley - Senior HR Advisor and Kate Tuson - Director of 77 of 118 Sales (from another part of the business) details of my whistleblowing complaints, which was detailed in their meeting notes and sent to me via email on the 4th December 2023.[340]The Claimant also suggests that there was a protected disclosure on 17 January 2024 (paragraph 41h of Particulars of Complaint). She alleges that she gave more information about whistle blowing on that date. This is a reference to the meeting with Mariana Granados for which the notes are at [Bundle 498].340.1 As well as suggesting that the football tickets were going to be purchased in an attempt to influence the customer, she also said that Mr Berry’s actions when giving quotes to partners amounted to what she described as “price fixing”.340.2 She said that she believed this was a breach of competition law.340.3 Without giving a date, she also said that Mr Beckley had said that he knew the Respondent was following an incorrect practice. The Claimant does not give details of what she allegedly disclosed to Mr Beckley. I am satisfied that details of such a conversation between the Claimant and Mr Beckley did not come to the attention of Mr Berry.[341]Although not relevant to any decisions I have to make about whether the Claimant made a protected disclosure, I state for completeness that I accept the account given by Mr Berry to the Respondent and to the employment tribunal. As far as he was concerned, prices are transparent because they are recorded on Salesforce. It is not necessarily the case that the same price will be quoted to every partner. Rather the intended partner for a particular transaction will be identified and a price given to that particular partner. Only if the customer requests it will prices be given to other partners as well.[342]On around 17 August 2023, Mr Fredriksson restarted the informal stage of the performance improvement plan (PIP). He issued the document which appears at [Bundle 363]. The intention was that the period for this informal stage would be four weeks, so until around 14 September 2023.[343]I accept that Mr Fredriksson met the Claimant on 21 August and 24 August as shown on [Bundle 364]. As he acknowledges, and as the Claimant points out, the notes of these meeting were not sent to her at the time. I accept Mr Fredriksson’s explanation that he did not think that he needed to send notes to the Claimant after each meeting. It was his genuine opinion that it was the Claimant’s responsibility to make her own notes of these discussions. Furthermore, and in any event, he had sent her the PIP document and he believed that the required targets were already clear to her. 78 of 118[344]On 6 September 2023, there was an event in Newark. The Claimant took the train to the event. Her train was late. Then, at the train station, she was unable to get a taxi to the event and therefore walked to it.[345]Mr Berry was not happy that the Claimant arrived around an hour and a half late, as the event was drawing to a conclusion. He let her know that he was not happy.[346]Mr Berry’s reasons for not leaving the event to collect the Claimant from the train station (and not asking a colleague to do it) were that it was his opinion that it was more important for him and his colleagues to remain at the event[347]The following day, the Claimant sent an email to Mr Berry and to Ms Weigand - but not to Mr Fredriksson - to say that she was not well enough for work. In the email she claimed that the reason she had taken the train rather than driving was that she had not slept well the night before. In the email she describes her walk the previous day as having been a distance of 1.5 miles and having taken 40 minutes in extreme heat. She referred to menopause. This was the first time she had mentioned that to Mr Berry (though it had been referred to in her grievance submissions). She acknowledged in the email that Mr Berry was not aware of her menopause symptoms.[348]Mr Berry forwarded the email to Mr Fredriksson and to Ms Weigand (without copying in the Claimant). He supplied them with his own comments. He said he was stunned by the email. He gave his account of the previous day. I accept that he wrote what he believed to be accurate at the time. He had received a text from the Claimant at 6:44am stating that she was getting the train because of tiredness. In his email, he said he wanted nothing more to do with the Claimant. He said she was not performing and he said he regarded her comments as a personal attack. He commented on the grievance and said there was no evidence for it. He said the performance management was proceeding at a slow pace. He asked to speak to both of them the same day.[349]Mr Fredriksson met the Claimant again on the 11 September, 14 September and the 25 September. Mr Fredriksson’s very brief notes (not sent to the Claimant at the time) are [Bundle 364 and 365].[350]On 25 September, the Claimant was notified that this was intended to be the last week of the PIP. The end of the PIP was not brought forward as a result of anything which occurred on the 6 or 7 of September, at all. On the contrary, on 17 August the plan had been for it to conclude around 14 September, but it carried on after that intended end date. As of 25 September, the plan was for there to be a further meeting on the 29 September. That did not take place because the Claimant was off sick.[351]As of 19 September 2023, it was Mr Fredriksson’s opinion that, when the informal phase of the PIP came to an end, they would enter the formal stage of the 79 of 118 performance management procedure. His email on [Bundle 323] attached – for Ms Weigand’s comments - a draft document which was not ultimately sent to the Claimant but which stated that (because of the Claimant's absence during the PIP, there had been an extension to 22 September and) there would be a formal meeting to discuss performance.[352]As mentioned above, the Claimant was off sick during October. That absence began when the Claimant wrote to Mr Fredriksson [Bundle 333] to say that she would be off sick until further notice. He acknowledged that email the following day.[353]On 6 October 2023, Mr Fredriksson wrote to Ms Weigand [Bundle 352].353.1 He sent an attachment which he had printed from the Respondent’s Salesforce system. His genuine opinion was that Salesforce was supposed to include an accurate record of contact made with customers.353.2 From time to time, Mr Fredriksson checked to see whether the sales people were actually accurately completing Salesforce. Contact with customers was - in his opinion - an important part of the role; they were employed to do it, and it was important that they do it.353.3 On the balance of probabilities, at least part of his reason for checking the Claimant’s Salesforce record at this particular time was in connection with the PIP. He comments on the PIP in his email and it is likely to have been fresh in his mind. In particular he commented on what the Claimant was supposed to be doing if she was following the plan in the PIP.353.4 He made two comments. Firstly, he stated that he believed the Claimant was faking information; in other words, that she was having Salesforce show that she was carrying out meetings which were not actually taking place. Secondly, he stated that she was far from her PIP targets.[354]The Claimant's last day of absence was 20 October 2023, Her return to work meeting notes are [Bundle 377], and the meeting was 30 October 2023. Mr Fredriksson was aware of that meeting. His electronic signature has been appended to the notes.[355]On 7 November, a handover call took place attended by Mr Fredriksson and Mr Berry and the Claimant[356]The Claimant alleges that she was improperly told that she would not be receiving one of her accounts back, after the sickness absence, because a colleague had worked on it. The allegation is somewhat vague. The Respondent’s position is that it was still her account, but, in her absence, one of her colleagues had conducted a meeting and his records of that meeting showed on Salesforce. Mr Berry's explanation - during oral evidence in Employment Tribunal - was that that 80 of 118 could have been manually corrected in due course to show whatever accurate information was required, but, in fact, the colleague’s contact with the Claimant’s client had not turned into an actual transaction and - therefore - there was no new pipeline in any event, and so the issue of whether the Claimant or her colleague would be credited for it never arose.[357]My finding is that the Claimant was not told during the call that she was permanently losing this account. There are no contemporaneous written records about exactly what was said, but this meeting was following a period of sickness absence. On the balance of probabilities, she was told that her colleague would take any immediate follow up action following the work which he had done during her sickness absence. Whether or not that would have led to a permanent transfer of the account at some future date is a matter of speculation, given that her employment ended not long afterwards, but no decision to permanently transfer the client had been made, and the Claimant was not told that such a decision had been made.[358]The Claimant followed it up with HR. HR's view was that the Claimant would keep that account. In any event in terms of any opportunities generated from that Wincanton account, this would not have made a difference to the performance figures as per the PIP because no business was generated from it.[359]Mr Fredriksson attempted to meet the Claimant on the 8 November and 11 November but she declined those meetings. There was a meeting on 13 November. Mr Fredriksson answered the questions which the Claimant had. The Claimant’s reasons for declining the earlier meetings were that she felt it would adversely affect her mental health. Mr Fredriksson did not treat 13 November as a PIP meeting but rather as a meeting to provide support to the Claimant.[360]Ms Weigand met the Claimant on 8 November. Amongst other things occupational health was discussed. The Claimant wanted to know if it was mandatory but if it was voluntary she wanted to have additional information before agreeing. On 10 November, Ms Weigand shared her meeting notes [Bundle 428].[361]Ms Weigand chased for the Claimant’s agreement to an occupational health referral. On 16 November, the Claimant said she would rather wait until after the grievance appeal There was an exchange of emails in which Ms Weigand attempted to persuade the Claimant to agree to the occupational health referral but the Claimant was adamant about wishing to put it on hold. The Claimant said that the support she needed was for her grievance appeal to be dealt with (and by implication she meant upheld, but that is a separate point).[362]On 21 November, the Claimant said that she had spoken to occupational health and had booked in an appointment for the following week. 81 of 118[363]The Claimant was notified [Bundle 431] of a meeting to take place on 22 November 2023. The subject was mandatory investigatory meeting. It was made clear that the meeting organiser was Mr Fredriksson, and that the Claimant was required to attend. Ms Weigand sent the invitation. She stated that there was a need to speak to the Claimant regarding her activity in Salesforce. The brief email said that the Claimant was allowed to be accompanied but did not give her specific details of the matters to be discussed[364]A slightly more detailed email is at [Bundle 454] and was sent on 21 November: Meeting Purpose: It has come to our attention that there are discrepancies in your activity tracking in SFDC and reported travel This is an investigatory meeting o To make you aware of the allegations and the potential misconduct o To gain information o To ask you for your explanation on the allegations raised The outcome of this meeting could be a disciplinary meeting which would be held by an impartial manager, and could potentially be followed by disciplinary actions[365]Ms Weigand’s notes of the meeting are [Bundle 452]. They are fairly contemporaneous and reasonably reliable but they do not purport to be verbatim. They were not sent to the Claimant.[366]It was noted that the Claimant expressed the opinion that the Wincanton account had been permanently given to her colleague. As far as Mr Fredriksson was concerned that was definitely not true and he told the Claimant that during the meeting.[367]After the meeting [Bundle 432] at 10am, Mr Fredriksson wrote: It was a straightforward and, in some parts, difficult meeting but we expect all a positive outcome. I would recommend that you after the call we just had that you cancel your attendance at the distributor and instead stay at office (home?) and ensure you SFDC is 100% up to date during the day. Looking forward to seeing that progress tomorrow? (If you like I can reach out to Andy to let him know you will not participate?)[368]He was telling her that she should cancel her attendance at a distributor meeting that was scheduled that day and, instead, remain working from home and correct Salesforce so that it was 100% accurate by the end of that day. He was offering to contact the meeting organiser on her behalf to let them know that the Claimant was not coming. 82 of 118[369]The Claimant replied to Ms Weigand at 12:34 without copying in Mr Fredriksson. She marked her email “without prejudice”. She asked for confirmation that there would be no disciplinary proceedings. She said she was finding the work environment extremely dysfunctional and she would like to discuss a possible exit strategy in the form of a settlement agreement. She stated that she was suffering post traumatic stress disorder. She asked for Ms Weigand to arrange a call to discuss settlement[370]The following day, at 7:16am, the Claimant sent an email to Ms Weigand (not marked without prejudice). It alleged that Ms Weigand and Mr Fredriksson had used incorrect information the previous day to falsely accuse the Claimant of deliberately putting false data into the system. She also referred to her harassment and discrimination and bullying allegations. She also referred to what she said was delays in providing a fair and timely hearing regarding her outstanding grievance appeal. She also referred to her mental health. She said that she was serving notice to end her employment. She said that she did not have another job to go to and was only serving notice because the working environment was so hostile that it was no longer safe environment for her and it was impossible for her to continue in her role in those circumstances.[371]At 07.25 [Bundle 460] she added Please note I intend to carry out my duties and work my 2 months' notice period as required.[372]The same morning, Ms Weigand acknowledged the resignation. She said that she would respond to the Claimant on the other topics in due course. In the afternoon Ms Weigand asked for clarification of the last day of employment. Ms Weigand referred to 8 weeks’ contractual notice and said she calculated that to be 17 January 2024 and asked if the Claimant agreed.[373]At 16.34, the Claimant replied to say that her notice was 2 calendar months rather than 8 weeks and that she intended to work that notice.[374]They corresponded back and forth about the end date. Ms Weigand was sticking to her position that the notice would expire in eight weeks time and the Claimant that it would be in two months time.[375]After several emails, the following day (Friday), the Claimant wrote [Bundle 462] I do not understand why you keep asking me the same question over multiple emails (see below email chain)? I would expect the business to confirm the date, not myself.[376]The next day, Saturday 25 November, 7.29am, the Claimant wrote to Ms Weigand and Alison Campbell stating that she wanted to retract her resignation. She 83 of 118 specified again in the subject line that it was without prejudice. This is not a phrase that was used in the actual resignation email itself.[377]The Claimant sent a reminder at 15:45 on Monday 27 November 2023.[378]At 17:28 that day [Bundle 469], Ms Weigand sent an email refusing to agree to the withdrawal of the Claimant’s resignation. The email said the employer’s position was that the contractual notice would expire on 25 January 2024. It said that the Claimant had asked about an exit strategy and it set out the Respondent’s position on that which included making a payment in lieu of notice or alternatively agreeing garden leave. It commented on the other points in the Claimant’s resignation email stating amongst other things that the Respondent denied that false information had been given to the Claimant in the investigatory meeting and disputed that the grievance process had taken too long in the circumstances and asserting that the grievance appeal outcome letter would be sent shortly.[379]Ms Weigand also asked whether the Claimant would like Ms Weigand to forward the Claimant’s email to the data access team.[380]My finding is that the Respondent’s decision to refuse to accept the Claimant’s offer to retract her resignation was a decision which was made on behalf of the Respondent by Mr Fredriksson, having taken advice from HR on the matter.[381]Subsequently, on 28 November, the Claimant wrote Ms Weigand to say that she had attended the occupational health appointment and she had ended it early based on her opinion that she had been told that the report would be sent to the Respondent regardless of whether the Claimant objected or not. The Claimant says she was told by occupational health provider that they would always send it to the Respondent after 48 hours and also said that this was inconsistent with what Ms Weigand had said.[382]On that point, my finding is that what Ms Weigand had said to the Claimant was exactly what Ms Weigand believed to be true, namely that a copy of the report would be sent to the employee in the first instance and that if the employee objected to the report being forwarded onto the employer then the occupational health provider would not disclose it to the employer.[383]In any event Ms Weigand did ask the provider to comment and the customer service advisor who replied suggested that the consultation had not got very far and so the consent option had not even been formally discussed by the time the Claimant ended the call. [Bundle 475] Analysis and conclusions[384]I have already set out my decisions on the disability issue above. 84 of 118[385]For time limits, I have already stated the relevant dates, taking into account the early conciliation provisions, the second claim form, and the Respondent’s comments at the preliminary hearing.[386]So I now turn to section 3 of list of issues, which deals with harassment.[387]Section 3.1 is harassment related to disability. My decision was that the Claimant was not a disabled person (within the EQA definition) at any relevant time. None of Ms Weigand, Mr Fredriksson or Mr Berry thought that she was a disabled person at any relevant time. So these allegations fail for those reasons. For completeness, I make the following additional comments. Allegations 3.1.1 to 3.1.3[388]The first three alleged acts, 3.1.1 to 3.1.3, all relate to the meeting in Manchester. (As stated in the findings of fact, it was Manchester rather than Leeds.)[389]This was a meeting which the Claimant did not attend.[390]Although she raised it in her grievance, even the 12 July and 2 August documents were already more than three months after the alleged events.[391]Memories have faded by the time of the Employment Tribunal hearing. Indeed, they had faded by the time of the grievance. The Claimant could not even recall the city to which she had been told to travel to meet Mr Fredriksson. There was a suggestion by the Claimant that the Respondent should have just held a video meeting rather than told her to come to meet Mr Fredriksson face to face; however, it was clear to me that none of Mr Berry, Mr Fredriksson or the Claimant could actually remember if that was discussed at the time or not.[392]In this instance, I do not regard this as being part of any continuing act. It was a specific one off request (for the whole team, not just the Claimant) to come to meet Mr Fredriksson at a particular location. It did not include any requirement to stay overnight.[393]The incident is outside the primary time limit. The time limit expired around 9 June, and it was more than 6 months after that before the Claimant started early conciliation. The claim form itself was presented more than 7 months after the time limit expired. The claim form was presented around 10 months after the incident itself.393.1 Although the Claimant had some time off work, my finding is that ill-health did not prevent her from submitting a claim / commencing early conciliation in the period from 10 March 2023 to 9 June 2023 (or promptly after the end of that period). 85 of 118393.2 Further, she was aware of the correct process, having submitted an Employment Tribunal claim against a previous employer.393.3 The fact that a person does not have a good reason for missing a time limit is not fatal to an application to extend time on just and equitable grounds, but assessment of whether there is a good reason is a relevant consideration.393.4 In this case, the Claimant did not have a good reason.[394]The Respondent has suffered prejudice as a result of the delay. Part of the claim relies on specific recollection of each of the Claimant and Mr Berry about oral conversations which were not recorded in writing at the time. (As I have said, I do not accept that the “Diary of Bullying at Work Incidents” was produced contemporaneously.)[395]Part of the Claimant’s contract required her to travel, which was why there was a car allowance and a provision for her to claim expenses. This was a fairly routine request/instruction as far as Mr Berry and Mr Fredriksson were concerned. It was not an instruction issued to the Claimant specifically, but rather was for the whole team. It was not particularly memorable as far as they were concerned.[396]I find that the Claimant’s assertions about having been “ridiculed” are vague. The allegation about “Leeds” rather than “Manchester” shows that the Claimant’s own recollection is not reliable, let alone that of Mr Berry or Mr Fredriksson.[397]As against the prejudice to the Respondent if time is extended, the prejudice to the Claimant if it is not extended is comparatively small. She was not – for example – disciplined for not attending the meeting. She was told she had to go to a meeting, and she did not go to it; she did not – for example – have the burden of actually travelling to the meeting.[398]The balance of prejudice is in favour of declining to exercise my discretion to extend time for these 3 alleged acts (paragraphs 3.1.1, 3.1.2 and 3.1.3 of list of issues) and I do not do so. They are out of time. Allegations 3.1.4 to 3.1.7[399]The next four alleged acts, 3.1.4 to 3.1.7, all relate to the event in Newark.[400]I do not find that these are part of a continuing act. They relate to alleged wrongdoing by Mr Berry. Since July, he had not been her the Claimant’s line manager (on an interim basis, because of the grievance). The later allegations relate to treatment by Mr Fredriksson and/or Ms Weigand. The Newark event was a specific individual occasion which did not require an overnight stay. 86 of 118[401]The primary time limit expired around 5 December 2023. The Claimant submitted the claim at the end of January, so slightly less than two months out of time, having commenced early conciliation slightly less than one month after the expiry of the time limit.401.1 Although the Claimant had some time off work in October due to illness, she was back by the end of October, and worked during November. My finding is that ill-health did not prevent her from submitting a claim / commencing early conciliation in the period from 6 September 2023 to 5 December.401.2 Further, she was aware of the correct process, having submitted an Employment Tribunal claim against a previous employer.401.3 The fact that a person does not have a good reason for missing a time limit is not fatal to an application to extend time on just and equitable grounds, but assessment of whether there is a good reason is a relevant consideration.401.4 In this case, the Claimant did not have a good reason.401.5 She resigned (an alleged constructive dismissal) on 23 November, then asked to retract the resignation, and had that offer rejected on 27 November. Had she commenced early conciliation promptly after 27 November, she would have been in time for this set of allegations.401.6 Also the grievance outcome and grievance appeal outcome were sent to her within this time limit (albeit the appeal outcome, sent 4 December 2023, was very close to the end).401.7 On 4 October 2023, the Claimant had said that she was considering litigation, and “I have contacted ACAS and will be requesting their support through their early conciliation process.” She had two months after that to start the process and still be in time for this set of allegations, but did not start early conciliation until almost three months after this comment.[402]There is prejudice to the Respondent because this set of allegations (3.1.4 to 3.1.7) depend heavily on recollections of oral communications, albeit, in this case, the Claimant did complain promptly (the following day).[403]The Claimant did raise the matter promptly (the following day) and, within a month, in early October, had informed the Respondent of the possibility of litigation, and had referred to starting early conciliation (albeit she did not actually do so until January.) 87 of 118[404]In any event, regardless of time limits, and regardless of my decisions about disability, these allegations fail on the merits.[405]The Claimant asserts that Mr Berry said “this is why we pay car allowance”. He does not recall making that remark, and it was not referred to in the Claimant’s email of 7 September. I accept he is telling the truth when he says he does not recall saying that. I also accept that such a comment – if made – might be more memorable to the Claimant than to Mr Berry.405.1 In terms of whether such a comment (if made) had the purpose of the purpose of(a) violating Claimant's dignity or(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant, there are no facts from which I could conclude that.405.2 If said at all – as the Claimant alleges – then it would have been the expression of an opinion that car allowance was paid to assist employees to arrive on time at events/meetings. It is common ground that Mr Berry was annoyed at the Claimant’s lateness. While I accept that a particular act can have more than one purpose, it seems clear that the main purpose of the remark – if made – was to express the opinion that the Claimant could have used the car, and thereby avoided the train delays / lack of taxis. I am not persuaded that there was any secondary purpose to violate her dignity or create an intimidating (etc) environment. The words used in section 26(1)(b) are deliberately chosen as strong words. A simple intention to make the Claimant feel as though she had done something wrong would not be enough. Regardless of the exact words used by Mr Berry, it is clear that he was not happy with the Claimant’s lateness and that he wanted her to know that he thought she ought to have been on time. However, I am not satisfied that the “purpose” of what he said went further than that.405.3 In terms of whether such a comment (if made) had the purpose of the effect of (a) violating Claimant's dignity or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant, my decision is that it would not be reasonable to treat these alleged words (even in conjunction with the other things said that day, or on previous occasions such as in relation to PKO or Manchester) as having that effect.405.4 In making decisions about the “effect” of unwanted conduct, section 26(4) requires me to take into account, not just the Claimant’s perception but also “the other circumstances of the case” and “whether it is reasonable for the conduct to have that effect”.405.5 The relevant circumstances do include previous interactions between the Claimant and Mr Berry. On the day itself, the relevant circumstances 88 of 118 include the fact that the Claimant was very late to the meeting. She had not arranged for a taxi to be waiting for her at the station, and had not realised that it might be difficult to find a taxi after she got off the train. Mr Berry was unaware of any disability issues; he had simply been told by the Claimant that she would be getting the train because she had not slept well.405.6 The relevant circumstances include that the Claimant’s perception was that the comment was rude and/or unsympathetic. Her perception was that he was angry or frustrated by her account of the reasons for her lateness.405.7 I note that the Claimant was off work the next day. However, as stated in her email, that was because of exhaustion from the 1.5 mile walk, not because she was too upset to work because Mr Berry had said (on her case) “this is why we pay car allowance”.405.8 My decision is that it would not be reasonable for an employee who was 1.5 hours late to a meeting, and who blamed train delays / taxi problems for that lateness, to regard their dignity as having been violated, or a intimidating, hostile, degrading, humiliating or offensive environment as having been created, by a manager’s comments to the effect of (and I paraphrase) “then you should have driven”. It is a normal feature of the life of an employee that they are expected by their employer to be on time for work and that they may face some criticism if they are late. It is a normal feature of the life of an employee that, if they are late, they are expected to account for that lateness and that – some of the time – the employer might indicate that they do not think the explanation is an adequate one.405.9 I do take into account that, in the Claimant’s opinion, Mr Berry had already treated her so badly that she had needed to bring a grievance, and that the Respondent had needed to replace him with someone else (on an interim basis) as her line manager. I also take into account that she strongly believes that he ought to have treated her explanation as satisfactory.405.10 However, in all the circumstances, it would be cheapening the words of section 26 EQA to treat this conduct as having had the forbidden effect.[406]Thus allegation 3.1.4 fails on the merits, regardless of time limits and regardless[407]The Claimant alleges that, on 6 September 2023, Mark Berry kept texting to ask the Claimant where she was. 89 of 118407.1 I have not seen these messages. However, on the evidence available to me, I accept on the balance of probabilities that he did send text messages to her. I do not accept that his purpose was anything other than a genuine attempt to obtain updates from her about her expected time of arrival. There are no facts from which I could conclude that Mr Berry’s purpose was to(a) violate the Claimant's dignity or(b) create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant.407.2 In terms of “effect”, I will not repeat everything I already said about the tests I must apply. I have to bear in mind previous interactions between the Claimant and Mr Berry, not just the fact that, on 6 September 2023, he sent text messages to ask where she was.407.3 On the day itself, the relevant circumstances include the fact that the Claimant was very late to the meeting. My decision is that it would not be reasonable for an employee who was 1.5 hours late to a meeting, and who blamed train delays / taxi problems for that lateness to regard their dignity as having been violated, or a intimidating, hostile, degrading, humiliating or offensive environment as having been created, by a manager’s comments to the effect of (and I paraphrase) “how long until you get here” and/or by requests for updates. It is a normal feature of the life of an employee that, if they are late, they are expected to account for that lateness and – in particular – prior to arrival, they may be expected to keep the employer informed as to progress.407.4 In all the circumstances, it would be cheapening the words of section 26 EQA to treat this conduct as having had the forbidden effect.[408]Thus allegation 3.1.5 fails on the merits, regardless of time limits and regardless[409]The Claimant alleges that, on 6 September 2023, Mark Berry “required the Claimant to walk in the heat”.409.1 This allegation fails on the facts. He did not impose that requirement on the Claimant. It had been his expectation that she would drive to the event. It was her decision that she travel by train instead.409.2 The reason that she had to walk from the train station to the location was that she had not successfully arranged any alternative means of transport (such as taxi). She had not asked Mr Berry to arrange a taxi for her, and nor had he refused to arrange it, or to allow her to use a taxi.409.3 It is true that he did not offer to leave the event to come to collect her. However, that was because he thought he should remain at the event, not because he wanted to force the Claimant to have to walk and not because 90 of 118 his purpose was to violate her dignity or create a hostile (etc) environment for her.409.4 In all the circumstances, it would not be reasonable for an employee who failed to arrange taxi or public transport from train station to venue, to regard the fact that their manager did not arrange transport for them as having had the effect forbidden by section 26(1)(b) EQA.[410]Thus allegation 3.1.6 fails on the merits, regardless of time limits and regardless[411]The Claimant alleges that, when the Claimant arrived on 6 September 2023, Mark Berry said that everyone is in there, and she should hurry up and join them.411.1 From the totality of the evidence, it is clear that Mr Berry had wanted the Claimant to arrive much earlier than she did, and the fact that he said something to the effect of “hurry up and join them” was because that is what he thought she should do. His purpose was not to violate her dignity, etc.411.2 In terms of “effect”, an employee who is late should expect that, on arrival, their employer will expect them to start their duties promptly.411.3 In all the circumstances, it would be cheapening the words of section 26 EQA to treat this conduct as having had the forbidden effect.[412]Thus allegation 3.1.6 fails on the merits, regardless of time limits and regardless Allegation 3.1.8[413]I will stick to the order in list of issues, although chronologically this is out of sequence. Paragraph 3.1.8 of list of issues is that it was disability-related harassment that the Respondent refused to allow the Claimant to retract her resignation.[414]In addition, or in the alternative, the Claimant alleges that the same conduct was disability discrimination. She alleges that her resignation was “something” arising in consequence of her disability and that the refusal to allow her to retract the resignation was treating her unfavourably because of that “something”.[415]These two complaints are each in time. Disability discrimination[416]The complaint of disability discrimination (within the definition in section 15 EQA) fails because of my decision that the Claimant did not have a disability. She has 91 of 118 not met the requirements of section 15(1)(a) EQA for that reason, regardless of what caused the alleged unfavourable treatment, and it is therefore not necessary to address either section 15(1)(b) or section 15(2) EQA.[417]However, even if I had decided that the Claimant had a disability (and that the disability caused her to submit a resignation), this complaint would have failed on causation. It was not the fact that the Claimant had submitted a resignation that caused Mr Fredriksson to decide to reject her offer to retract it. He took HR advice, and he decided that refusing to allow the Claimant to retract the resignation was the correct decision in all the circumstances. I accept that his reasons were those set out in paragraph 18 of his witness statement. Harassment[418]Since the Claimant was not disabled and Mr Fredriksson did not perceive her as having a disability, the conduct in question was not related to disability.[419]In addition, I am satisfied that Mr Fredriksson’s reasons for deciding not to agree to the Claimant’s request/offer to retract her resignation were those set out in paragraph 18 of his witness statement and no part of his purpose was(a) violating the Claimant's dignity or(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant.[420]In terms of effect, a resignation from an employment contract is a common place event. The Claimant is a commercially minded person. She works in sales at a high level, and has more than 30 years experience. She knows that in negotiations there can be offers which only lead to contracts if there is acceptance. She knows that negotiations do not always go the way that one person wants them to go. She obviously would have preferred if the Respondent had entered into an agreement with her such that it allowed her to retract the resignation. However, in all the circumstances, including the circumstances which led her to submit the resignation email, and all her past dealings with the Respondent, it would not be reasonable to treat the employer’s refusal as having the effect of(a) violating the Claimant's dignity or(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant.[421]Thus, the harassment complaint fails for that additional reason. Allegations 3.1.9 and 3.1.10[422]These relate to the meeting on 22 November 2023 and complain respectively about(i) the timing of the meeting and(ii) the content of the meeting.[423]Since the Claimant was not disabled and Mr Fredriksson did not perceive her as having a disability, the conduct in question was not related to disability. 92 of 118[424]In terms of the timing of the meeting, it was entirely reasonable to wait two or three weeks after the Claimant’s return from sickness absence to ask her about the matters (Salesforce entries) that had come to Mr Fredriksson’s attention during the absence.424.1 To the extent that the Claimant alleges that Mr Fredriksson’s purpose, in not holding the meeting earlier, was to(a) violate her dignity or(b) create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant, I reject that. He had sought meetings with her (about other matters) earlier in November which she had declined, and then had a support meeting with her. His purpose in not having this meeting sooner was to ensure that other matters had been dealt with first.424.2 For completeness, it was an investigation meeting, not a disciplinary meeting, and were it to be suggested that Mr Fredriksson’s purpose, in not holding the meeting later, was (a) violate her dignity or (b) create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant, I would reject that also.[425]The purpose of the meeting was exactly that which the Claimant was told about before and during the meeting. Mr Fredriksson wanted to have her account about what was on Salesforce and to find out if she had, in fact, had the amount of customer contact that the Salesforce entries seemed to imply.[426]The Claimant’s account to Mr Fredriksson was:426.1 Firstly, she did not think that she was necessarily doing anything wrong, based on what she said she had been told in the past.426.2 Secondly, she also thought that there some software problems that might have impacted the accuracy of the entries.426.3 Thirdly, she asserted that she did not regard it as necessary to – in all cases – physically travel to the premises of the potential customer whose business she was seeking to obtain / renew.[427]The purpose of the meeting was that it was an “investigatory” meeting not a “disciplinary” meeting, and – when considering the effect of the conduct – it is relevant to take into account that the Claimant was told that, and she knew that. (Her email to Ms Weigand after the meeting [Bundle 432] showed that she understood the distinction).[428]Even to the extent that the Claimant regarded the Salesforce information as generally “ok” and compliant with the Respondent’s requirements, she did accept that there were some inaccuracies (albeit she regarded them as a software issue and not her fault). 93 of 118[429]In all the circumstances, it would not be reasonable to treat either the timing or the content of the meeting as having the forbidden effect. Any investigation meeting will be unwanted conduct from the employee’s perspective, but it would be cheapening the words of section 26 to regard the mere fact alone of being obliged to participate in such a meeting as having the forbidden effect. The meeting was conducted courteously and professionally and the immediate aftermath of the meeting was that the Claimant was asked to “correct” Salesforce so that the entries matched the criteria explained by Mr Fredriksson in the meeting. The Claimant was given the chance to explain her point of view at the investigation stage and the fact that the Respondent decided to have an investigation stage (as opposed to dealing with the matter entirely informally and then accepting the Claimant’s explanation without more ado) cannot reasonably be said to be have violated her dignity or created an intimidating (etc) environment for her, even taking account of all the employee’s and employer’s prior dealings.[430]Allegations 3.1.9 and 3.1.10 therefore fail for these additional reasons.[431]The next section of list of issues is age related harassment, paragraph 3.2. Allegation 3.2.1: Showing the Claimant at the bottom of a table of sales figures by comparison with younger colleagues.[432]It is open to interpretation whether the Claimant was shown at the bottom. She has not been particularly clear about which exact items she has in mind. There were some tables in the hearing bundle in which she was not literally at the bottom in that her name was on a row and other names were on rows below that. In some such tables, it would be up to the viewer to decide whether they perceived the Claimant as figuratively at the “bottom” if the table showed that her performance was “worse” (in some way) than that of all of the other employees.[433]I do accept – taking into account what Ms Phillps said in grievance meeting, and Mr Berry’s answers in cross-examination – that Mr Berry did sometimes circulate tables in which the rows were ordered from “best” to “worst” and I do accept that, in at least some of those tables, the Claimant’s name was on the bottom row.[434]I find that Mr Berry’s intention when circulating the tables was to generate competition between the Enterprise Account Managers. As he saw it, he wanted them all to do as well as they possibly could and he wanted those near the bottom of the tables to want to move up the tables, and those near the top of the tables to want to avoid being overtaken.[435]There are no facts from which I could conclude that any part of Mr Berry’s purpose was to violate the Claimant’s dignity, etc. He simply carried on with a practice that he had used since before the Claimant became an employee. 94 of 118[436]Regardless of the effect on the Claimant, there are no facts from which I could conclude that Mr Berry’s conduct was in any way connected to the Claimant’s age (or anyone else’s age). He carried on with a practice that he had used since before the Claimant became an employee. The Claimant has not satisfied me that there is any plausible connection between the production/circulation of the tables and anyone’s age. I have no opinion on whether it was “normal” within the industry for the sales team’s figures to be put into a table and circulated for the whole team to see, but I am satisfied both(i) that Mr Berry regarded it as “normal” and(ii) that the worker’s age did not influence the entries in the table, and Mr Berry only wrote entries that he thought accurately matched the data available to him.[437]This allegation fails: Allegation 3.2.2: 7 July 2023, Mark Berry holding meeting with the Claimant, attended by HR, and making accusations[438]It is true that there was a meeting that day, as set out in findings of fact.[439]The word “accusations” can reasonably be used to describe what Mr Berry said to the Claimant about her alleged conduct in the days immediately prior to the meeting. The suggestion was that the Claimant had disregarded his direct instructions.[440]I accept that the meeting amounted to unwanted conduct.[441]There are no facts from which I could conclude that his purpose was to violate the Claimant’s dignity or to create a hostile or intimidating (etc) environment for her. Rather I accept that his purpose was raise the Claimant’s conduct with her, in the presence of HR (Ms Weigand).[442]In all the circumstances (and that includes noting what each of the Claimant and Ms Weigand said about it), I do not regard it was reasonable to treat the meeting of 7 July 2023 as having had the forbidden effect on the Claimant. Amongst other things, it is relevant that the Claimant was given the weekend to put something together that would be discussed the following Monday.[443]For the entirety of the age allegations, the Claimant’s arguments for why I should decide that the respective conduct in question was related to age are a combination of:443.1 if any of her own conduct, that prompted the Respondent’s “unwanted conduct” was because of menopause, then her own conduct was because of (or, at least, related to) age and thus the Respondent’s “unwanted conduct” was “related to” age, and/or 95 of 118443.2 Ms Phillips (a younger employee) was treated much better than the Claimant was treated, and there should be an inference that Mr Berry / the Respondent were motivated – whether consciously or unconsciously – to subject older employees to bad treatment.[444]There are no facts from which I could conclude that the events of 7 July 2023 were related to age. There were relevant differences between the Claimant’s circumstances and those of Ms Phillps that had nothing to do with age. In particular, Ms Phillps was less experienced than the Claimant and in a different role. To the extent that they were treated differently in any respect, there are no facts to cause me to believe that age was part of the motivation. However, there are also no facts from which I could conclude that Ms Phillps would not have been invited to a meeting similar to one arranged for 7 July 2023 had it been Mr Berry’s perception that her conduct matched that of the Claimant.[445]Furthermore, even on her own account, the Claimant had not said or done things - attributable to menopause symptoms – that caused Mr Berry to arrange this meeting.[446]Allegation 3.2.2 fails. Allegations 3.2.3 to 3.2.6[447]These are the age related harassment allegations about 6 September 2023 and the wording of the alleged unwanted conduct is the same as for the corresponding disability-related harassment allegations.[448]In terms of purpose and effect, I repeat what I already said about (in relation to section 3.1 of list of issues) as my reasons for deciding that the conduct in question had neither the purpose, nor the effect, described by section 26(1)(b) EQA.[449]The Claimant argues that age caused (or was related to) menopause symptoms, and that menopause symptoms caused the lack of sleep, and that lack of sleep caused her to take the train rather than drive, and taking the train caused her to be late. For that reason, she says that Mr Berry’s (alleged) conduct on 6 September 2023 was related to her age.[450]In Carozzi v University of Hertfordshire [2024] EAT 169, the EAT commented: … the term “related to” is designed to have a relatively broad meaning. The harassment provisions are designed to be pragmatic, balancing the interests of employees against those of their employer and colleagues who may be accused of harassment. That balance is not achieved by applying a limited meaning to the words “conduct related to a protected characteristic”.[451]Even applying a “relatively broad meaning” in this case, I am not satisfied by the Claimant’s arguments that Mr Berry’s conduct on 6 September 2023 was “related 96 of 118 to” age. In my judgment, it is too many steps removed. Perhaps it would be different if something about a person’s protected characteristic caused them to be late leaving the house (or caused them to have to interrupt their journey to be sick, or receive medical treatment, or for some other reason), and that was the cause of the lateness. But the Claimant’s argument that the protected characteristic caused her to choose a particular mode of transport and it was the choice of that mode of transport which caused her to be late is too remote, in my judgment.[452]However, regardless of whether I am right or wrong about that, and regardless of time limits, the age harassment allegations 3.2.3 to 3.2.6 fail because the conduct did not have the forbidden purpose or effect. Allegations 3.2.7 and 3.2.8[453]These are the age related harassment allegations about 22 November 2023 and the wording of the alleged unwanted conduct is the same as for the corresponding disability-related harassment allegations.[454]My comments about purpose and effect mirror those made when discussing paragraphs 3.1.9 and 3.1.10 of list of issues above. For those reasons, allegations 3.2.7 and 3.2.8 fail, even though they are in time.[455]The burden of proof does not shift in relation to whether the conduct was related to age. On the contrary, I am satisfied that there was no connection whatsoever between the Claimant’s age and Mr Fredriksson’s decisions about the timing of, or content of, the 22 November meeting.[456]These allegations fail.[457]The next section of list of issues, 3.3, deals with harassment related to sex. 3.3.1 Mark Berry made derogatory comments about the suitability of women with children for sales roles specifically a comment made that women should not go into sales because when they have a baby they lose interest in the job[458]I am not satisfied – on the balance of probabilities, having heard all the evidence and submissions from each side – that Mr Berry made the comment(s) in question.[459]The Claimant did not refer to this allegation on 15 August 2023 despite the fact that that meeting was arranged to consider her allegations that she was being treated badly because of childcare responsibilities, and despite being asked about whether she had observed Mr Berry treat other people the way that she alleged he treated her. My finding is that if Mr Berry had actually said that women should not go into sales and/or women who had a baby lost interest, and she recalled that remark as of July/August 2023, then it is inconceivable that the Claimant would have failed to say so in either the “Diary of Bullying at Work Incidents” document 97 of 118 or in the 15 August 2023 meeting. Thus the Claimant’s recollection that Mr Berry did actually say these things was formed later than August 2023 and is not sufficiently reliable.[460]This harassment allegation fails on the facts. 3.3.2. Patrick Fredriksson said that you “cannot be half pregnant” when referencing doing something in business - Made at the partner kickoff event.[461]This is a comment which Mr Fredriksson did make.[462]It was not his purpose to violate anybody’s dignity or to create a hostile (etc) environment for anybody. His intention was to use an expression that he thought would be well understood by the audience and which he did not consider to be offensive and which he did not expect anyone else to find offensive. (For completeness, I do take into consideration that English is not Mr Fredriksson’s native tongue, but my decision is that that fact is not relevant to the issues which I have to decide.)[463]I am not fully satisfied that the Claimant’s perception was that this comment had the effect of(a) violating her dignity or(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for her. Her Particulars of Complaint states: Patrik Fredriksson at his group presentations, would joke and make sexist comments that as a female I found offensive, for example he would always say 'you cannot be half pregnant', which is a sexist, gender specific and offensive term that should not be allowed in the workplace, but she did not include the allegation in her written statement.[464]However, even if it was the Claimant’s perception that the comment violated her dignity or created an intimidating, hostile, degrading, humiliating or offensive environment, in my assessment it would not be reasonable to treat those words as having such an effect. Some might say that it is a crass comment and/or that pregnancy should not be used as an analogy in business situations, but I do not consider that any reasonable person would regard the remark as implying that there was anything wrong with being pregnant, or anything wrong with people who were, or had been, pregnant. It is the type of comment that a reasonable person knows is uttered from time to time and knows is not literally discussing pregnancy and is not targeted at pregnancy (or the ability / lack of ability to become pregnant).[465]This allegation fails. 3.3 3. At a team dinner in Birmingham, Mark Berry made comments about getting into a hot bath to kill off sperm 98 of 118[466]My decision is that this is out of time.[467]I have not found that that Mr Berry (or the Respondent, or any of its employees) did do anything that was(i) a contravention of EQA and(ii) was in time. Thus the Claimant cannot rely on such an act/omission in order to argue that the alleged comments in Birmingham form part of a continuing act with it.[468]The alleged remark is not expressly referred to in Particulars of Complaint or in the draft list of issues produced at the August 2024 hearing.[469]In her witness statement, the Claimant alleges that: 73) At a team meeting in Birmingham, (Approx October 2023 – I would need access to my work diary to confirm the exact date) Mark Berry made offensive comments about women having a hot bath to kill off sperm after sex, he said to me, you would know all about that. This comment was offensive, I had bought my young son to the event in Birmingham, and he was across the road on his own in a hotel, he then came into the restaurant just as Mark Berry was saying this, I was horrified that this type of conversation would be happening let alone around my son. Again it was suggested that I brought my son with me, so that I could attend, he was made to stay in the hotel room on his own when we all went out to dinner, I felt that I had to do this, as it would put me at a disadvantage if I didn’t agree to doing this, it felt wrong, and Mark Berry’s comments were unwelcome and made me feel very uncomfortable.[470]In paragraph 8 of her statement, she wrote: 8) I had struggled to attend the Christmas evening event, which was held in Birmingham, (I live in London with my young son) Under my managers recommendation I took my … son with me, and I had to leave him alone in a hotel room so that I could attend the event. I was feeling anxious, I didn’t want to leave my son, in a strange hotel room, in a strange city, but Mark had made the suggestion, and I felt fearful if I didn’t comply, he made it sound like it was no big deal, bring him along, other people have done it. I felt that I would be judged differently if I didn’t attend, I felt dammed if I do, and dammed if I don’t.[471]The Claimant has not persuaded me that she took her son to two separate work events in Birmingham, or that she took him to an event in Birmingham in October 2023 (or early November 2023, following her return from sick leave, and prior to her last day of work).[472]On the balance of probabilities, the meeting in Birmingham alluded to in paragraph 73 of her statement is a reference to a meeting in late 2022. Amongst other things (taking into account what the Claimant says about Pia’s remarks made in April 2023, and the whole narrative of the entire litigation), if it were true that the Claimant had felt obliged to bring her son with her to an event in October 2023 (so about a month before the resignation), I am satisfied that this would not be something simply mentioned as background information to the alleged sperm comment, but would be described in more detail in the contemporaneous documents, the claim forms, and the witness statement. 99 of 118[473]This alleged incident occurred more than a year before the first claim was presented. Based on the documents available to me, it was not raised as a harassment allegation until later than August 2024, so around two years (roughly speaking) after the alleged incident.[474]The significant part of the alleged remarks – in my assessment – is less the alleged description of a contraceptive technique, and more the specific allegation that Mr Berry said “you would know all about that” to the Claimant. It probably would not be difficult to decide that – if the remark was made at all – it was related to sex. However, to analyse the purpose or effect of the unwanted conduct, and specifically the alleged “you would know all about that” comment, the full context of the conversation would have to be taken into account.[475]It is not a comment that Mr Berry admits and I find that the Claimant has been very vague about it. I have no reason to decide that the Claimant is deliberately lying on oath, in 2025, in what she says she recalls about it. However, even apart from my decision that she must have the date of the dinner wrong, if it was actually said, then I find it surprising that she did not mention it earlier. That is, if it was actually said in 2022, then I am surprised that she did not call it to mind, and write it down, in – for example – the diary submitted in August 2023 to support her grievance. She also did not raise it when challenging the outcome of that grievance.[476]There is prejudice to the Respondent and Mr Berry if I grant an extension of time (just as there is to the Claimant if I refuse it).[477]On balance, my decision is that the delay has meant that Mr Berry and the Respondent have been denied the opportunity to investigate promptly. Neither side alleges that there is anything in writing, and so the entire allegation turns on the recollection of witnesses relating to oral conversations which occurred more than one year, and up to two years before the Claimant raised them as a complaint.[478]For those reasons, allegation 3.3.3 is out of time and is dismissed. 3.3.4. The Claimant had to take her son on multiple occasions for work events and have him stay on his own in a hotel room whilst the Claimant went out with her work colleagues as there was pressure on the Claimant to attend these types of events[479]It is not true that Mr Berry required the Claimant to bring her son. She did do it on around two occasions in 2022. The most recent occasion was shortly before Christmas 2022.[480]As per the Claimant’s transcript (of a covertly recorded conversation) from April 2023, Mr Berry made clear to the Claimant that she was not required to stay overnight for social occasions or team building events, and it was only PKO for which he would insist on an overnight stay. 100 of 118[481]Mr Berry’s position was that he expected the Claimant to do her utmost to arrange childcare if business requirements were such that an overnight stay was required but (other than for PKO) he would accept that, if she was unable to arrange childcare, then she was unable to stay overnight.[482]This allegation fails on the facts. The specific alleged unwanted conduct did not occur. 3.3.5 to 3.3.8[483]These relate again to the meeting in Manchester (not Leeds) in March 2023. I said already, when dealing with paragraphs 3.1.1 to 3.1.3 that these allegations are out of time in relation to disability related harassment.[484]For the same reasons, they are out of time in relation to sex related harassment. 3.3.9. On 14 March 2023, Mark Berry put pressure on the Claimant to stay overnight for the 2 day partner event (in April). 3.3.10. On 14 March 2023, Mark Berry asked the Claimant at what age she would leave her son alone overnight[485]The specific alleged date (14 March) is not necessarily correct.[486]In any event, in relation to “pressure” that was cleared up by April 2023. As stated above, the Claimant was told that the only events she would have to stay overnight for were the PKO. (She might be asked to do her best to come on other occasions, but PKO was the only one that Mr Berry would insist upon.)[487]I am satisfied that this conduct was not related to the Claimant’s sex. The evidence proves that Mr Berry sought that all team members (regardless of sex, and regardless of whether they did, or did not, have childcare responsibilities) attend these events.[488]The only reason that the Claimant’s childcare responsibilities (including whether she would leave her son alone) became part of the conversation were because the Claimant raised those issues. Mr Berry did not raise those issues because of any reason related to the Claimant’s sex (as just mentioned, he did not raise them, the Claimant did) and his responses to what the Claimant said were not for any reason related to the Claimant’s sex. His reasons for his comments were that he did believe that she should do her best to make arrangements to attend relevant events, and he would have made the same comments to a man. (For avoidance of doubt, no “comparator” is required in relation to harassment allegations, but the fact that Mr Berry would have said the same things to a man assists me to decide that the unwanted conduct was not related to sex).[489]Allegations 3.3.9 and 3.3.10 each fail. 101 of 118 3.3.11. Between 24 March 2023 and 4 April 2023, Mark Berry sent a series of emails criticising the Claimant for not having childcare in place for the Partner Kick Off in Birmingham[490]As per the transcripts, I can understand why the Claimant might characterise some of Mr Berry’s comments as “criticism”. However, as I said in findings of fact, by the end of the conversation in April 2023 he had made the remarks which I have already referred to several times, to the effect that he would – other than for PKO – accept that there might be some occasions when the Claimant had found it impossible to arrange childcare.[491]While it is true that - prior to arriving at that – he had done his best to persuade the Claimant of the importance of attending these events, those remarks mirror what the Claimant herself has stated. She says that – prior to having a child – she was very keen to network and understood the importance of it to her role.[492]Based on the evidence as a whole, and taking account of the burden of proof provisions, I am satisfied that Mr Berry’s purpose was not to of(a) violate the Claimant's dignity or(b) create an intimidating, hostile, degrading, humiliating or offensive environment for her. His purpose was to seek to persuade her to attend the event, including staying overnight at the location.[493]On the Claimant’s side, it is entirely reasonable for her to have changed priorities and to decide she could no longer undertake the type of activity mentioned in paragraph 5 of her witness statement. However, when I assess whether it is reasonable for his conduct to have the effect described in section 26(1)(b) EQA, I take into account that the Claimant is familiar with the industry and – prior to being a single parent – believed that a high number of hours working/networking was beneficial. Based on the entire sequence of the discussions, including what Mr Berry said in April in the covertly recorded conversations, I do not consider it reasonable to treat the comments he made to the Claimant in relation to the PKO scheduled for April 2023 as having the forbidden effect, even ignoring time limit issues.[494]Furthermore, for the same reasons mentioned when discussing paragraphs 3.3.9 and 3.3.10 of list of issues, the unwanted conduct was not related to sex.[495]This allegation fails. 3.3.12. On 12 April Mark Berry’s reply to the Claimant’s email copying in Pia 3.3.13. On 12 April 2023, Pia suggested that the Claimant could bring her son to the hotel[496]These are out of time. 102 of 118[497]Pia has not been called as a witness. However, she was not involved in any of the other allegations contained in list of issues. Anything that she said/wrote in April 2023 in connection with the Claimant’s son was a one-off incident and not part of a continuing act.[498]The time limit expired around 11 July 2023. The Claimant was aware of ACAS, Employment Tribunals and time limits. She did not present the claim until more than 7 months after the expiry of the time limit.[499]There is minimal prejudice to the Claimant if time is not extended as the claims are weak in any event. The alleged unwanted conduct by Pia is a suggestion that the Claimant do again something which she had done in the past, and the mere fact alone that Mr Berry copied in a colleague (Pia) on an email about an event that she was involved with is unlikely to be deemed to have the forbidden effect.[500]These allegations fail. 3.3.14. On 13 April 2023, Mark Berry implied that the Claimant’s job might be at risk if she could not arrange childcare for overnight stays[501]It is true that Mr Berry argued to the Claimant that attending meetings, which might occasionally involve overnight stays, was an important part of the job. He sought to encourage her to do so (prior to the conversation ending with him saying that he would not insist on overnight stays other than for PKO).[502]Even during the earlier parts of the conversation, he did not suggest that the Claimant would be sacked for failing to do overnight stays.[503]As I have repeatedly said already, he did pressurise the Claimant (in the earlier parts of the conversation) into making arrangements for overnight stays. The reason he did that is that he thought that it was an important part of the role.[504]For the same reasons mentioned when discussing paragraphs 3.3.9 and 3.3.10 of list of issues, the unwanted conduct was not related to sex.[505]This allegation fails. 3.3.15. On 13 April 2023, at a video meeting, Mark Berry sought to insist that the Claimant stay overnight at the PKO – Partner Kick Off Meeting[506]For the same reasons mentioned when discussing paragraphs 3.3.9 and 3.3.10 of list of issues, the unwanted conduct was not related to sex.[507]This allegation fails. 3.3.16. On 13 April 2023, at a video meeting, there was implication by Mark Berry that the Claimant’s job was at risk if she would not stay overnight 103 of 118[508]This is effectively the same as allegation 3.3.14.[509]For the same reasons mentioned when discussing paragraphs 3.3.9 and 3.3.10 of list of issues, the unwanted conduct was not related to sex.[510]This allegation fails. 3.3.17. In June / July 2023, not allowing the Claimant to work on Unipart[511]This fails on that facts. It is not true that the Claimant was not allowed to work on Unipart.[512]Unipart remained the Claimant’s account, albeit there was a dispute about whether she should get credit – to be taken into account when assessing her performance – for a particular transaction (with the Respondent deciding it should be treated as deriving from channel sales).[513]There are no facts from which I could conclude that the Respondent’s decisions in relation to Unipart were related to the Claimant’s sex.[514]If the underlying implication of the Claimant’s argument is that Mr Berry was making sham decisions in order to deprive the Claimant of credit for certain transactions (so as to make her performance look worse than it really was, and so that the Respondent could/would dismiss her), I am satisfied by the Respondent’s evidence that that is not the case. Mr Berry’s email of 5 July 2023 at 05:44 [Bundle 242] accurately described his own genuine reasons for the decision made, and Mr Fredriksson genuinely believed that Mr Berry’s email of 23 June 2023 [Bundle 231] accurately described a protocol that Mr Fredriksson believed was applied globally and that the UK workers should already be working to.[515]This allegation fails. 3.3.18. On 7 July 2023, Mark Berry holding meeting with the Claimant, attended by HR, and making accusations[516]I repeat what I said above when addressing item 3.2.2, namely:516.1 I accept that the meeting amounted to unwanted conduct.516.2 There are no facts from which I could conclude that his purpose was to violate the Claimant’s dignity or to create a hostile or intimidating (etc) environment for her. Rather I accept that his purpose was raise the Claimant’s conduct with her, in the presence of HR (Ms Weigand).516.3 In all the circumstances (and that includes noting what each of the Claimant and Ms Weigand said about it), I do not regard it was reasonable to treat the meeting of 7 July 2023 as having had the forbidden effect on 104 of 118 the Claimant. Amongst other things, it is relevant that the Claimant was given the weekend to put something together that would be discussed the following Monday.[517]This allegation fails. 3.3.19. In July 2023, the Claimant was made to report into both Patrik Fredriksson and Mark Berry[518]This fails on the facts as the conduct did not occur.[519]With the Claimant’s agreement, she was required to report (on an interim basis) to Mr Fredriksson. He was her line manager, and Mr Berry was not, during that period.[520]Mr Fredriksson held the PIP etc.[521]Since Mr Berry was country manager for UK, the Claimant still had some interaction with Mr Berry, since she was a UK based employee.[522]In any case, there are no facts from which I could conclude that the requirement to deal with Mr Berry for some matters was related to the Claimant’s sex.[523]I am satisfied that it was not the Respondent’s purpose (in making the interim arrangements that Mr Fredriksson would act as line manager, deal with PIP, etc, or in requiring the Claimant to have some interaction with Mr Berry as UK manager) to(a) violate the Claimant's dignity or(b) create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant.[524]My decision is that it would not be reasonable to treat the employer’s conduct as having that effect.[525]This allegation fails. 3.3.20. On 6 September 2023, when the Claimant’s train arrived late, Mark Berry chastised the Claimant for this, and said: “This is why we give you a car allowance so you can drive to these meetings”. 3.3.21. On the same day, Mark Berry kept texting to ask the Claimant where she was 3.3.22. On the same day, Mark Berry required the Claimant to walk in the heat 3.3.23. On the same day, when the Claimant arrived, Mark Berry being said that[526]I have commented on these events above. 105 of 118[527]I add that I am entirely satisfied that these matters had nothing to do with the Claimant’s sex, even taking into account her argument that the lateness was caused by menopause, which I described in more detail when discussing the protected characteristic of age.[528]This allegation fails. 3.3.24. Patrik Fredriksson had investigatory meeting on 22 November 2023: the 3.3.25. Patrik Fredriksson had investigatory meeting on 22 November 2023: the[529]I have commented on these events above.[530]I add that I am entirely satisfied that these events had nothing to do with the Claimant’s sex.[531]This allegation fails. 3.3.26. Threats of termination and “management out” of the business by Mark Berry[532]The issue of whether what was said to the Claimant about termination should be characterised as a “threat” is a matter of opinion. Mr Berry stated his opinion several times, using plain language, that if the Claimant’s performance did not improve her employment could be terminated. He did not state or imply that her employment would be terminated if she performed satisfactorily.[533]Mr Berry’s comments were not made “secretly”. He did not seek to hide his opinions from – for example – Ms Weigand or Mr Fredriksson.[534]The reasons he said what he said is that it was his genuine opinion that the Claimant’s performance did not meet expectations and his genuine opinion that, if it did not improve, then there would be a formal process which was likely to result in termination of employment.[535]The Claimant was told that procedures would be followed and told that, in accordance with procedure, if her performance did not improve sufficiently during one stage of the procedure, matters would move to the next stage.[536]It is not reasonable for an employee – whether in sales or any other industry – to regard receiving information about possible dismissal (in the circumstances mentioned in the last paragraph, and taking into account the actual words used to the Claimant) as having the effect of(a) violating their dignity or(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The 106 of 118 Claimant was going to have the opportunity to show others (not just Mr Berry) that her performance was adequate and that dismissal would be inappropriate.[537]It is relevant that, if an employer believes that an employee’s performance is a cause for concern, then warning the employee about(i) how their performance is being perceived and(ii) that dismissal might be the outcome of lack of improvement, are considered best practice.[538]I am entirely satisfied that the warnings that the Claimant was given were not related to sex, and were not because of the discussions about childcare. They were because of sales performance.[539]This allegation fails. 3.3.27. Showing the Claimant on the sales leader boards as being the bottom of the ranking[540]I have commented on these events above.[541]I add that I am entirely satisfied that these events had nothing to do with the Claimant’s sex.[542]This allegation fails.[543]That deals with all the harassment allegations. The next section of list of issues deals with age discrimination. 4.1.1. being allowed to pick their accounts on their named accounts list[544]This fails on the facts, Ms Phillps was not allowed to pick her own accounts. 4.1.2. given significantly larger accounts to work on, and thus[545]The Claimant has failed to prove this factual allegation. Apart from anything else, on the Claimant’s own version of events, she had some large accounts. Furthermore, having referred to Marks & Spencer as an account (allegedly) given to Ms Phillips, the Claimant accepted in her oral evidence that that account was not of a type that was within the scope of the Claimant’s work in any event. 4.1.3. given an advantage over the Claimant who was bullied, performance managed, and whose job was repeatedly threatened due to lack of performance when Ms Phillips was not performance managed in this way.[546]Targets were set for the whole team and the worker was expected to achieve their own targets.[547]Ms Phillps was new to the team. Her own targets were not precisely the same as the Claimant’s (each of the team had different targets). Ms Phillps was not failing 107 of 118 to meet her targets and there were no grounds for the Respondent to place Ms Phillps on a PIP (formal or informal).[548]There are material differences between the Claimant’s circumstances and those of Ms Phillps. She is not an actual comparator.[549]There are no facts from which I could conclude that a hypothetical comparator – whose circumstances were the same as the Claimant’s but who was younger – would not have been put on a PIP.[550]On the contrary, I am satisfied from the evidence that the Claimant’s age had nothing whatsoever to do with any of the Respondent’s decisions in relation to managing the Claimant’s performance.[551]This allegation fails. 4.1.4. that the Claimant was threatened with termination of employment. The comparator is Judith Phillips who the Claimant believes is in her mid-thirties.[552]Ms Phillps was not failing to meet her targets and there were no grounds for the Respondent to warn her about possible dismissal.[553]There are material differences between the Claimant’s circumstances and those of Ms Phillps. She is not an actual comparator.[554]There are no facts from which I could conclude that a hypothetical comparator – whose circumstances were the same as the Claimant’s but who was younger – would not have been subjected to the performance management procedure and warned that the eventual outcome (after informal then formal stages) might be dismissal if there was lack of improvement.[555]On the contrary, I am satisfied from the evidence that the Claimant’s age had nothing whatsoever to do with any of the Respondent’s decisions in relation to information given to her about possible dismissal.[556]This allegation fails.[557]That is the end of the age discrimination allegations, and the next section of list of issues deals with protected disclosure complaints. 5.1. Were the alleged disclosures referred to at paragraph 41 of Claim 1 made? a) 29th June 2023. Conversation with Darren Beckley[558]This fails as discussed in findings of fact. I am not satisfied what information was communicated to Darren Beckley by the Claimant. b) 7th July 2023. Mark Berry meeting 108 of 118[559]I am not satisfied that the Claimant disclosed information that she believed tended to show a breach of a legal obligation. If she did think that, it was not a reasonable belief. Similarly, if she did believe that the disclosure was in the public interest, then that was not a reasonable belief. c) 20th July 2023. Teams meeting with Patrik Frednksson[560]I am not satisfied that the information, as described in Particulars of Complaint, actually was disclosed by the Claimant. However, and in any event, I am not satisfied that the Claimant disclosed information that she believed tended to show a breach of a legal obligation. If she did think that, it was not a reasonable belief. Similarly, if she did believe that the disclosure was in the public interest, then that was not a reasonable belief. d) 28th September 2023. Email to Alison Campbell[561]There was an email of that date. The comments made were too vague. I do accept that, in principle, “business practices” which were “unethical” might be “business practices” which were a breach of a legal obligation, but that is not always the case. In any event, the Claimant was not specific. e) 28th September 2023. Email to Patrik Fredriksson[562]I quoted from this in findings of fact. In the email, she referred to having made a “recent whistle blowing complaint” but did not give details. She referred to Mr Berry’s “behavio[u]r” without detailing it.[563]If the Claimant believed that the information she disclosed in this email was in the public interest, then that was not a reasonable belief. f) 11th October 2023. Telephone conversation with Alison Campbell[564]I am not satisfied that there was any telephone conversation with Alison Campbell on 11 October 2023. It follows that I am not satisfied the Claimant made any disclosure by phone to Alison Campbell that day. g) 2nd November 2023. Grievance appeal hearing meeting h) 17th January 2024. Meeting with investigatory team.[565]In terms of what the Claimant has labelled “price fixing”, the Claimant has been vague throughout the litigation and I am not satisfied that she supplied – on 2 November 2023 or 17 January 2024 – a clear explanation of what, specifically, Mr Berry was alleged to have done wrong. For this, I am not satisfied that the Claimant disclosed information that she believed tended to show a breach of a legal obligation. If she did think that, it was not a reasonable belief. Similarly, if she did believe that the disclosure was in the public interest, then that was not a 109 of 118 reasonable belief. As she has put it, the person adversely affected - by what Mr Berry did in relation to prices - was her.[566]However, in relation to the football tickets allegation, I do consider that the gist of what the Claimant was communicating was sufficiently clear.566.1 In essence, she was suggesting that Mr Berry was going to do a “favour” for an employee of another business (supply football tickets) and in return that employee was going to do a favour for Mr Berry.566.2 The bar for whether something meets the threshold for tending to show breach of a legal obligation is deliberately not intended to be set too high. The intention of the legislation is to encourage people to “blow the whistle” even if they are not fully certain of all the facts.566.3 I do not think it matters whether the allegation was that Mr Berry (or the Respondent) was going to pay for the tickets and supply them for free, or whether the “favour” was simply obtaining tickets that were hard to get with the recipient paying cost price for them.566.4 I do not ignore the Respondent’s arguments that the person in question – an engineer – would not have been in a position to send business to Honeywell (or its partners) because they were not a relevant decisionmaker. That does not matter; the Claimant does not have to prove that it was actually true that the Respondent was going to receive some (unlawful) benefit in return for the tickets (and, in any event, persons other than the final decision maker might have a role to play in the procurer’s assessment of what to buy, and from whom).566.5 Even though the Claimant’s assertions are vague, and there are no precise details of how this scheme was supposed to work have been supplied, I am satisfied that she said enough to make clear that she was implying that there might have been an offer of a bribe, or an attempt to bribe, someone working for another business. I am satisfied that the Claimant disclosed information that she believed tended to show a breach of a legal obligation, and that it was a reasonable belief. I am satisfied – taking into account the size and importance of the Respondent - that she did believe that the disclosure was in the public interest, and that was a reasonable belief.[567]Thus, on 2 November 2023 and 17 January 2024, the Claimant did make a protected disclosure in relation to football tickets.[568]In section 5.3 of list of issues there are seven alleged detriments. The first two items (7 July and 20 September 2023) predate the earliest protected disclosure and the complaints that that (alleged) treatment was on the grounds that the Claimant had made a protected disclosure fails. 110 of 118[569]Paragraphs 5.3.3 and 5.3.4 relate to calling the Claimant to an investigation meeting on 22 November and then - according to the Claimant – excluding her from a meeting later that day.[570]The Respondent has shown the reasons for its actions on 22 November, and shown that the reasons had nothing whatsoever to do with the protected disclosure made on 2 November.570.1 As discussed already, Mr Fredriksson held the investigation meeting because of what he had found when he examined Salesforce in October, and the only reason the meeting did not take place sooner was that the Claimant had been on sickness absence, and he then allowed her some time to recover.570.2 The only reason for telling the Claimant not to go to the meeting later that day was that Mr Fredriksson wanted her to prioritise the corrections that she needed to make to Salesforce, and he thought that was more important than the meeting. He offered to assist her by sending apologies on her behalf. There was no intention to deprive her of any opportunity as a result of her missing the meeting; he believed that the decision was beneficial to her as she was allowed to do the work on Salesforce during office hours.[571]In relation to 5.3.5, Mr Fredriksson has shown the reasons for his decision (made on the Respondent’s behalf, and after he had taken HR advice) that the Respondent would not agree to the Claimant’s resignation being retracted. He has shown that his thought process had nothing whatsoever to do with the protected disclosure made on 2 November.[572]Paragraph 5.3.6 refers to a dispute which arose in July 2023. The Claimant made clear – in July – that she disagreed with decisions which the Respondent had made. Thus the alleged detriment occurred several months before either protected disclosure and was not on the grounds that the Claimant had made a protected disclosure. The Respondent has satisfied me that the fact that the Respondent did not change its mind after 2 November 2023 was not on the grounds that the Claimant had made a protected disclosure.[573]The complaint about the detriment alleged in paragraph 5.3.7 would have failed for an identical logical reason to that mentioned in the last paragraph. However, this alleged detriment did not occur. The Claimant was not removed from the Unipart account in July 2023.[574]Thus all of the protected disclosure detriment complaints fail. 111 of 118 Constructive Dismissal: paragraph 5.5 of list of issues[575]The Claimant relies on the same matters as for protected disclosure detriment (not including failure to allow retraction of resignation) and also on the grievance not being upheld, treatment connected with the PIP and the contents of the audio recordings.[576]As has been detailed above, the Claimant was placed on an informal PIP. There was one started by Mr Berry and then the process recommenced under Mr Fredriksson. The Respondent followed its written policy and also granted extensions.[577]In principle, extending someone’s informal PIP could be bad treatment if the correct thing to do would be to end it, and tell them they had successfully completed it.577.1 However, extending someone’s informal PIP is not bad treatment if the alternative is to inform them that they have not met the required standards during the informal stage, and so the informal stage is now over and the formal stage will commence.577.2 In this case, it was the latter.577.3 The Respondent did not breach the Claimant’s contract (either any express term, or the term requiring trust and confidence) by extending the informal PIP.577.4 It was the Respondent’s genuine opinion that she had not met the targets given such that they should cease the process. Thus, they had two remaining choices: either extend the informal stage to give her a longer period of time in which to demonstrate satisfactory performance; or end the informal stage and move to the formal stage.577.5 This is not a case where the employee requested to move to the formal stage (for example, because they thought that greater formality would be more beneficial to them). The Respondent was entitled to assume, and did assume, that the Claimant would prefer to have the informal PIP extended rather than move to the formal stage; in any event, the extensions were not unreasonable and were not conduct that was likely to damage trust and confidence.[578]In terms of the process, I regard the Claimant’s complaints that she did not get written feedback from Mr Fredriksson after each meeting as nitpicking. Some employers might do it that way, but I agree with him that he had given the Claimant the overall details in writing at the outset and that he gave her oral feedback when they met. She was a senior employee and was in a position to understand that 112 of 118 oral feedback and to make her own notes as required. It was not a breach of contract for him to omit to email her each time to repeat what they had orally said to each other.[579]In terms of grievance process, the delay between 12 July and 2 August was entirely the Claimant’s responsibility. She was asked to provide information, and chasers were sent, and she supplied it on 2 August. I am not implying that the Claimant took an unreasonably long period of time in which to supply the further details; I am simply saying that the alleged period of delay by the Respondent does not commence until 2 August.[580]Within August, several meetings took place. The outcome was supplied in September. My assessment is that the outcome letter was extremely brief and a more detailed letter (at the very least giving some details of what interviews and other fact finding had taken place) would have been(i) more normal and(ii) more in keeping with what an employee might reasonably expect, if they were to see that their complaints had been properly considered. The Respondent is not a small organisation and it has dedicated Human Resources employees.[581]In terms of duration, I do not regard the period from start to finish (12 July to 14 September 2023: so two months) as excessive. However, as mentioned, my assessment is that the actual period up to the outcome letter is really only about 6.5 weeks (2 August to 14 September). Some employers might have done it more quickly. However, a high percentage of employers would have taken longer. This length of time, in itself, is not unreasonable.[582]The Claimant did not resign in immediate response to the September outcome letter (either because of its contents, or the length of time taken before it was sent). She appealed. I do not regard the duration of time between the appeal notification (20 September 2023 [Bundle 326]) and the appeal hearing (2 November 2023) to be unreasonable. For one thing, the Claimant’s appeal notification contained no detailed grounds (though I do accept that the appeal outcome itself was extremely brief) and she was asked to supply grounds, and for another thing the Respondent contacted her and sought to make arrangement for the appeal hearing. It was with the Claimant’s agreement that the hearing did not take place until she returned from sick leave.[583]By the date of the Claimant’s resignation email (23 November 2023), she had not received the appeal outcome. The Claimant wrote on 6 November 2023 with her summary of what had been discussed. On Monday 13 November 2023, at 16.11, the Respondent supplied the notes of the appeal meeting, and stated that they were working on the appeal. The Claimant replied the following day to say that “there are a lot of comments that I do not agree with”. As requested, on 16 November 2023, the Respondent supplied a Word document so that the Claimant could make tracked changes. On 21 November, the Respondent asked for update 113 of 118 from the Claimant as to when those changes would be received. The Claimant asked to have until the end of the week. She then sent the changes at 10.01am on 23 November, so about 2.5 hours after the resignation email.[584]I do think that some employers might have issued the appeal outcome letter sooner, and that an employer could simply have sent the meeting notes at the same time as the outcome letter. Alternatively, if sending the notes prior to the outcome, some employers would have sent the meeting notes sooner than 11 days after the meeting. However, once the Claimant had made clear that she was going to make significant proposed amendments to the notes, it was not unreasonable for the Respondent to await that prior to issuing the appeal outcome; indeed, an employee might feel aggrieved if they said they wanted to amend the notes but the employer went ahead and issued the outcome without waiting for that. In any case, when the Claimant was chased to supply her comments on the notes, she did not ask the Respondent to issue the outcome anyway, she asked for a few more days to complete the task.[585]In all the circumstances, the fact that, by 23 November 2023 (at 7.16am), the Claimant had not received the appeal outcome was not conduct that was calculated or likely to destroy the relationship of trust and confidence.[586]My finding is that the immediate trigger for the Claimant’s resignation email was the meeting in the morning on 22 November 2023 (coupled with the fact that there was no “settlement / exit agreement” following her suggestion later the same day, at 12.34).[587]Mr Fredriksson’s reasons for holding the meeting, and the timing of it, are as mentioned above.587.1 Those were his genuine reasons. He was not seeking to destroy trust and confidence, but to obtain the Claimant’s answers to questions about the Salesforce records.587.2 This was not conduct that was “without reasonable and proper cause“; the entries were supposed to be accurate, and he had formed the opinion that they might not be.587.3 An investigation meeting attended by the Claimant, by Mr Fredriksson and Ms Weigand was not excessive. The issue of whether to arrange a formal (investigation) meeting or to ask questions informally ahead of making a decision about whether to arrange a formal (investigation) meeting is a judgment call, and Mr Fredriksson did not make an unreasonable decision.587.4 Furthermore, the decision to inform the Claimant to make the corrections the same day, instead of attending a meeting that day, was entirely reasonable. 114 of 118587.5 A decision was to be made in due course as to whether a disciplinary hearing was appropriate. The Claimant chose not to wait. Her email of 12.34 on 22 November 2023 indicated that she believed Mr Fredriksson was hinting that there would be no disciplinary hearing.[588]Thus the events of 22 November 2023, which were the immediate cause of the resignation, do not amount to a breach of contract at all (and so I do not need to consider whether there was a repudiatory breach that day or not).[589]I then move on to considering whether the events of 22 November 2023 formed part of conduct that amounted to a cumulative breach (Kaur) and, in the alternative, were the events of 22 November 2023 a “last straw” (Omilaju). My assessment is that it was neither. Even the cumulative effect of all the conduct relied on by the Claimant did not amount to a breach of the “Malik term”.[590]There was no (so-called “constructive”) dismissal as defined by section 95(1)(c) on 23 November 2023.[591]Even had I decided that there was a dismissal on that date, the section 103A complaint would have failed, because the conduct in question was not on the grounds that the Claimant had made any protected disclosure (as discussed when addressing the detriment complaints above).[592]For completeness, I am satisfied that there was no dismissal within the definition in section 95(1)(a) either. The Claimant’s resignation email was a written communication sent after she had floated the possibility of termination (albeit, an agreed exit package) the previous day. In the course of the day, she communicated unequivocally that her employment would end after a notice period. There is no indication in the correspondence that her actual intention was to do anything other than end her employment contract. Any reasonable bystander would have interpreted the Claimant’s words in exactly the same way that Ms Weigand interpreted them, even taking account of the fact that the Claimant had recently had time off, and referred to “mental health” in the resignation email (as well as other documents sent previously). The slight difference of opinion about how to calculate the end date, given the Claimant’s statement that she would work the notice required by her contact, did not create any ambiguity about the fact that her 23 November email (7.16am) was a resignation.[593]The Claimant had clearly unequivocally communicated a resignation and (notwithstanding what she wrote on 25 November 2023 or later), the Respondent’s decision to treat the 23 November (7.16am) email as a resignation did not amount to a dismissal (and nor did its decision to refuse to agree to the request to allow the Claimant to retract the resignation). 115 of 118 6. Direct Sex Discrimination (s.13 Equality Act 2010) 6.1. Was the Claimant subjected to the less favourable treatment on the grounds of her sex? 6.2. The Claimant relies on the acts set out as acts of harassment. 6.3. The alleged less favourable treatment is that the Claimant was treated less favourably than Mr Mark Hoole and Jason Walden in that the comparators were not invited to the same disciplinary investigatory meeting even though their circumstances were similar[594]The Claimant has not shown that their circumstances were similar. She has not shown that their entries on Salesforce used the same methodology that she had used. I am satisfied that Mr Fredriksson did check Salesforce from time to time for all employees, not just the Claimant.[595]In any case, even taking the facts as a whole, for those matters that are in time, there are no facts from which I could conclude that the Claimant’s sex played any part – whether conscious or unconscious – in the decisions that were taken. 7.1. The alleged protected act are first grievance around July 2023 and second grievance around October / November 2023 and stating that she could not do overnight stays because of childcare. Were any or all of those a protected act as defined in section 27 the Equality Act 2010 ("EQA").[596]The Claimant’s grievance of 12 July, supplemented by the information on 2 August, and what she said in the meeting, was a protected act. The Claimant’s comments in the appeal hearing, and her subsequent 6 November email, were protected acts. She alleged that the Respondent’s conduct (and Mr Berry’s in particular) contravened EQA. 7.2.1. Had to continue to report into Mark Berry after raising grievance(s).[597]I commented on this alleged act in relation to paragraph 3.3.19 of list of issues.[598]To the extent that the allegation is that he still acted as her line manager, the allegation fails on the facts.[599]To the extent that the allegation is simply that there were still some occasions when he gave her instructions and/or had dealings with her, there are no facts from which I could conclude that that was because of the protected act. I am satisfied that the reason was in no sense whatsoever because of any protected act. It was because he was the country manager for the UK, and the Claimant worked in the UK. 7.2.2. On 22 November 2023, Patrik Fredriksson had investigatory meeting.[600]I have commented on this act several times already. There are no facts from which I could conclude that that was because of the protected act. I am satisfied that the 116 of 118 reason was in no sense whatsoever because of any protected act. It was for the reasons mentioned above. 7.2.3. On around 7 September 2023, Mark Berry sent email to Patrik Fredriksson to say that the Claimant’s performance process was not moving forward sufficiently quickly[601]Mr Berry was plainly frustrated with the Claimant. The main cause of his frustration is what the Claimant had written in the email that he was commenting on, as well as her lateness the previous day.[602]He did make a passing comment about grievance too. However, I am satisfied that the other things written in this email would have been identical if – hypothetically – the Claimant had not raised a grievance at all.[603]In particular, I am entirely satisfied – even taking into account burden of proof considerations – that his remark about the performance process moving slowly was nothing whatsoever to do with the fact that the Claimant had raised a grievance about him, but simply reflected the fact that – prior to any protected act – he had initiated the informal PIP, and matters were still at the informal PIP stage. 7.2.4. Mark Berry and Patrik Fredriksson did not allow the Claimant to work on Unipart and Wincanton[604]This fails on the facts in relation to Unipart because she was expressly told that she was to work on Unipart.[605]In relation to Wincanton, while the Claimant was told that her colleague would do some follow up work, in relation to the contact he had with the client during her sick leave, she was expressly told by Mr Fredriksson in November that Wincanton was still her account.[606]Thus all of the victimisation complaints fail (regardless of any time limit issues). Indirect sex discrimination.[607]In the amended Grounds of Resistance, the Respondent disputed that the policy of requesting sales employees to stay overnight at the PKO put women at a disadvantage as compared with men. It also produced evidence, and made submissions which it said supported that.[608]It also alleged:15. The Respondent relies on the aim of promoting strong relationships between Salespeople and Partners. This is a legitimate aim as it results in healthier working relationships and ultimately sales targets being achieved through collaboration. It also ensures Partners feel valued and their support and efforts recognised by Sales Staff. It was therefore proportionate to request that Sales Staff attend the annual PKO to 117 of 118 meet this legitimate aim. This is further proportionate where such attendance occurs once a year and is requested with significant notice being given to staff.16. …. options were explored with the Claimant to understand whether it was possible for the Claimant to accommodate overnight stay at the PKO. This was a proportionate management approach in furtherance of the legitimate aim and in circumstances where it would otherwise require the Claimant driving back and forth for the two-day event.[609]The Respondent has shown that it did have the aim that it asserts, and also that that was the reason for encouraging the account managers to stay overnight at the PKO.[610]I am satisfied that the aim was a legitimate one for an employer to have for its sales staff.[611]The Respondent has also shown that the PCP was proportionate in all the circumstances. It was generally once a year and it was seen as an important part of attempts to be able to generate business. It would not be possible to arrange a physical event to be near to all of the relevant employees’ home addresses. Further, liaising with the Partners by phone or video would not have been as effective in seeking to make the Partners feel valued, and well-disposed to the Respondent. Even assuming the discriminatory effect alleged by the Claimant, the PCP was proportionate.[612]The indirect sex discrimination claim fails.
Conclusion
[613]Thus, as set out in the judgment, all the claims failed. Approved by: