Ms L B Dethling v The Commissioner of the Police of the Metropolis: 3301946/2023
EMPLOYMENT TRIBUNALS
Case No 3301946/2023
Between
Ms L Barbosa DethlingClaimantThe Commissioner of the Police of the MetropolisRespondent
Before
Employment Judge GeorgeMr O Isaacs (instructed by counsel) for respondentDate 9 October 2025
JUDGMENT
[1]The following claims are dismissed because the employment tribunal does not have jurisdiction to consider them:a. unfair dismissal contrary to section 94 of the Employment Rights Act 1994 (hereafter the ERA);b. Harassment under the Protection from Harassment Act 1997 (hereafter the PHA);c. Breach of duty of care leading to personal injury, andd.Breach of the Police (Performance) Regulations 2020 and/or the Police Conduct Regulations 2020 as freestanding complaints. Any complaint that the respondent subjected the claimant to unlawful detriment contrary to the Equality Act 2010 (hereafter the EQA) by an act which contravened the Performance and Conduct Regulations is not affected by this judgment.
REASONS
[1]The details of the preliminary hearing, the stage the litigation has reached and the issues which will proceed to final hearing are set out in the Case Summary of the separate record of hearing sent out with this reserved judgment. I refer to but do not repeat those details so that this judgment should not be unnecessarily long. Page numbers in this judgment refer to page numbers in the 222 page electronic hearing file for the hearing on 7 March 2024. The respondent’s application is at page 117 and the claimant’s full response is at page 118. The latter is referred to as CSUB paras.1 to 39 as the case may be. Unfair dismissal contrary to s.94 ERA.[2]Part X ERA contains the provisions governing the right not to be unfairly dismissed. The right itself is set out in s.94 ERA. Section 95 ERA contains the definition of ‘dismissal’ for the purposes of that right.[3]Although the claimant in her response to the respondent’s application for orders striking out certain of her complaints appeared to withdraw the claim of unfair dismissal, this was an equivocal withdrawal because she stated that it was: “on the basis that her dismissal was constructive, rather than a direct act of dismissal from the Respondent.”[4]The wording of s.95(1)(c) Employment Rights Act 1996 (hereafter the ERA) makes clear that dismissal includes where “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.” The claimant stated that she had understood that for an unfair dismissal complaint she would have had to be directly dismissed by the respondent and that that was the only reason she agreed to withdraw that complaint. That explanation was consistent with the wording of her purported withdrawal which I accepted did not amount to a withdrawal within rule 52 of the Employment Tribunal Rules of Procedure 2013. I in reality an unfair constructive dismissal complaint is a type of unfair dismissal complaint.[5]The respondent’s argument relies upon a different point; they rely upon s.200 ERA, which is headed ‘police officers’ and, so far as is material, provides as follows: “(1) […], Part X (except sections 100, 103A and 134A] and the other provisions of that Part so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of [section 100[ or 103A]] do not apply to employment under a contract of employment in police service or to persons engaged in such employment. (2) In subsection (1) “police service” means —(a) service as a member of a constabulary maintained by virtue of an enactment, or(b) subject to section 126 of the Criminal Justice and Public Order Act 1994 (prison staff not to be regarded as in police service), service in any other capacity by virtue of which a person has the powers or privileges of a constable.”[6]Mr Isaacs drew attention to the order of Employment Judge Anstis (page 101) by which he refused permission to the claimant to add complaints that the reason or principle reason for her constructive dismissal was that she had made protected disclosures and/or was on prohibited health & safety grounds. Although the claimant argues that she is appealing this order, until it has been successfully appealed, the claim does not include complaints under s.100 (health & safety) or s.103A (protected disclosure) ERA.[7]The clear terms of s.200 ERA preclude a claim for unfair dismissal (whether the based on termination by the employer or termination by the employee) by a police officer save in particular circumstances which, I am satisfied, do not apply in the present case. The Tribunal does not have jurisdiction to consider that claim.[8]What the claimant argued was that Judge Anstis had been wrong to deal with it as an application to amend her claim but it would be wrong for me to go behind the decision of a fellow first instance judge firstly that the amendment was needed and secondly that it should be refused. Harassment under the Protection from Harassment Act 1997 (hereafter the PHA)[9]The claimant argued that employers can be held liable to their workers for harassment in the workplace for which they were vicariously liable: Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 3.[10]The respondent does not argue otherwise but points to the exclusive jurisdiction given to the courts to consider claims under the PHA because of s.3 PHA which states (so far as material): “(1) An actual or apprehended breach of [the section 1(1) prohibition on harassment] may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question. (2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment. (3) Where—(a) in such proceedings the High Court or [the county] court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and(b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction, the plaintiff may apply for the issue of a warrant for the arrest of the defendant. (4) An application under subsection (3) may be made— (a) where the injunction was granted by the High Court, to a judge of that court, and (b) where the injunction was granted by [the county] court, to a judge [of that] court. (5) The judge [...] to whom an application under subsection (3) is made may only issue a warrant if— (a) the application is substantiated on oath, and (b) the judge [...] has reasonable grounds for believing that the defendant has done anything which he is prohibited from doing by the injunction. (6) Where— (a) the High Court or [the county] court grants an injunction for the purpose mentioned in subsection (3)(a), and (b) without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction, he is guilty of an offence.”[11]It was not, he argued, that the act could not be used by workers in respect of workplace harassment but that they could only enforce a complaint under the PHA in the civil courts and not in the tribunal. In support of this argument, not only did Mr Isaacs point to the absence of express jurisdiction, such as is found for discrimination and victimisation in s.120 EQA, but also to the inclusion of a remedy which the Tribunal has no power to make, namely an injunction.[12]The claimant analysed the question of whether the Tribunal should be regarded as a court for the purposes of s.3 PHA in paras.11 to 17 and relied upon Irwell Insurance Company Ltd v Watson (also known as Watson v Hemingway Design Ltd) [2021 EWCA Civ 67 [2021 I.C.R. 1034, CA.[13]That case involved the Third Parties (Rights against Insurers) Act 2010 (hereafter the TPRI). The claimant brought claims for which the employment tribunal has exclusive jurisdiction (unfair constructive dismissal and disability discrimination including against an individual director). The corporate employer was insolvent and the claimant sought to join an insurer whom he argued would be liable to pay any compensation ordered against his employer under the terms of a contract of insurance between the company and the insurer. The Court of Appeal held that the Tribunal should be regarded as a court for the purposes of s.2(6) TPRI, relying in part upon the unfortunate situation which would otherwise result from the claimant being in a different situation[14]I note that the claimant did not in her analysis of this authority quote from para.29 of the judgment where the case of Brennan v Sunderland City Council (No.2) [2012] ICR 1183, EAT was considered. There Underhill J, as he then was, held that the employment tribunal does not have jurisdiction to make orders for contribution under the Civil Liability (Contribution) Act 1978 and that the right to contribution could only be created by Parliament.[15]In my view the right to bring ‘civil proceedings’ under s.3 PHA are civil proceedings in the High Court or county court. Not all of the remedies envisaged by the section are available in the employment tribunal. Although the reference to those courts in s.3 is in the context of the grant of an injunction, the absence of reference to the forum for ‘civil proceedings’ in s.3(1) does not amount to a grant of jurisdiction to the employment tribunal. We are a creature of statute and look for expressly granted jurisdiction. For example, the EQA is very clear to specify which sections are within the jurisdiction of the employment tribunal and which the county court. Were the claimant’s interpretation to be the correct one, there would be nothing to stop a person who has experienced a course of conduct in breach of s.1 PHA but outside the workplace to bring a claim to the employment tribunal. The absence from the PHA of delineation of jurisdiction such as is found in the EQA causes me to think that Parliament did not intend the employment tribunal to have jurisdiction over this Act.[16]It is clear that the employment tribunal has no jurisdiction under the PHA and that claim will be dismissed for that reason.[17]The claimant argues in her para.19 that such an interpretation would indirectly discriminate against police officers, without protection from harassment in the workplace for reasons not related to any particular protected characteristic within the EQA. This is not the case. Such police officers may bring civil proceedings in the High Court of county court and are therefore in the same position as other workers.[18]The next question is whether the harassment complaint which the claimant seeks to bring is one which, properly analysed, does not fall under the EQA but potentially falls under the PHA 1997. The Further and Better Particulars (page 87 para.168) referred to a consistent pattern of behaviour alleged to be “harassing, unwarranted, unreasonable and oppressive.” This is consistent with the claimant’s draft list of issues (para.2). There is no suggestion that this behaviour was related to a protected characteristic. In para.19 of her response to the application to strike out this claim, she specifically states that the alleged bullying and harassment this was “not due to any protected characteristic but rather through an abuse of position”.[19]Based on the above, I am satisfied that the conduct complained of is not alleged to fall under the EQA and the potential claim of breach of s.1 PHA is not one which the employment tribunal has jurisdiction to consider. Breach of Duty of Care leading to personal injury[20]In support of her argument that this claim should continue, the claimant relies upon Essa v Laing [2004] EWCA Civ 02, CA (CSUB para.29). As she rightly says, this establishes that the employment tribunal can award compensation for psychiatric injury flowing from a discriminatory act. Mr Isaacs confirmed that the respondent is not saying that she is unable to pursue a personal injury claim flowing from unlawful discrimination or victimisation.[21]Essa v Laing is about the compensation that can be award in an appropriate case for acts which have been found to be unlawful under the EQA. The EQA establishes the statutory torts of discrimination and victimisation (among others). It is not authority that the employment tribunal has jurisdiction to consider the separate type of complaint of breach of a duty of care. It is about what remedy or compensation is available if the claimant is successful in her complaint that the respondent has committed the statutory torts of discrimination and victimisation.[22]The complaint of a breach of duty of care leading to personal injury, whether under the Health & Safety at Work Act 1974 or common law, can only be brought in the county court or High Court. The employment tribunal has no jurisdiction to consider that complaint as a free standing complaint but the injury alleged by the claimant is one which she potentially could be compensated for if she is successful in one or more of her other complaints. Breach of the Police (Performance) Regulations 2020 and/or the Police Conduct Regulations 2020[23]This claim is articulated in para.173 of the Further and Better Particulars (page 88 – hereafter referred to as the FPBs) where the complaint is that there was a breach of the requirement to provide the claimant with written notice of a first stage meeting when the respondent initiated disciplinary action against her.[24]The Police (Performance) Regulations 2020 have applied since 1 February 2020 where unsatisfactory performance or attendance by a police officer is alleged. They set out what is, in effect, a three stage process for handling allegations of unsatisfactory performance or attendance or gross incompetence of members of police forces of certain ranks including that previously held by the claimant (see Explanatory Note). The Police (Conduct) Regulations 2020 set out a process to be followed where there are allegations of misconduct, gross misconduct or practice requiring improvement (reg.4(1) of the Conduct Regulations). They were made pursuant to the Secretary of States delegated powers under the Police Act 1996, the Police Reform Act 2002 and the Policing and Crime Act 2017.[25]The claimant argues that the Supreme Court’s decision in P v Commissioner of Police for the Metropolis [2017] UKSC 65 permits police officers to lodge claims in the employment tribunal where they face a disciplinary or performance action within a discriminatory context (para.23 CSUB). What P held was that the chief officer (here the respondent) is deemed to be the employer of the police officer (here the claimant) for the purposes of Part 5 EQA because of s.42(1) EQA. Jurisdiction for alleged breaches of Part 5 EQA (work) is with the employment tribunal and acts in exercise of the disciplinary functions of the chief officer fall within Part 5. The claim remains a claim of discrimination (or victimisation as the case may be) under Part 5 EQA and not a free standing claim under the Conduct or Performance Regulations.[26]One of the claimant’s complaints under s.15 EQA is that it was unfavourable treatment for a reason arising in consequence of disability to start absence proceedings. The respondent disputes this. However, were the claimant to show those facts (i.e. that absence proceedings had been started for a reason arising in consequence of disability) then whether or not the responsible officers to whom management of attendance had been delegated, breached the Performance Regulations would potentially be relevant to the success of any defence of justification. I did not understand Mr Isaacs to disagree with this proposition while making clear that, in his words, factually the argument “did not stack up”.[27]The claimant made clear that the argument she was putting forward in relation to alleged breaches reg.15 & 16 of the Performance Regulations was a complaint in itself. I have been shown nothing which makes that a free standing cause of action and nothing which gives the employment tribunal jurisdiction over any such alleged cause of action. This does not prevent the claimant from arguing that action was taken in breach of the Performance Regulations if that is relevant to a complaint in the List of Issues. In the same way, a civilian employee could rely upon a breach of an internal policy if that were relevant to an issue in the case.[28]The employment tribunal does not have jurisdiction to consider a freestanding complaint under the Performance or Conduct Regulations.
The Facts
[29]Ms Harris has assessed hundreds of candidates. She has failed six people in total, including the Claimant. In Ms Harris’s own words [Bundle 480], the other five were “white” and we accept that that description is accurate.[30]At the time she was given the outcome, the Claimant indicated orally to Ms Harris that she was not satisfied with the outcome.[31]Ms Harris’s line manager at the time was Paula Hill who was a Detective Sergeant running the Interview Team based at Hendon. Ms Hill spoke to the Claimant on 21 January 2022. The Claimant stated orally to Ms Hill that she was not satisfied with the assessment decision.[32]The Claimant sent emails to the other two TDCs in her cohort, seeking information and notes from them. She told them she had been unsuccessful. She did not state that she believed that the outcome had been influenced by race (or by any other protected characteristic).[33]The Claimant received a reply from the candidate who had played the role of “second officer” when the Claimant was the main interviewer. He expressed surprise, and said that he thought that the Claimant had done well, and better than he had done. He provided the notes that he had in connection with the interview where the Claimant had been the main interviewer.[34]The Claimant informed Ms Hill in writing that she wished to challenge the outcome. She was told that might be difficult in light of the fact that that there had been no video recording. From the Claimant’s point of view, that made it all the more important that any investigation should take place quickly.[35]Ms Harris produced a document to supply written feedback to the Claimant. It was dated 26 January, so it was probably started on that day. It was finished by no later than 27 January and was sent to Ms Hill by email. Page 12 of 80[36]This was a detailed document and we are satisfied that the contents represent Ms Harris’s genuine recollections and opinions while matters were fresh in her mind. It contains her genuine conscious reasons for the decision that the Claimant was unsuccessful.[37]On 1 February 2022, the document was emailed to the Claimant. Around the same time, it was sent to some others, including the Claimant’s line manager at the time, Bella Davies.[38]The covering email sending the document to the Claimant:38.1 expressed Ms Hill’s opinions, tending to agree with the outcome decision (that is, the fact that the Claimant had failed the assessment) reached by Ms Harris. Ms Hill was, of course, basing that opinion on what Ms Harris had written, there being no video recording.38.2 offered the Claimant the opportunity to discuss matters which the Claimant had raised in emails. By this time, the Claimant had sent an email on 27 January in which she alleged “unconscious bias”. Ms Hill’s 1 February email was an offer to discuss - among other things – that particular allegation.[39]In making this offer, Ms Hill was following the instructions of her own second line manager (ie her line manager’s line manager), DCI Franklin. Ms Hill had forwarded the Claimant’s 27 January email to DCI Franklin seeking advice, and the advice given [Bundle 474] was to take precisely the course of action that Ms Hill did then take, namely to(i) provide a written explanation of why the Claimant had not passed the course and(ii) offer the opportunity to discuss the details of the treatment described in the Claimant’s email.[40]There was then a time gap until the Claimant replied to Ms Hill’s 1 February email. Part of the reason for this time gap was that the Claimant was on annual leave for some of the period. The Claimant replied on 26 February 2022.[41]In the intervening period (after Ms Hill’s 1 February email, and before the Claimant’s 26 February email) the interview notes had been reviewed by Tony Killeen who was a Detective Sergeant in the Interview Training Team. We accept his evidence that, at the time, he did review the notes that Ms Harris had made for each of the three candidates in the cohort on 21 January 2022. In other words, we accept that he saw documents that are not available to us, or to the Claimant, because they were destroyed in accordance with the Respondent’s retention policy. Mr Killeen formed the opinion that there was nothing in those notes that indicated that there had been bias (in favour of the other candidates, or against the Claimant) or that any of the three decisions (to pass the other candidates and fail the Claimant) had been incorrect. Page 13 of 80[42]The Claimant’s 26 February email asked Ms Hill for details of when they could meet to discuss. Following that email, there was no further direct contact from Ms Hill to the Claimant. Unbeknownst to the Claimant, Ms Hill had been told by DI Carrington that there was no need to further engage with the Claimant’s line management. This was on the basis that there was – according to DI Carrington’s email [Bundle 552] on 2 March 2022 – no formal complaint about discrimination.[43]DI Carrington was, at the time, the line manager for each of Ms Hill and Mr Killeen, and the second line manager for Ms Harris.[44]During the course of February, the Claimant’s line manager changed from being Acting Detective Sergeant Davies to being Tim McGowan (“Mr McGowan”) who was, at the relevant time, a Detective Sergeant. Ms Davies supplied Mr McGowan with some emails she had received relating to the outcome of the Interview Course. Mr McGowan discussed the matter with the Claimant. He also exchanged emails with Ms Hill and Mr Killeen.[45]On 9 March 2022, he sent an email which we find accurately described a discussion that he and the Claimant had had the previous day, 8 March 2022.45.1 On 8 March, the Claimant informed Mr McGowan that she was not seeking to challenge the outcome of the assessment in the sense of seeking to have it changed from a “fail” to a “pass”. She accepted, therefore, that she would need to re-take the course. (The Claimant knew, as did Harris, Hill and McGowan that there was no barrier to a TDC taking the course again. Ms Harris’s written outcome document informed the Claimant that she, Ms Harris, would not be the assessor if and when the Claimant did the course again.) The Claimant also accepted that, before retaking the course, she would go through a development plan, and would need to demonstrate sufficient progress.45.2 On 8 March, the Claimant informed Mr McGowan that she still believed that there had been unconscious bias in the process, and that she wanted that to be looked into.[46]Ms Hill’s last day as a police officer was 31 March 2022. She retired. Her successor in the role was Mr Killeen. Outstanding work matters were handed over to him. Nothing connected to the Claimant was handed over by Ms Hill to Mr Killeen as a task which Ms Hill regarded as outstanding. Ms Hill had not replied to the Claimant’s 26 February email, but she regarded that matter as closed.[47]When Mr Killeen started in this new role, around 1 April 2022, DI Carrington did not require Mr Killeen to do anything in connection with matters connected to the Page 14 of 80 Claimant either. His email exchange with Ms Harris [Bundle 601, 600] around 22 April 2022 accurately reflects his understanding of the situation at that time, namely that the Learning and Development team were not planning to take any further action on the matter.[48]On 5 April 2022, the Claimant attempted to contact Ms Hill by email. She probably did not get an auto-reply which specifically stated that Mr Killeen was her successor, and nor were emails to Ms Hill’s address automatically forwarded to Mr Killeen. (We note that Mr McGowan also sent an email to Ms Hill after her retirement date, and he then decided to contact Mr Killeen because he was aware that Mr Killeen had had some involvement in February, not because any auto-reply had told Mr McGowan that Mr Killeen was Ms Hill’s successor.) On the balance of probabilities, the Claimant did not send an email directly to Mr Killeen after Ms Hill’s retirement. She believes that she did so, but Mr Killeen has checked and been unable to find such an email – and also has no recollection of it – and thus we find that the Claimant has made an honest mistake in her recollection.[49]In due course, the Claimant submitted a grievance. It was sent to the correct email address. The Respondent has a specific department that deals with formal grievances, that is grievances which have not been resolved informally between the officer and their line management. Formal grievances have to be sent to that department, and the Respondent does not regard them as formal grievances unless and until that is done. There is a specific form that can be used. We are satisfied that the email at [Bundle 626] was correctly submitted by the Claimant, in accordance with the Respondent’s procedures, to be treated as a formal grievance. It was sent to the appropriate address and was received by that team. One of the attachments to that email was [Bundle 628], the contents of which speak for itself.49.1 Amongst other things, the Claimant made clear that she remained dissatisfied with the way she was treated during the assessment following the interview course.49.2 She makes no reference to having attempted to contact Mr Killeen about the matter.49.3 She does refer to having discussed with Mr McGowan, and what she says is consistent with what we have said above in these findings of fact. It is also consistent with what the Claimant has subsequently said about the conversation with Mr McGowan on 8 March 2022.[50]The Respondent did not reply to the Claimant’s grievance. We accept - based on the documents in the ACAS bundle – that, for whatever reason, the Grievance Management Team (“GMT”) was unable to locate the Claimant’s email within Page 15 of 80 their files when Sergeant Shane Joshua [who was liaising with ACAS on behalf of the Respondent, in connection with the early conciliation which commenced on 7 May 2022 and continued until 17 June 2022] contacted GMT. We accept the accuracy of the comments made in emails from GMT to Sgt Joshua about the attempts which GMT made to locate the Claimant’s grievance, and about the fact that those attempts were unsuccessful.[51]During early conciliation, the Claimant sent a copy of the grievance to the ACAS officer, and the ACAS officer sent it to Sgt Joshua, and Sgt Joshua sent it to GMT. So GMT did have the grievance by no later than June 2022, but they did not contact the Claimant about it.[52]On approximately 25 February 2022, [Bundle 1362], the Claimant’s colleague TDC Archie Wiggs wrote to Jack Stillwell, effectively making a complaint about Mr McGowan. Mr Stillwell was an acting inspector at the time, and was Mr McGowan’s line manager. Mr Stillwell had briefly been the Claimant’s line manager when she commenced in the TDC scheme, before he handed that over to Ms Davies.[53]The email from Wiggs attributes some alleged quotes to Mr McGowan, that were said to have been made shortly before Wiggs sent the email. Mr McGowan does not necessarily accept that he said the exact words in quotation marks as per Wiggs’ email. However, in general terms, he accepts that he was dissatisfied with the performance of that particular team and that he said so to them.[54]TDC Wiggs had copied in the Claimant and TDC Suzie Healey. On 26 February 2022, [Bundle 1361], in the same email trail, the Claimant also wrote to Mr Stillwell, copying in Wiggs and Healey, saying that she was also dissatisfied with Mr McGowan’s conduct. In particular, one thing raised by the Claimant was that – while it was a requirement of the TDC programme that, to successfully be appointed as a Detective Constable at the end of it, the TDC had to document that they had successfully completed three investigations from start to finish – she had identified a particular investigation that she thought she could use for that purpose, and had asked Mr McGowan to assign that case to her, but he had allocated it to Wiggs instead.[55]Mr Stillwell replied to say that he would think about what the Claimant had said.[56]We accept that Mr Stillwell did speak to Mr McGowan about the matters raised by her and TDC Wiggs. We have a full transcript of a meeting between the Claimant, Mr Stillwell and Acting Inspector Daniel. The Claimant covertly recorded that meeting (in April 2022) without the knowledge of Daniel or Stillwell. It is clear in that conversation that each of Daniel or Stillwell are expressing the opinion (regardless of whether their opinions were justified or not) that Mr McGowan can potentially be perceived as being difficult to work with. Page 16 of 80[57]The TDCs working, at that time (February to June 2022) with the Claimant, and with Mr McGowan as line manager, did not have the same protected characteristics as the Claimant. None of the others were Latin American or Brazilian. One of the TDCs – Healey – was a woman, the others (including Wiggs and including O’Connor) were men.[58]Our finding is that, as of February 2022, it was the Claimant’s opinion and also Wiggs’ opinion that all the TDCs on the team were being treated equally badly by Mr McGowan. (We note that the Claimant alleges that a male TDC, TDC Sam, was treated better than her and Healey, on 8 June 2022 but this was not a specific complaint in list of issues and was not an allegation that made in February, March, April or May 2022)[59]Because the Claimant was approaching two years as police officer, and because Mr McGowan was – at that time – her line manager, he received some automated emails reminding him that formal decisions were required in relation to the Claimant’s probation. That is, the Respondent had to make a formal decision one way or the other, either to confirm she had passed probation, terminate her service, or extend probation.[60]One such reminder was sent 19 February 2022 [Bundle 1360], telling Mr McGowan that the Claimant had reached 20 months’ service, and giving him instructions and information. Another was 6 March 2022 [Bundle 1365]. This included: You are receiving this second notification as you have not responded to the first. Please be aware that if there is no further response, the next notification will be forwarded to your line manager in 7 days.[61]Mr McGowan did contact HR. In due course, he was put in touch with Lola Lamuren [Bundle 1366]. They had back and forth correspondence about the Claimant’s probation.[62]On the facts, it is proven by the Respondent that the reason for this correspondence was that62.1 Firstly, that Mr McGowan received the auto-reminders.62.2 Secondly, that he wanted HR advice about SOROCs. In particular, he had some concerns that it appeared that(a) some of the SOROCS requirements had not yet been met by the Claimant and(b) they were the type of thing that a constable in uniform might come across from time to time during a routine shift, but were not the type of thing that a detective constable would usually encounter.[63]In April 2022, the Claimant made a flexible working request. That request was refused by Mr McGowan. He refused it very quickly after she made it. Page 17 of 80[64]In connection with the refusal, and the reasons for it, and the Claimant’s queries about the refusal, there was some mutual confusion at the time. Each of them sent replies to emails which did not actually go to the other person, but instead simply went to the email address used by the HR software when sending out particular notifications. In due course, Mr McGowan realised what had happened, and sent an email directly to the Claimant which set out what he said were his reasons for refusing the application.[65]The Claimant spoke to Mr Stillwell. Amongst other things, Mr Stillwell said to the Claimant that she ought to have discussed the matter with Mr McGowan before submitting the formal request via the Respondent’s HR software. He also told her that, now that Mr McGowan had refused the request, if she was dissatisfied with that decision, then she should speak directly to Mr McGowan about it.[66]Following these exchanges, on 6 April 2022, at 19.06 [Bundle 599], Mr Stillwell sent an email to Mr McGowan attaching the recent correspondence between Mr Stillwell and the Claimant. We find that the attachments were [Bundle 591 to 598], and only those items. Thus the attachments did not include the complaints that had been made by TDC Wiggs or the Claimant in February.[67]In the 6 April email, Mr Stillwell said – accurately – that the Claimant had informed him that she was considering leaving the TDC scheme. He commented on that with the words, “… not a bad idea if you ask me.”[68]Mr McGowan replied a minute later to say: I’ll have a read, but I’m in complete agreement with your sentiments, and mirrored by those of at least two other supervisors recently. Very keen to have this discussion with her, so it can be addressed.[69]We mentioned above that there was a meeting between the Claimant, Stillwell and Daniels and that the Claimant made an audio recording. That meeting was on 22 April 2022, so two weeks after the email exchange between Mr Stillwell and Mr McGowan that we have just referred to.[70]By 22 April 2022, Mr Stillwell was no longer part of the Claimant’s line management, and Acting Inspector Daniels was now Mr McGowan’s line manager (that is, in the role that Mr Stillwell had previously held).[71]Mr Stillwell therefore had no formal decision-making responsibilities in connection with the matters that were to be discussed on 22 April 2022. However, we accept his evidence that he was there71.1 partly because he knew the Claimant from when he had been her line manager, and partly because he had quite recently been Mr McGowan’s line manager, and had had the interactions mentioned above, and Page 18 of 8071.2 partly because Inspector Daniels had only recently been appointed to act as Inspector, and wished to benefit from the support and guidance that Mr Stillwell could give.[72]The Tribunal has taken into account the full transcript [Bundle 1528 to 1569], not just the parts that were specifically highlighted in the written statements or oral evidence. The accuracy of it is not in dispute between the parties and we do not need to quote extensively from it.[73]At least part of the reason for the meeting was that Stillwell / Daniels intended to express some concerns to the Claimant about the way that she was phrasing some emails, and to tell her that they might be seen as being disrespectful to more senior officers.[74]It was a wide ranging discussion. One significant topic was the Claimant’s suggestion that she might wish to leave the TDC scheme. Contrary to what Mr Stillwell had said to Mr McGowan in the 6 April email (which was not seen by the Claimant at the time), on 22 April 2022, Mr Stillwell and Mr Daniel made significant efforts to persuade the Claimant to decide to remain in the scheme. Amongst other things, they spoke about the possibilities of rotations, and how that would mean that she would no longer be reporting to Mr McGowan. They also said that, in any event, if she were to leave the TDC scheme, and return to uniform, then there was just as high a possibility that she might have a future line manager that she did not get on with.[75]We are satisfied that, during the meeting, Stillwell and Daniel were not seeking to tell the Claimant that she, the Claimant, was to blame for difficulties in the working relationship between her and Mr McGowan. Rather they were trying to persuade her to look at matters from a different perspective, regardless of whether it was a perspective that the Claimant agreed with or not.[76]If it were necessary for us to make a decision about whether Mr Stillwell had genuinely changed his mind since 6 April 2022, and now genuinely did not think that it was a good idea for the Claimant to leave the TDC scheme, then we would not necessarily have been persuaded of that. However, it suffices to say that – even apart from the fact that he had no formal role to play – on the face of what he said, he was putting forward sensible and rational reasons that the Claimant might wish to think about staying in the TDC scheme, rather than returning to uniform. Further, he made these comments without being aware that he was being recorded.[77]In the course of the discussion, the Claimant’s probation period was discussed. There was a discussion about whether it would be extended. The two alternative scenarios, the Claimant returning to uniform and the Claimant remaining in TDC scheme, were each spoken about in that context. Page 19 of 8077.1 It was suggested that extension of probation could be an advantage to her if she did go back to uniform. It was pointed out that, once in uniform, and if her probation had been passed, she would be treated as a fully qualified police constable who could be assigned any suitable duties, including lone working.77.2 It was also discussed that there were certain things that the Claimant would have to complete – regardless of whether she went back to uniform or remained as a TDC – before being deemed to pass probation.[78]Our finding is that the Claimant was not informed that her performance was “bad” or that she was going to fail probation because of poor performance. There were discussions about the formalities. There are regulations which deal with the probation period for police officers and it is clear to us that the Claimant had a full understanding, at the time, about what the process required. As was discussed in the meeting, it was a formal process that required formal sign off by senior officers (more senior that Stillwell or Daniels). There was also an appeal process.[79]Our finding is that the Claimant was not told that it was inevitable (or even likely) that her probation would be extended if she did not want that. Rather it was highlighted to her that extension was one possible option if she wanted it. They did not expressly rule out a compulsory extension, but the general gist was simply to discuss it as an option that the Claimant could agree to, and, in particular, that she could request that if she did decide to return to uniform.[80]The upshot was that the Claimant was told that she should go away and think and come back to Daniels if she wished to formally confirm a decision to leave the TDC scheme and return to uniform. The ostensible reason for offering her this period was that they were suggesting that she was possibly being too hasty and – by implication – that if she were to remain in the TDC scheme she could eventually pass it and be formally appointed as a detective constable.[81]Immediately after the meeting, the Claimant ran into TDC O’Connor and had a discussion. She told him that she had been offered time to make up her mind, but she did not need it. She told him that she was already firm in her decision to go back to uniform.[82]After that, she also spoke to Mr McGowan. Mr McGowan said that he was aware that she had been offered some time to think things over. The Claimant told him that she did not need it and had made up her mind.[83]As a result of the Claimant’s decision to return to uniform, a transfer date in June 2022 was fixed. Page 20 of 80[84]Had the Claimant remained in the TDC scheme, she would have been rotating to another team, the CAIT team, in June 2022. If she stuck to the planned schedule, she would move to that team, be in it for about two weeks, and then leave to return to uniform. The Claimant suggested that she not make that rotation and that she instead remain in the current CID team until the date for her move back to uniform. The Respondent agreed to that.[85]The Claimant’s case is that, in advance of the move to CAIT, she completed a vetting form, and that, on that form, she notified the Respondent of her PTSD. She has not proven that to our satisfaction. However, and in any event, whether she did so or not, the contents of that form did not come to the attention of Mr McGowan, Mr Stillwell, Ms Evans, or any of the Claimant’s other line managers, or the attention of anyone involved in the decision-making process for the Interview Course.[86]During a night shift that started on 9 June 2022, the Claimant sent an email in the early hours of 10 June 2022 to Inspector Young. She said she needed to go home from the shift. She said that it was potentially sickness absence for mental health reasons, and was because she could not work with Mr McGowan.[87]The Claimant then started a period of sickness absence. The absence started when she went home during that shift, but the official start date in the Respondent’s records was from her next scheduled shift, 12 June 2022. It lasted until 27 June 2022.[88]After that shift on 9/10 June 2022, the Claimant did not return to work on Mr McGowan’s team. By the date of the return to work, she was back in the uniform branch and her line manager was Michelle Evans, who was a sergeant (having been promoted to that rank around three months earlier).[89]Prior to the Claimant’s transfer to Ms Evans’ team, Ms Evans was not informed that there was any outstanding grievance issue for her to deal with. She was aware that the Claimant was on sick leave as of the transfer date, but it was her opinion that, in the circumstances, it was for Mr McGowan to sign off that period of absence (as, in her opinion, it would have fallen to him to take any required steps during the sickness absence period).[90]Mr McGowan did in fact complete the documentation to formally record the end date of the sickness absence.[91]After the Claimant had started on Ms Evans’s team (so after her return from sickness absence), there were a series of emails between the Claimant and Mr McGowan about the handover of case files. Ms Evans was copied in on some of these emails. Page 21 of 80[92]The Claimant had put the files in a tray in the office rather than actually putting them into the hands of Mr McGowan or anyone else in the team. In the email exchange, the Claimant said she felt “safer” dealing with Mr McGowan remotely rather than meeting him face to face. The Claimant did not ask Ms Evans to do anything about that and Ms Evans did not think it was necessary for her to ask the Claimant to clarify what she meant, or to propose to take any action about the remark.[93]The Claimant worked on Ms Evans’ team during July 2022. During August 2022, the Claimant took some unpaid parental leave. She returned to work on Ms Evans’ team in the remainder of August, and the first part of September.[94]The Claimant commenced a period of sick leave on 15 September 2022. She supplied a Fit Note for that absence. The reason given was emotional stress and anxiety.[95]The Claimant had discussed the possibility of flexible working with Ms Evans after she joined the team. Ms Evans spoke positively about the possibility, including mentioning that she had used it, and directed the Claimant to the Respondent’s relevant policies.[96]Ms Evans had a period of absence, and Sergeant Cox temporarily covered for her. The Claimant had a discussion with Sergeant Cox about the possibility of applying for a career break.[97]The Claimant returned from sick leave. On about 27 October 2022, when she was not on sick leave, she formally submitted the application for a career break.[98]The application was approved. It is not disputed by the Claimant, and it is mentioned in Particulars of Complaint amongst other places that it was approved. In the hearing bundle, there is a letter dated 1 November 2022 [Bundle 694]. That says that the application for a break from 25 January 2023 to 25 January 2025 has been approved. These are the dates that the Claimant had requested in her application. We do accept that the reason she put down 25 January 2023 as the requested start date was that the earliest start date she could ask for, given the timing of her application form, and the requirements of the scheme. The scheme stated that she had to give three months’ notice. However, regardless of the Claimant’s reasons for putting that start date in the application form, it is the date that she requested, and the requested dates were approved.[99]The letter included a form which the Claimant was supposed to sign, and that form included various declarations. The correspondence stated that the offer would be withdrawn if the Claimant failed to complete the form. The letter did not state that the offer would be withdrawn for other reasons; in particular, the Page 22 of 80 letter did not state that the offer would be withdrawn if the Claimant had sickness absence between the offer date and the intended start date for the career break.[100]Having been back at work for a few shifts in late October, the Claimant was then absent from approximately 31 October 2022 and did not work again prior to the end of her employment. On the Claimant’s case, this ought to be seen as a continuation of the sickness absence period that commenced on 15 September 2022. On the Respondent’s case, her return to work ended that absence period, and there was a new absence period commencing from 31 October.[101]During the Claimant’s absence, there was frequent correspondence between the Claimant and Ms Evans by WhatsApp. There was also some correspondence between the Claimant and Sergeant Cox.[102]Amongst other things, it was suggested that there would be an Occupational Health referral. The Claimant was called by Occupational Health, but did not answer the phone call.[103]It was also suggested to the Claimant that there would need to be a case conference. In other words, a meeting of a type whose purpose is set out in the Respondent’s sickness absence policies. No specific date was fixed for that, it was simply flagged up as something that would be needed. We infer that Ms Evans envisaged receiving the Occupational Health report first.[104]A letter dated 17 October 2022 was generated to comment to the Claimant that it appeared that she had had 3 periods of absence in the previous 12 months and to comment on what the Respondent’s policies said about instances of 4 separate periods of absence within 12 months.104.1 The Claimant’s absence record is [Bundle 1300].104.2 Because of the absences from 16 November 2021 to 20 November 2021, from 12 June 2022 to 27 June 2022, and from 15 September 2022 to 17 October 2022, the Claimant would hit a trigger in the formal written policy if she commenced a fourth absence prior to approximately 16 November 2022.104.3 Although the letter was generated (and dated) 17 October 2022, as a result of the ending of the period which commenced on 15 September, the letter was not actually sent to the Claimant by Ms Evans until 1 November 2022.104.4 As far as the Respondent is concerned, 31 October 2022 is the start of a new period (and so the fourth absence period within 12 months) and thus, on the Respondent’s case, the Claimant had commenced that fourth absence by the time the 17 October letter was forwarded to the Claimant by Ms Evans. Page 23 of 80104.5 If any standard letter was generated to formally notify the Claimant that a fourth period was now underway, and that she had – therefore – hit that particular trigger, then it has not been drawn to our attention.104.6 However, as we have said, regardless of which specific trigger points the Claimant and/or Ms Evans thought had been reached, during the absence which commenced on 31 October 2022, Ms Evans did suggest Occupational Health referral and did say that a case conference would be required.[105]On 8 November 2022, the Claimant left the UK. She did not inform Ms Evans beforehand, or immediately afterwards.[106]The Claimant had already been told, prior to 8 November 2022, that, prior to the start date for a career break, she would need to hand in her warrant card, as well as laptop and certain other equipment.[107]In the period immediately after 8 November 2022, the Claimant and Ms Evans continued to correspond. The Claimant knew that she was in Brazil at the time, and the Claimant knew that Ms Evans did not know that. The correspondence included discussions about the need for Occupational Health advice and about the need for the Claimant to hand in the warrant card.[108]The Claimant’s resignation email was submitted on 24 November 2022 at 14.08, and stated that the last day of employment (using the word loosely) would be 31 December 2022.[109]It was not until after 1 December 2022, when Ms Evans suggested a firm date (of the following day) for the Claimant to come in and hand in the warrant card [Bundle 799] that the Claimant replied to say that she could not do so because she was in Brazil. On 5 December, the Claimant wrote: Hi sarge, I'm in Brazil so won't be able to pop in until later in the month when I return briefly to the UK to tie a few things up. I will let you know when I do, but it should be before the end of the month[110]So, as well as this being the first time that the Claimant told the Respondent that she was out of the country, it was also stated that she would be able to hand the warrant card back fairly soon.[111]Ms Evans replied that it was the Claimant’s responsibility to hand the card in before 31 December and that she was disappointed that the Claimant had failed to say – in her responses to earlier communications – that she was out of the country. The Claimant replied disputing that there was any wrongdoing in connection with what she had stated or implied in her earlier replies. She also pointed out – accurately – that if the obligation was to return the warrant card on or before 31 December 2022 then she was not as yet (14 December) in breach Page 24 of 80 of the policy which Ms Evans had mentioned (a policy which the Claimant denied she had been told about). She also said that she would contact Ms Evans in the next few days about the date to hand over the warrant card.[112]After that, there was sporadic correspondence between the Claimant and Ms Evans about the warrant card. Initially, it was the Claimant’s suggestion that she send it to the Respondent by post. Ms Evans replied to say that she did not think that was appropriate.[113]At the time, Ms Evans was envisaging that the Claimant would be returning to the UK in the foreseeable future, and she thought that it was better for the Claimant to personally bring the warrant card back with her (and physically hand it in) when she did so. Our finding is that it is was clear from the correspondence that she was under the impression that the Claimant was only temporarily in Brazil and that the Claimant knew that Ms Evans was under that impression. Our assessment is that it would not have been a reasonable inference for anyone to draw – from what Ms Evans wrote on the topic – that she was telling the Claimant to keep the warrant card indefinitely, even if she, the Claimant, decided to remain in Brazil rather than return to the UK. We are satisfied that the Claimant did not think that Ms Evans had intended such a meaning.[114]Once it became apparent to Ms Evans that the Claimant was not planning to return to the UK in the near future, various other communcations in relation to the warrant card were sent.[115]The Claimant commenced a second period of early conciliation on 5 January 2023. She presented a claim to Employment Tribunal on 18 February 2023. In connection with its defence to the claim, the Respondent instructed a firm of solicitors called Gowling. Gowling wrote to the Claimant on 11 April 2023 [Bundle 1503] saying that their client was considering filing a theft report if the warrant card was not returned.[116]The Claimant objected to that course of action. She was informed again that the Respondent was still considering doing so on 11 May 2023 [Bundle 1506].[117]On instructions from senior officers, Ms Evans did file a theft report. We have the documents from the Respondent’s case management system in connection with that matter in the hearing bundle.[118]Later, it was agreed that a satisfactory method was for the Claimant to supply the warrant card to the UK consulate in Brazil. That was done and, in due course, the theft report was closed on the case management system. Eventually it was recorded that there had been no crime. However, prior to that, as against the Claimant, it had been recorded that there was insufficient evidence to proceed with a prosecution. Page 25 of 80 The Law Equality Act 2010 (“EQA”)
The Law
[119]The burden of proof provisions are codified in s136 EQA. Section 136 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.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[120]It is a two stage approach.120.1 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 potentially 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.120.2 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.[121]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.[122]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. Page 26 of 80[123]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 a protected act. Those things only indicate the possibility of discrimination or victimisation. They are not sufficient in themselves to shift the burden of proof; something more is needed.[124]It does not necessarily have to be a great deal more: Denman v Commission for Equality and Human Rights 2010 EWCA Civ 1279. For example - depending on the facts of the case - 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 EAT 0497/12, the EAT upheld a tribunal’s decision that the burden of proof shifted based on a finding that the employer had given a false explanation for 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 EAT 0074/19.[125]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.[126]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.126.1 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.126.2 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. Time Limits for EQA complaints[127]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— Page 27 of 80 (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— (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[128]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.[129]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.[130]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 is taken into account, and it might be outweighed by other factors.[131]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) of the Equality Page 28 of 80 Act 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.[132]The factors that may helpfully be considered include, but are not limited to:132.1 the length of, and the reasons for, the delay on the part of the Claimant;132.2 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;132.3 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[133]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. Definition of Direct Discrimination – section 13 EQA[134]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.[135]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”).[136]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.[137]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 Page 29 of 80 need to be consideration of whether the “bad” treatment is comparable to the way in which others were treated. However:137.1 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.137.2 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.[138]The Tribunal must seek to identify who took the relevant decisions and who is responsible for the relevant omissions. That might be a single individual, if there are acts/omissions by several people, it will be necessary to seek to identify all of those persons.[139]Once the Tribunal does identify the particular individuals responsible for a particular act or omission, it examines their reasons, including any subconscious reasons. Discrimination arising from disability – s15 EQA[140]Discrimination arising from disability is defined in s.15 EQA. 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.[141]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 Page 30 of 80 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.[142]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.[143]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.[144]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[145]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.[146]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 Page 31 of 80 efficiency may be legitimate aims, but simply demonstrating that one course of action was less costly than another is not likely to be sufficient.[147]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.[148]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.[149]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.[150]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.[151]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.[152]Section 136 EQA applies to alleged contraventions of section 15 EQA. Indirect discrimination[153]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— (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, Page 32 of 80 (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.[154]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.[155]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.[156]In Onu v Akwiwu; Taiwo v Olaigbe [2016] UKSC 31, the Supreme Court pointed out that a PCP must apply to all employees and that a practice of mistreating workers specifically because of a protected characteristic, or something closely connected to the protective characteristic, would not fall within the definition of PCP because it would necessarily not be applied to individuals who were not so vulnerable. Further, in James v Eastleigh BC [1990] HL/PO/JU/18/250, the policy was, at first sight, neutral between the sexes, but, on proper analysis the qualification criteria was so closely linked to sex that it amounted to direct, rather than indirect, discrimination.[157]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.[158]There are two aspects to the “particular disadvantage” limb of the test for indirect discrimination.158.1 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.158.2 that the Claimant must personally be placed at that disadvantage.[159]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. Page 33 of 80[160]In Dobson v North Cumbria Integrated Care NHS Foundation, UKEAT/0220/19/LA the EAT reviewed the law, and gave guidance, about when judicial notice may be taken of information that a Claimant alleges shows, to helps to show, that there is a group disadvantage.[161]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.[162]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.[163]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.[164]Once a legitimate aim has been established, the tribunal must consider whether the discriminatory PCP is a proportionate means of achieving that aim.[165]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.[166]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.[167]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 Page 34 of 80 a discriminatory PCP. The existence of an alternative is only one factor to be taken into account when assessing proportionality.[168]The tribunal must make an objective determination and not (for example) apply a range of reasonable employers test.[169]In Hardy & Hansons plc v Lax [2005] EWCA Civ 846, the Court of Appeal gave relevant guidance.[170]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. Failure to make reasonable adjustments,[171]Section 20 defines the duty. Section 21 and schedule 8 also apply. 20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (6) Where the first … requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format. 21 Failure to comply with duty (1) A failure to comply with the first … third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3) A provision of an applicable Schedule which imposes a duty to comply with the first … requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise. Schedule 8, Part 3, paragraph 20: Lack of knowledge of disability, etc. (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— Page 35 of 80 (b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.[172]The expression “provision, criterion or practice” (usually shortened to “PCP”) is not expressly defined in the legislation. We have regard to the guidance given by EHRC to the effect that the expression should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, pre-requisites, qualifications or provisions.[173]The Claimant must clearly identify the alleged PCPs to which the adjustments should have been made. The tribunal must only consider those PCPs as identified. See Secretary of State for Justice v Prospere [2015] UKEAT 0412/14/3004.[174]An expectation that employees ought to behave in a certain way, and that doing otherwise would be frowned upon, can potentially be sufficient to show there is a PCP, even if the employer did not enforce the expectation by any formal sanction.[175]The word practice has something of the element of repetition about it. As per Ishola v Transport for London [2020] EWCA Civ 112, one off decisions made for individual employees might demonstrate that there is a PCP, provided the Tribunal is satisfied that there is sufficient evidence that the employer would take a similar approach in the future.[176]When considering whether there has been a breach of s.21, the Tribunal must precisely identify the nature and extent of each disadvantage to which the Claimant was allegedly subjected. Furthermore, the Tribunal must consider whether there is a substantial disadvantage when the relevant alleged PCP is applied to the Claimant in comparison to when the same PCP is applied to persons who are not disabled.[177]The Claimant has the burden of establishing a prima facie case that the duty to make reasonable adjustments has arisen and that there are facts from which it could reasonably be inferred that the duty may have been breached. If she does then we need to identify the step or steps (if any) which the Respondent could have taken to prevent the Claimant suffering the disadvantage in question, or to reduce that disadvantage. If there appear to be such steps, then the burden is on the Respondent to show that the disadvantage could not have been eliminated or reduced by such potential adjustments or, alternatively, that the adjustment was not a reasonable one for it to have had to make.[178]The Tribunal should take into account everything that is relevant when assessing reasonableness. The EHRC Code provides some guidance and examples. The type of factors that can be looked at include, but are not limited to: Page 36 of 80178.1 the extent to which taking the step would prevent the effect in relation to which the duty was imposed (i.e. the effectiveness of the step)178.2 the extent to which it was practicable for the employer to take the step178.3 the financial and other costs that would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of its activities178.4 the extent of the employer’s financial and other resources178.5 the availability to the employer of financial or other assistance in respect of taking the step178.6 the nature of the employer’s activities and the size of its undertaking[179]There is no breach of s.21 if the employer did not know and could not reasonably have been expected to know, that the Claimant had the disability.[180]Furthermore, in relation to a particular disadvantage, there is no breach of s.21 if the employer did not know and could not reasonably have been expected to know, that the PCP would place the Claimant at that disadvantage. Victimisation[181]Section 27 EQA reads in part:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.[182]There is an infringement if(a) a Claimant has been subjected to a detriment and(b) she was subjected to that detriment because of a protected act. The alleged victimiser’s improper motivations might be unconscious or conscious.[183]A person is subjected to a detriment if they are placed at a disadvantage. There is no need to prove that their treatment was less favourable than another’s.[184]In terms of what constitutes a protected act, a broad interpretation should be applied to “any other thing for the purposes of or in connection with this Act” as per 27(2)(c). It is not a requirement that the alleged protected act involves an Page 37 of 80 assertion that there has been a breach of the Equality Act, since that is covered by s 27(2)(d).[185]As per section 27(2)(d), an act may be a protected act where the allegation is either express or implied. There is no requirement for the Claimant to have specifically mentioned the phrase “Equality Act” or to have used specific words such as “discrimination” or “disability”. However, to be a protected act in accordance with 27(2)(d) the allegation relied on must assert facts which, if true, could amount to a breach of Equality Act 2010. Where an employee makes an allegation of wrongdoing by the employer, but without asserting (either expressly or by implication) that the wrongdoing was a breach of EQA then the allegation does not fall within section 27(2)(d).[186]To succeed in a claim of victimisation the Claimant must show that she was subjected to the detriment because she did a protected act (or because the employer believed she had done or might do a protected act). Where there has been a detriment and a protected act then that is not sufficient, in itself, for the complaints of victimisation to succeed. The tribunal must consider the reason for the Claimant’s treatment and decide what (consciously and/or subconsciously) motivated the employer to subject the Claimant to the detriment. This will require identification of the decision-maker(s) and consideration of the mental processes of the decision-makers. If the necessary link between the detriment suffered and the protected act is established, the complaint of victimisation succeeds. The Claimant does not succeed simply by establishing that “but for” the protected act, she would not have been subjected to the detriment.[187]The Claimant does not have to persuade us that the protected act was the only reason for the dismissal or other detriment. If the employer has more than one reason for the dismissal (or other detriment), the Claimant does not have to establish that the protected act was the principal reason. The victimisation complaint can succeed provided the protected acts have a “significant influence” on the decision making. For an influence to be “significant” it does not have to be of great importance. A significant influence is rather “an influence which is more than trivial”. See Igen v Wong 2005 ICR 931 and Villalba v Merrill Lynch and Co Inc 2007 ICR 469.[188]A victimisation claim might fail where the reason for the dismissal (or other detriment) was not the protected act itself but some feature of it which could properly be treated as separable, such as the manner in which the protected act was carried out. See Martin v Devonshires Solicitors 2011 ICR 352.[189]Section 136 applies to victimisation complaints. Therefore, the initial burden is on the Claimant to show that there are proven facts from which the tribunal could decide, in the absence of any other explanation, that the Respondent has Page 38 of 80 contravened section 27. If the Claimant does that, the burden then passes to the Respondent to prove that victimisation did not occur. If the Respondent is unable to do so, the tribunal is obliged to uphold the claim. Constructive Dismissal[190]Section 39(7)(b) EQA refers to something colloquially known as “constructive dismissal”. In order to prove constructive dismissal the employee must prove190.1 that the employer has committed a serious breach of contract and190.2 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) and190.3 that the employee must also prove they has not waived the breach by affirming the contract.190.4 In London Borough of Waltham Forest v 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 breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship (emphasis added). 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” (emphasis added). 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 Page 39 of 80 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.”[191]The implied term 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” is one which the employee can allege was breached by a single incident or by the cumulative effect of different treatment.[192]“Last straw” arguments do not do away with the need for the employee to establish that there has been a fundamental breach of contract, but are significant when considering – based on the specific incident which caused the employee to resign – whether the employee resigned because of the fundamental breach.[193]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.[194]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 and that 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.[195]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. 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? Page 40 of 80[196]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.[197]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.[198]Where an employee succeeds in the argument that there was a constructive dismissal, then the dismissal “reason” is the employer’s reason for the conduct which caused the employee to treat themselves as dismissed.[199]In considering discriminatory dismissal arguments, we must take care not to confuse tests for whether a dismissal was a breach of the Equality Act with tests for whether the dismissal was unfair contrary to the Employment Rights Act.[200]Not every tortious act amounts to a repudiatory breach of contract. Even if a tribunal finds that an employee suffered an act discrimination and that they resigned in response to that incident of discrimination, it would be an error of law to decide that such conclusions must mean that a decision that there was a constructive dismissal automatically follows. Amnesty International v Ahmed 2009 ICR 1450, EAT.[201]In this case, the repudiatory breach relied upon is that there was an alleged breach of the term requiring trust and confidence. If the Tribunal decides that that term was breached, and that the Claimant resigned in response to that breach, and it has also decided that some (or all) of the conduct that caused that breach amounted to discrimination, then it follows that the (constructive) dismissal was a contravention of section 39(2)(c) EQA. Flexible Working[202]Part 8A the Employment Rights Act 1996 ("ERA") is headed “flexible working”. Section 200 ERA specifies that some sections of that act do not apply to police officers. However, Part 8A is not excluded.[203]Section 80F describes the statutory right to make a request for a change of terms and conditions of employment. Section 80G describes the employer’s duties when such an application is made. There are limitations placed on the reasons Page 41 of 80 for which a request might be refused, and there are timescales within which a decision on the application must be made and notified to the employee.[204]Section 80H reads (in part): 80H Complaints to employment tribunals (1) An employee who makes an application under section 80F may present a complaint to an employment tribunal— (a) that his employer has failed in relation to the application to comply with section 80G(l) (b) that a decision by his employer to reject the application was based on incorrect facts or (c) that the employer's notification under section 80G(1D) was given in circumstances that did not satisfy one of the requirements in section 80G(1D)(a) and (b). … (3) In the case of an application which has not been disposed of by agreement or withdrawn, no complaint under subsection (1 )(a) or (b) may be made until— (a) the employer notifies the employee of the employer's decision on the application, or (b) if the decision period applicable to the application (see section 80G(1B)) comes to an end without the employer notifying the employee of the employer's decision on the application, the end of the decision period. (3C) A complaint under subsection (1)(c) may be made as soon as the notification under section 80G(1D) complained of is given to the employee (5) An employment tribunal shall not consider a complaint under this section unless it is presented — (a) before the end of the period of three months beginning with the relevant date, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (6) In subsection (5)(a), the reference to the relevant date is a reference to the first date on which the employee may make a complaint under subsection (1)(a), (b) or (c), as the case may be. (7) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (5)(a). Early Conciliation and Time Limits[205]Section 207B ERA applies to time limits referred to in ERA. It provides in part:(1) This section applies where this Act provides for it to apply for the purposes of a provision of this Act …(2) In this section - Page 42 of 80 (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving … the certificate issued under subsection (4) of that section.(3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.(4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.(5) Where an employment tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section.”.[206]Section 140B EQA contains similar provisions that apply to amend the time limits referred to in section 123 EQA.[207]Section 18A of the Employment Tribunals Act 1996 provides In part): (1) Before a person (“the prospective Claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective Claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter. … (4) If - (a) during the prescribed period the conciliation officer concludes that a settlement is not possible, or (b) the prescribed period expires without a settlement having been reached, the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective Claimant. … (8) A person who is subject to the requirement in subsection (1) may not present an application to institute relevant proceedings without a certificate under subsection (4). … (10) In subsections (1) to (7) “prescribed” means prescribed in employment tribunal procedure regulations.”[208]The prescribed period is the period provided for in the Rules scheduled to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 (“the 2014 Regulations”).[209]In Compass Group UK & Ireland Ltd v Morgan [2017] ICR 73, the EAT decided that the word “matter” in section 18A(1) of the Employment Tribunals Act was very broad and could embrace a range of events, including events that had not Page 43 of 80 yet happened when the early conciliation process was completed. The EAT pointed out - at paragraph 21 – that Parliament had not chosen to limit the scope of an early conciliation certificate, either by requiring it to relate to past events or by providing for it to be time limited, i.e. to lapse after a certain amount of time.[210]The decision about whether a party had obtained a certificate relating to the same “matter” about which the proceedings were commenced is a question of fact for the Tribunal giving the words in section 18A(1) their ordinary meaning.[211]Further, as per HMRC v Serra Garau UKEAT/0348/16, once an individual has obtained a certificate relating to a particular “matter”, it is neither necessary nor appropriate for them to obtain a further certificate for the same “matter”, no matter how long elapses between the date of the certificate and the date on which the claim form is presented. If a person obtains two or more early conciliation certificates for the same “matter”, then they will potentially gain the benefit of the potential extensions described in Section 140B EQA and Section 207B ERA (and other legislation) in relation to the first such certificate. However, there will be no (further) extensions of time simply based on second or third (etc) early conciliation certificates related to the same “matter”. Disability[212]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.[213]The section refers to the need to take into account Schedule 1. The paragraphs in that schedule include the following extracts in Part 1. Page 44 of 80 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.[214]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.[215]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 mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa. Page 45 of 80 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.[216]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[217]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 Page 46 of 80 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.217.1 Did the Claimant have a mental or physical impairment? (the ‘impairment condition’);217.2 Did the impairment affect the Claimant’s ability to carry out normal dayto-day activities? (the ‘adverse effect condition’);217.3 Was the adverse condition substantial? (the ‘substantial condition’);217.4 Was the adverse condition long term? (the ‘long-term condition’).[218]In Sullivan v Bury Street Capital Limited [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 2010.218.1 Was there an impairment?218.2 What were its adverse effects?218.3 Were they more than minor or trivial?218.4 Was there a real possibility that they would continue for more than 12 months or that they would recur?[219]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).[220]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.[221]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). Page 47 of 80[222]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[223]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. Adverse Effect Condition[224]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 person 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).[225]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.[226]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. Page 48 of 80[227]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[228]For the third of the four questions identified in Goodwin, section 212(1) EQA defines “substantial” as meaning “more than minor or trivial.”[229]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”.[230]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 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.[231]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:231.1 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.231.2 The time taken to carry out an activity.231.3 The way in which the Claimant carries out the activity;231.4 The cumulative effects of the impairment;231.5 the cumulative effects of more than one of impairment;231.6 the effect of behaviour;231.7 the effect of environment Page 49 of 80231.8 the effect of treatment (which is any treatment, not just medication). Long term condition[232]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.[233]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.[234]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.[235]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.[236]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).[237]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.[238]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. Page 50 of 80 Treatment[239]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. Evidence Issues[240]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.[241]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. 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[242]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. Page 51 of 80[243]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. Analysis and conclusions Disability[244]We deal first with the disability questions as set out in Section 3 of list of issues.[245]In doing so, we have taken account of the totality of the evidence provided, including the impact statement and the GP notes and the report from Caroline Evans.[246]While we are seeking to decide whether the Claimant met the relevant definition during employment with the Respondent (and at the time of each respective contravention of EQA) we have taken account of the documents that were only produced later - while the Claimant was in Brazil - to see what assistance they provide to our analysis of the earlier periods.[247]At [Bundle 957], in a document dated 8 May 2023, Caroline Evans refers to posttraumatic stress disorder (PTSD) and notes that the Claimant was treated for this condition between 12 September 2018 and 25 March 2019.247.1 For completeness, it is mentioned that the Claimant had begun to feel the benefits of therapy. When analysing whether an individual meets the definition of disability, we are required to disregard any beneficial effects of treatment, including therapy.247.2 The symptoms described included “brain fog”, having little or no memory of certain events and time periods, and episodes of severe anxiety (impacting self-worth and self-confidence). The fact that Ms Evans does not hold medical qualifications does not prevent our being satisfied that her report is based on her notes of discussions with the Claimant and accurately reflects what the Claimant told her at the time about her symptoms.[248]On 27 January 2022, the Claimant had a face-to-face consultation with her GP.248.1 The GP described the problem as “mild memory disturbance,” with the word “first” in brackets immediately following. This indicates that this was the first time the Claimant had attended this GP surgery regarding this issue. Page 52 of 80248.2 There is a passing comment that the Claimant believed she had ADHD. More significantly, the Claimant reported problems with memory, difficulty retaining information, searching for words, forgetting things, and an inability to focus or concentrate. We find these symptoms are consistent with those previously described to Ms Evans, and our inference is that they are linked to ADHD.248.3 The notes also record that the Claimant’s mood was “okay,” and we do not associate these symptoms with depression. It is noted that the Claimant appeared chatty and alert.248.4 Although there was a suggestion of possible memory testing, the notes do not confirm that such testing occurred. There was a missed appointment was scheduled for 4 April, but regardless of the purpose of that intended appointment, there was no further GP consultation until June 2022.[249]The diagnosis on that occasion was “stress at work,” and a fit note was supplied to the Respondent. There was no specific reference there to memory issues. The Claimant’s comments were consistent with her evidence in these proceedings: she felt bullied by her line manager, although the alleged bullying was directed at others as well as herself. She also referred to the fact that her daughter was in Brazil.[250]There were no further GP appointments. The GP did not consider it necessary to see the Claimant again, prior to the expiry of the fit note. On expiry, the Claimant did not seek a renewal and declined medication, preferring instead to take time off to “destress and sort herself out.”[251]As mentioned, the Claimant took some unpaid leave in August. The next GP contact was on 15 September, via telephone consultation, and this was described as “anxiety” and “first.”[252]On this occasion, the issue was described as a stress-related problem. The fit note referred to difficulties with concentration, inability to focus, and memory problems. As previously mentioned, it also referred to emotional stress and anxiety. The duration of the fit note was from 15 September to 15 October, and the Claimant returned to work following its expiry.[253]She subsequently attended her GP on 28 October. It does not appear that the GP was informed that she had already returned to work, which may explain why the GP backdated the fit note issued on 31 October to cover the period from 16 to 31 October. We are satisfied that the Claimant was fit to work following the end of the 15 September fit note, as evidenced by her return to work.[254]Significantly, there was a discussion with the GP on 28 October regarding the Claimant’s plans to take a career break. The GP recorded that the Respondent required two months’ notice, which is likely to have been an error on the GP’s Page 53 of 80 part rather than the Claimant’s. By this stage, the Claimant had already completed the application and was aware that three months’ notice was required, which she had given. The GP notes record that the Claimant wished to be signed off until 31 October and then until 31 December 2022. We are satisfied that this was connected to her intention to remain signed off until the commencement of her career break. This is confirmed by the entry dated 31 October, which records that an extension of medical certification for two months was requested while the employer implemented career break arrangements. The Claimant did not return to her GP after this point, according to the documents. PTSD[255]We are satisfied that, in relation to PTSD, the symptoms previously described by Ms Evans continued and were likely to recur by the time the Claimant was seeing Ms Evans. This is clear from Ms Evans’ notes.[256]We are satisfied that these symptoms had more than a minor or trivial effect on the Claimant’s day-to-day activities; in other words, they were substantial. It is likely that the symptoms did not occur every day, but it is unnecessary for us to determine their precise frequency. It is sufficient to conclude that, prior to the start of the Claimant’s employment with the Respondent, it was likely that these effects on day-to-day activities would recur.[257]Thus PTSD was an impairment which the Claimant had, which satisfied the definition of “disability” throughout her employment with the Respondent. Anxiety. Depression.[258]In relation to anxiety and depression, these are pleaded separately as distinct impairments with potentially separate effects on day-to-day activities. We consider it convenient to address them together. We consider each of them individually, and we also consider their combined effects, and we also consider the interaction between these named impairments with the PTSD and ADHD.[259]We are not satisfied that either “anxiety” or “depression” met “the long term condition” any earlier than 31 December 2022.259.1 Regarding the June absence - the first instance of stress at work recorded in the GP notes - it was clear that both the Claimant and the GP considered that the situation would resolve itself, partly because the Claimant was due to move to a new team within two weeks to avoid her current manager, and partly because she had some time off to de-stress.259.2 As of June, and the Claimant’s return to work, reporting to Ms Evans, it was not likely that the effects on her day-to-day activities - that had prevented her from attending work during part of June - would recur. Page 54 of 80[260]There was an absence of about a month, from mid-September to mid-October, followed by a brief return (in which there were not many shifts) followed by the start of a new period of absence.[261]When the Claimant was signed off again on 28 October 2022, this was the first occasion on which she referred to symptoms of depression during discussions with her GP, stating: “I am now showing signs of depression.” She described herself as crying constantly and being unable to concentrate. However, it appears that both the Claimant and her GP were satisfied that, once the career break commenced, those symptoms would no longer be either continuous or recurring.[262]We now know, from evidence obtained by the Claimant while in Brazil, that the symptoms did in fact persist and continued from January 2023 onwards. However, judged at the relevant points during the Claimant’s actual period of employment, the long term condition was not met in October or early November, as the career break was still scheduled to commence in January (which was expected to end the symptoms). The long term condition was not met in late November, or in December either, as the Claimant had handed in her notice and was planning to go to Brazil even earlier than previously planned. At that stage, it was not “likely” that the adverse effects on day to day activities would continue far into 2023.[263]We now move on to analysing the allegations of wrongdoing. Time limits[264]For ease of exposition, it is convenient to deal first with the claims which we have decided are out of time and to give the reasons for those decisions.[265]Although we are positioning the explanation at this point in our reasons, when making these decisions, we first considered the evidence as a whole, and made the findings of fact mentioned above, and also considered our analysis of everything in list of issues, and we took into account the decisions we made on the claims that we decided were in time.[266]Allegations 8.2.1 to 8.2.3 all refer to incidents that allegedly took place on 21 January 2022. In each case, the only person involved was Ms Harris.[267]Allegation 8.2.4 refers to a report produced by Ms Harris on around 26 January 2022 [Bundle 465 to 468], and sent by email to Ms Hill on 27 January [Bundle 464] and to Ms Davies (copied to the Claimant) on 1 February 2022 at 10.45am [Bundle 479] and to Mr Killeen at 11.25am on 1 February 2022 [Bundle 481] and to the Claimant (copied to Davies and Killeen) also on 1 February 2022 [Bundle 487]. Page 55 of 80[268]We do not find that there was conduct extending later than 21 January 2022 (for allegations8.2.1 and8.2.2 and8.2.3 ) or later than 27 January (for allegations8.2.4 ).268.1 The consequences of the decision that the Claimant had not passed the assessment did last beyond 21 January 2022. She had to retake the interview assessment (or would have had to do so if she wished to complete the TDC course). However, the act itself – the decision on 21 January – did not last beyond 21 January 2022.268.2 Similarly, for the alleged differential treatment – that other candidates got helpful prompts and the Claimant did not – that act did not last beyond the interview itself. Even if the consequences of that (alleged) failure to prompt was a failed assessment then, as just mentioned, the failed assessment was not an act which continued after 21 January.268.3 The analysis in relation to the allegation that the Claimant was treated differently in relation to use of bullet points is identical to that just mentioned for prompts.268.4 The allegation that Ms Harris lied on the feedback report fails on the facts. We found that she did not do so. Thus this would not lend weight to any argument that any of allegations 8.1.1 to 8.1.3 were part of a continuing act.268.5 Ms Harris’s involvement effectively ended on 1 February 2022 when the Claimant received the report (prepared by Ms Harris on 26 or 27 January 2022) from Ms Hill. Although Ms Harris did send some communications after that day, she was not involved in any of the later matters stated in the list of issues.[269]By the time the Claimant commenced early conciliation on 7 May 2022, it was already more than 3 months after all of allegations 8.2.1 to 8.2.4. Thus the time limit is not extended – by the legislation relating to early conciliation periods - by ignoring the period 8 May 2022 to 17 June 2022, or to give the Claimant until at least 17 July 2022, or at all.[270]The Claimant presented her claim in relation to allegations 8.2.1 to 8.2.4 on 18 February 2023. This was more than a year after the alleged incidents in question and more than 9 months after the primary time limit had expired on 20 April 2022.[271]In weighing the balance of prejudice to the Respondent if we grant the extension of time against the prejudice to the Claimant if we refuse it, the following points are in the Claimant’s favour:271.1 The Respondent has not been prevented from having Ms Harris as a live witness. She was the actual alleged discriminator. Page 56 of 80271.2 The Respondent has not been prevented from having Ms Hill and Mr Killeen as live witnesses. They each looked at some aspects of the assessment (carried out by Ms Harris) after the Claimant had challenged it.271.3 There are some written documents that are near contemporaneous, including Miles Taylor’s notes, Ms Harris’s feedback report, and the Claimant’s emails to Ms Hill.271.4 We do think the Respondent could have dealt with the matter more formally at the time. In particular, at the point in time that Ms Harris’ line management decided that, in the absence of what they regarded as a formal grievance, there was no need to correspond further with the Claimant, our assessment is that a reasonable employer (using the word loosely) would have informed the Claimant of that stance. Had it done so, and had that prompted the Claimant to lodge her formal grievance sooner, then more of the evidence might have been preserved.271.5 The Claimant had some illness in 2022 (and in 2023).271.6 We have found that she had the disability PTSD, in addition to the disability of ADHD conceded by the Respondent, throughout the relevant time period.271.7 We take into account that the Claimant is Litigant in person[272]A neutral factor is that there is no video recording. That is entirely the Respondent’s responsibility, not the Claimant’s. However, it is also something that the Claimant knew about from 21 January 2022.[273]The following points are in the Respondent’s favour:273.1 Had the Claimant brought the early conciliation to an end on 7 May 2022 and issued a claim that day, it would still have been out of time. However, in that scenario, matters would have been fresher in people’s memories.273.2 Had the Claimant presented the claim within a month of Day B for the first early conciliation, it would still have been out of time. But the matters would have been fresher in people’s memories.273.3 The Claimant has a first class law degree and is aware of the existence of courts/tribunals, and of the fact that there are time limits for such claims. Regardless of how much or how little she knew about Employment Tribunals in particular, she had the knowledge and experience to be aware that internet searches would provide her with the necessary information about time limits and claim procedures. Page 57 of 80273.4 On 17 June 2022, the Claimant stated to ACAS that she was going to take legal advice about bringing a claim [Bundle 900]. That was passed on to the Respondent the same day [ACAS 30]. Months went by and she did not do so. It would not be unreasonable for a potential Respondent to come to the view that no claim was going to be brought (whether because the legal advice had been that it was out of time, or because the legal advice had been that there was insufficient merit, or because the Claimant has simply decided not to pursue).273.5 In accordance with its normal retention policies, it has destroyed the paper records made by Ms Harris during the assessment itself. That is true for each of the Claimant and the other two candidates. While it is true that there can be an argument that they ought to have decided to keep those record because of the Claimant’s comments in January and February, and then (if not destroyed already) because of the grievance and early conciliation, they could not have been expected to retain them indefinitely, even after the Claimant failed to bring a claim promptly after the first early conciliation. [There is no specific evidence of the exact date on which the documents were destroyed. On the Respondent’s case, we are asked to infer that they were destroyed promptly, so around 3 months later than 21 January 2022, and had already been destroyed before the grievance and early conciliation on 7 May 2022. That has not been proven. However, we do accept that they were destroyed prior to 18 February 2023.]273.6 The Respondent’s notes would have been of assistance to the Tribunal. They would have either tended to support the Respondent’s case or to support the Claimant’s case. It is notable that the Claimant’s allegations of improper differential treatment are somewhat vague, and remained vague even when she was questioning the Respondent’s witnesses. That is particularly true, for example, about the points at which she alleges that she ought to have received prompts (if her treatment was to match that which was allegedly given to the others). Interview notes might have assisted with that, if they showed when prompts were given. Based on the email exchanges between her and TDC Taylor, the Claimant seemingly accepts that at least one prompt was given.273.7 The Claimant’s own notes – described by her in her correspondence to Ms Hill as written shortly after 21 January 2022 - were not retained by her. The Respondent has therefore not had the opportunity to cross-examine her as to whether those contemporaneous notes contained anything to undermine the assertions made later.273.8 The Claimant’s first sickness absence in 2022 was 10 (or 12) June to 27 June. So the time limit had already expired by the start of that absence. Page 58 of 80273.9 She was back at work from around 28 June, so if she had believed that the first early conciliation certificate would extend time to one month from the end of conciliation, she was not too ill to work between the end of June and 17 July 2022, and, in our assessment, not too ill to present a claim then.273.10 She was well enough to complete the flexible working application in April.273.11 She well enough to complete the grievance form in May.273.12 She was well enough to complete the career break application in October.[274]It is our decision that the Claimant does not have a good reason for missing the deadline. Her law degree and advice work and police training made her aware that litigation has deadlines. She does not claim to have been unaware of them. The fact that someone does not have a good reason for missing the deadline does not mean that time cannot be extended. It is simply one of the factors that should be weighed up.[275]Weighing all these factors, our decision is that the Claimant has not demonstrated that it would be just and equitable to grant an extension of time for any of the allegations 8.2.1 to 8.2.4 in list of issues. Those allegations are therefore all dismissed. Additionally, we are fully satisfied that Ms Harris did not lie on the feedback report.[276]Allegation 8.2.5 in list of issues is about the Respondent’s failure to investigate the complaints about 21 January assessment. As preliminaries to assessing when the time should start to run from, we make the following comments:276.1 In her 28 January email [Bundle 474], DCI Franklin had said that Ms Hill should provide Ms Harris’s report to the Claimant and offer the Claimant a chance to discuss the alleged treatment.276.2 In her 1 February email to the Claimant [Bundle 487/488], Ms Hill has said she would meet the Claimant to discuss her email (meaning the allegations of unconscious bias) and that this was a separate matter to assessment outcome.276.3 In her 26 February 2022 email to Ms Hill [Bundle 544], the Claimant asked to “discuss all of this in detail” and received no response.276.4 Ms Harris – in emails not seen by the Claimant – also made clear to senior officers that she wanted an investigation.276.5 On 2 March 2022, DI Carrington informed Hill and Killeen (in emails at 13:54 and 22:38) that, in the absence of a formal complaint about discrimination and/or trainers’ conduct, the matter should not be progressed further, and Page 59 of 80 that he intended to give that information to the Claimant’s DI. There was no suggestion that Carrington would either inform the Claimant directly, or inform the Claimant’s line manager, Mr McGowan, directly.276.6 As of 9 March 2022, Mr McGowan’s email [Bundle 579] accurately summarised the Claimant’s position. She was not seeking to overturn the outcome of the assessment but still wished her concerns (about unconscious bias) to be addressed.276.7 In the remainder of March 2022, as accepted the Claimant in the grievance [Bundle 633], the Claimant was not actively chasing up a response.276.8 On 5 April 2022, she emailed Hill and got an auto-reply. (We are not satisfied that she then emailed Killeen)276.9 On 7 May 2022, she submitted a grievance [Bundle 626]276.10 She became aware, via ACAS, that the Respondent’s Grievance Management Team had not traced that 7 May email attaching the grievance.276.11 She sent the grievance to ACAS so that it could be forwarded to the Respondent and she was aware that it was forwarded to the Respondent.276.12 The Respondent asked ACAS [ACAS Bundle 31] if the Claimant wanted her grievance to be passed to the GMT to be dealt with by that route.276.13 The specific question passed onto the Claimant via ACAS [Bundle 894] was not identical. However, it did tell the Claimant that the Respondent wanted to know if she thought the matter could be dealt with by way of grievance process. On 17 June 2022, the Claimant’s responses included, at [Bundle 900], the comment that she had no faith that the Respondent would act appropriately if matters were to go via grievance process alone. She also said that her opinion was that the Respondent had dismissed the process (meaning early conciliation) in its entirety without talking to her.276.14 Notably, within the grievance form itself, the Claimant made reference to the Respondent having decided not to allow her to appeal the outcome of the assessment. She also said – in reference to her having asked Mr McGowan on 8 March 2022 to pass on her concerns – that she had not heard back. (This was now 2 months later). She was also aware (from 5 April, a month before the grievance form) that Hill had retired. In the grievance, she did not claim to have emailed Killeen and we find that she did not do so. Our decision is that, by 7 May 2022, the Claimant was already of the opinion that L&D – Hill, Killeen and their superiors – were not going to reply to her. She brought the grievance because she was aware that they were not going to reply to the correspondence she had sent in January/February. Page 60 of 80[277]We take into account that there was potentially some room for misunderstanding: the Respondent potentially being of the opinion that the Claimant had ruled out going down the grievance path at all, but with the Claimant potentially believing that the Respondent had merely been told that she would not wait until the grievance process was concluded prior to issuing a claim.[278]That being said, it is also true that the Claimant did not make any further contact with the GMT, or seek to chase the matter up via her line manager. We are satisfied that the Claimant was aware, by 17 June 2022, that the Respondent was not proposing to go down the grievance route. She may not have understood that it was the Respondent’s position that it had not received the 7 May email (or could not find it) and/or that it was suggesting that she had to do something else (eg expressly request that the copy sent via ACAS be processed formally). However, she did understand – given that she had told ACAS that she would not delay issuing Employment Tribunal proceedings - that the Respondent was not intending to process the grievance. She was not awaiting a grievance outcome letter after 17 June 2022; she knew there would not be one.[279]For these reasons, we consider that time would start to run from no later than 17 June 2022, and the primary time limit would expire on 16 September 2022, in relation to the complaints of (alleged) failure to investigate all of the complaints itemised within section 8.2.5 of list of issues.[280]Our decision is that the “matter” to which the first early conciliation related included the alleged fact that there had been failure to deal with the Claimant’s complaints about the assessment (including unconscious bias) and all types of discrimination complaint that might be based on that alleged act or omission. Thus, the Claimant gets no more than one day’s extension (resulting from discounting 17 June 2022, Day B, from the calculation).[281]This alleged omission was not part of an act which continued after 17 June. The persons involved in this act/omission were Hill, Killeen, McGowan and GMT. None of those were the alleged decision makers for any of the complaints which post date 17 June 2022. Neither Franklin nor Carrington were involved in later matters either.[282]The claim form presented on 18 February 2023 was approximately 5 months out of time in relation to the allegation that it was race discrimination to fail to investigate the allegedly biased outcome following the interview assessment.[283]It is this panel’s firm opinion that the Respondent acted badly in relation to the grievance. As an industrial jury, we do not consider that this organisation has acted – in its handling of the grievance – in the manner that might be expected from any reasonable employer that was seeking to comply with it duties under the Equality Act 2010 and/or seeking to ensure that allegations of race Page 61 of 80 discrimination were investigated and/or that was seeking to eradicate discrimination. Even ignoring what had gone before, it could and should have written to the Claimant directly – as soon as it received a copy of the grievance form via ACAS - and told her outright that it would investigate her grievance if she wanted it do so1. This is one of the factors that we take into consideration when deciding whether it is just and equitable to extend time.[284]The comments about the Claimant’s knowledge of deadlines made above apply equally here. We take into account that the Claimant had some unpaid family leave in August of approximately one week. We also take into account that she had sickness absence in June and a further absence that started in the middle of September, so just before the end of the period in which a claim would have been in time.[285]Our decision is that the Claimant’s reasons for failing to put in an Employment Tribunal claim about the failure to investigate the grievance (and earlier complaints referred to in section 8.2.5) were not that any sickness absence prevented her from doing so. As of the middle of September 2022, she was not intending to present a claim. We are satisfied that she decided not to pursue that matter after she left the TDC scheme and moved back to uniform with a new line manager. We do not accept that she was simply too busy (whether with family matters, or work, or anything else). She did not present a claim at that time, because she had decided not to do so.[286]The Respondent has not produced, as a witness, someone with direct knowledge of why the grievance was not processed. We do accept that - as the emails to Shane Joshua from Ms Venosi and Ms Chhiba make clear – the Respondent’s GMT genuinely could not trace the 7 May email. There is no explanation of that, and it is clear that it is not the Claimant’s fault. However, the reason for not being able to trace the 7 May email is not particularly important given that on 14 June 2022 [ACAS Bundle 28], Shane Joshua forward a copy of the grievance form to Grievance Management Team.[287]The statement from Duane Baird, to the effect that the Respondent sometimes might accidentally delete a grievance or fail to respond because of some other human error does not give the impression of a well-run organisation that is seeking to deal with allegations of discrimination in a manner which is fair to the person making the complaint and/or the person who is the subject of it. Neither 1 For the avoidance of doubt, it could also have written to her and simply said that the grievance process was now underway, without asking her to confirm that she wanted the matter to be treated as a grievance. We are merely saying that it was unreasonable to fail to write to her at all, even at the very least to confirm that the original grievance had been misplaced, but it was now willing to act on the copy if she confirmed she wanted that. Page 62 of 80 Ms Harris nor the Claimant has been well-served by the Respondent’s approach to the Claimant’s complaints about the assessment process.[288]However, while the Respondent’s apparent lack of a rigorous approach to dealing with grievances is a contributory factor to the prejudice to the Respondent if time were to be extended, we accept that there is some prejudice that is not of the Respondent’s making. As we said when addressing why complaints 8.1 to 8.4 were out of time, the fact that there had been an early conciliation certificate issued, and no claim within a month or so after that, did mean that it would not have been unreasonable for the Respondent to have formed the view that the Claimant was not going to bring a claim (either in relation to the grievance itself, or its subject matter). Time limits are there for a reason. The prejudice to the Respondent of granting this 5 month extension outweighs the prejudice to the Claimant of refusing it.[289]For the victimisation complaints, 9.2.1 was about a specific event. The Claimant was aware on 6 April 2022 that the flexible working request was refused. Our finding of fact is that this is one of the “matters” to which the first early conciliation related. The issue of whether it was part of a continuing act is discussed below. However, in relation to acts on 6 April 2022, ignoring early conciliation the time limit for a complaint of victimisation would expire on 5 July 2022. The period 8 May to 17 June inclusive is 41 days. Adding 41 days to 5 July 2022 gives a revised limitation date, taking into account early conciliation, of 15 August 2022.[290]For 9.2.2 and 9.2.3 and 9.2.4 and 9.2.5, the time limit date is effectively the same as already calculated in relation to 8.2.5 of list of issues. That is, by no later than 17 June 2022(i) the Respondent had decided that it would not investigate the grievance (in the absence of an express request from the Claimant that the document sent to Mr Joshua via ACAS be dealt with as a grievance) and(ii) the Claimant knew or believed that the Respondent was not going to investigate the grievance (because she had understood them to be saying that they would only investigate it if she agreed to hold fire on issuing Employment Tribunal proceedings while they did so, and because she expressly refused to do so). Allowing a one day extension for early conciliation, the primary time limit expired on 17 September 2022 for these complaints.[291]For 9.2.6, the time limit actually runs from 21 January 2022, and had expired (on 20 April 2022) before the first early conciliation period. [In any event, the Claimant had agreed with McGowan on 8 March 2022 that she would not challenge the requirement to do those assessments. Even if the time limit began to run from 8 March it would have expired, allowing for early conciliation, on 18 July 2022.][292]For 9.2.7, the Claimant’s probation was signed off by McGowan on 24 May 2022 [Bundle 638]. Time should run from that date at the latest. So that would be a Page 63 of 80 limitation date of 23 August without allowing for early conciliation. Discounting 24 May to 17 June (25 days) moves the time limit, including the early conciliation extension, to 17 September 2022.[293]By 29 June 2022, the decision that the Claimant had successfully passed probation had been formally signed off by the BCU Commander and HR records were finalised. [Bundle 659]. At the very latest, even assuming – in the Claimant’s favour – that any complaints about Mr McGowan could be regarded as an act which continued until 29 June 2022, the primary time limit for those would expire on 28 September 2022. No complaint about Mr McGowan (including the refusal of flexible working, as well as alleged threats of probation extension) could be part of an act that continued later than 29 June 2022.[294]Since these alleged threats were between March and June 2022, according to list of issues, they were a “matter” that was covered by the first early conciliation period. However, even if that were not true, the Claimant would not get an early conciliation extension for Allegation 9.2.7 based on the second early conciliation certificate because that second early conciliation started much more than 3 months after the Claimant had already passed her probation.[295]We take into account that the Respondent has been able to call each of Mr Stillwell and Mr McGowan as witnesses. These are the two people who are accused of making these alleged threats.[296]We also take into account that there is a transcript of one conversation which the Claimant relies on.[297]In part, the complaint relies on the Claimant’s alleged recollection of a particular conversation with Mr McGowan (para 52 of C WS on page 183 of WS bundle) for which there is no date.[298]However, as the Claimant made clear in her conversation with O’Connor [Bundle 1562], the Claimant knew that there were mechanisms in place by which a person could challenge extension of probation. There was no extension of probation. Matters were raised with her in relation to SOROCS requirements that she was told by Mr McGowan she would have to meet in order to pass probation. The matter was ultimately resolved to the Claimant’s satisfaction in the sense that she passed probation as scheduled, and there was no delay.[299]The Claimant was entitled to, and did, say at the time that she thought she should pass probation; she was entitled to, and did, disagree with any proposed mutually agreed extension. She did not say at the time that she believed that the things said to her about probation were detrimental treatment because of alleged discrimination in the interview assessment process. The Respondent did not have the opportunity to investigate that suggestion at the time. Page 64 of 80[300]Weighing up the prejudice, our decision is that we do not extend time for any of the complaints of victimisation at paragraph 9.2 of the list of issues.[301]In relation to the refusal of the flexible working request, since the Claimant did not appeal, the time limit runs from 6 April 2022. She commenced early conciliation after that, and after she had complained to Mr Stillwell about the refusal. So the refusal is covered by the first early conciliation certificate.[302]Time would have expired on 5 July 2022 ignoring early conciliation, but is 41 days later allowing for early conciliation and so expired 15 August 2022.[303]The Claimant knew about the Respondent’s policies and her statutory rights throughout the time period. Our finding is that she was not unable – because of disability or any other health issue – to present a claim in time. She was absent from work for part of the period – around 10 June 2022 to 27 June 2022 – but she was back at work several days before 5 July 2022 and for more than 6 weeks by before August 2022. Nothing prevented her putting in the claim. She was aware of ACAS and had already obtained an early conciliation certificate. It was reasonably practicable for her to have presented the claim in time.[304]Thus there is no jurisdiction in relation to the flexible working complaint, and it is dismissed.[305]We turn now to the other matters. 4 Discrimination raising from disability (Equality Act 2010 section 15) 4.1 Did the Respondent treat the Claimant unfavourably by: 4.1.1 Withdrawing the Claimant’s career break;[306]This fails on the facts. The career break was approved by the Respondent [Bundle 694] and it was never withdrawn.[307]The Claimant had ended her employment prior to the date that the career break was scheduled to start. It had been scheduled to start on the date that was requested in the Claimant’s application (albeit we accept that the Claimant selected that date because it was the earliest possible start date, given the date of her application). 4.2 Did the following thing arise in consequence of the Claimant’s disabilities of anxiety, depression and ADHD: 4.2.1 the Claimant’s sickness absence of 30 days in September 2022 and between 27 October 2022 and 31 December 2022 and date? The Claimant states that sickness arises directly or indirectly from all three disabilities because the direct reason for the sickness absence was anxiety and depression but the fact that she is a person with ADHD exacerbated the impact of anxiety and depression. Page 65 of 80 and 4.1.2 The decision to start absence proceedings against the Claimant; she was informed by Sgt Harrison that the proceedings would be started against her on around 29 October 2022?[308]The Claimant says the absence referred to in Allegation 4.2.1 was caused by/ contributed by each if the alleged disabilities.308.1 Our decision was that the Claimant has not demonstrated that she met the definition of disability at this time in relation to “anxiety” or in relation to “depression”.308.2 We are not satisfied that the absence was even partly due to ADHD or PTSD, taking into account the contemporaneous GP notes.308.3 Thus, the Claimant has failed to prove that the absence referred to in Allegation 4.2.1 was something arising from disability[309]Even if we are wrong, and this absence was at least partly due to ADHD or PTSD, we are satisfied that the Respondent did not know – and could not reasonably have been expected to know – that she had either such disability, which is the answer to the question posed at paragraph 4.6 of list of issues. Thus the defence in Section 15(2) EQA would have succeeded.[310]For completeness, we would regard the letter as treating the Claimant unfavourably in the sense that, and it informs her of the possibility of commencing unsatisfactory performance process in due course, if various conditions are met.310.1 The letter is not informing her that those proceedings have been started or inevitably will be started.310.2 It is factually accurate that the Claimant did have 4 sickness absences within 12 months – see [Bundle 1300] 4.4 Was the treatment a proportionate means of achieving a legitimate aim? The Respondent say that its aims were:4.4.1 The equitable management of attendance;4.4.2 Protecting the health and safety of the workforce;4.4.3 Maximising the operational efficacy and productivity of the Respondent’s force so as to best serve the public; and/or4.4.4 Ensuring that costs are managed in the interests of the public[311]We do accept that the Respondent did have each of those aims, and that each of them was legitimate Page 66 of 80[312]We also accept that having a sickness absence policy which sets certain triggers and informs officers of what they might expect if they hit each trigger is a mean of seeking to achieve each of the aims stated in 4.4.1, 4.4.3 and 4.4.4.[313]We also accept that warning the Claimant about the possible consequences of a further absence was something pursuant to the legitimate aims just mentioned. In particular, the fact that the Claimant was told about the possibility of occupational health advice and the possibility of a discussion with her line manager, and told that she could let the Respondent know about any issues where she required assistance from the Respondent, were things done as part of an effort to achieve those legitimate aims.[314]Any discriminatory effect of the “3 plus 1 warning” letter, and of the subsequent suggestions of case conference is fairly small, taking into account the offers of support that were made. In comparison, the Respondent’s legitimate aims were very important to the Respondent.[315]The information which the Claimant was given about her absences, from 15 September 2022 onwards, was fair and reasonable and in accordance with the Respondent’s policies. It was a proportionate mean of pursuing a legitimate aim.[316]Thus, even if the absence had been because of something arising, and even if the Respondent had known about disability, the defence in section 15(1)(b) would have succeeded. 5 Indirect discrimination (Equality Act 2010 section 19) 5.1 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCP: 5.1.1 The policy that a career break would not be granted to those with 4 periods of sickness absence;[317]Our decision is that the Respondent did not have this PCP.[318]We have taken into account the application form, and the requirement for certain declarations. We have noted that it is conceivable that the item in the bundle has one or more missing pages, because the policy states various requirements, not all of which has a corresponding declaration in the form.[319]However, in any event, we do note what the policy says. It is phrased in terms of who might be eligible to apply. Our decision is that a more accurate phrasing would be that those are the criteria which might be used to decide whether the application is granted or not.[320]The fact is that the career break was approved by the Respondent and it was never withdrawn. The notification did not refer to the offer being conditional on no further sickness absence. Page 67 of 80[321]At the time the Claimant applied for the break, she had not yet commenced her fourth absence within the rolling 12 month period. However, the career break was not withdrawn after she did start that fourth absence.[322]Thus the Claimant has neither proved that the PCP in paragraph 5.1.1 is a requirement that was imposed on other people, or that it was imposed on her.322.1 In the particulars of claim, the Claimant accepts that she had been told that the career break was agreed. She claims that she was also told that it was withdrawn.322.2 To the extent that the Claimant is saying that there was a conversation between herself and Ms Evans in which Ms Evans told it was withdrawn, our finding is that that is not true. Nobody else told her it was withdrawn either. If the Claimant had genuinely believed at the time that the career break had been withdrawn orally, there is no explanation for why the Claimant would have written what she did in the contemporaneous WhatsApp messages. In particular, when the Claimant was told about the requirements to hand back items prior to the start of the career break, had she previously been told that the career break was cancelled, then the Claimant would have said so then.322.3 To the extent that the Claimant is seeking to persuade us that the WhatsApp messages should be interpreted as meaning that the career break was withdrawn, they do not say that. The WhatsApp messages say that the Respondent was unwilling to bring the planned start date forward from 25 January 2023. However, there is nothing in the WhatsApp messages that states or implies that the Respondent had decided to refuse to allow the Claimant to start her career break on 25 January 2023.[323]Therefore the indirect discrimination claim fails 6 Reasonable Adjustments (Equality Act 2010 sections 20 & 21)6.1 Did the Respondent know or could it reasonably have been expected to know that the Claimant had a disability? From what date?6.2 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs: 6.2.1 PCP 1: The policy that a career break would not be granted to those with 4 periods of sickness absence;.[324]PCP1 is not a requirement which the Respondent had for the same reasons just discussed in relation to indirect discrimination[325]For completeness, there would have been no failure to make adjustments to that PCP even if the Claimant had proved it existed and disadvantaged her. Even leaving issues about knowledge to one side, the Respondent was willing to allow Page 68 of 80 the Claimant to commence her career break on the appointed date of 25 January 2023 and so if the Claimant had been correct that this was a PCP applied to others, it would follow that there had been an adjustment to the PCP in the Claimant’s case. 6.2.2 PCP 2: The sickness absence policy providing for an absence proceedings for individuals who have had 4 periods of sickness absence[326]We have the policy and have noted all the trigger points. It is true that one trigger point was 4 periods of sickness absence within 12 months. However, it is not true that the Respondent had a requirement that formal processes, and especially not the UPP, would start inevitably as a result of hitting that trigger.[327]There were communications about the new sickness absence which started on 31 October. At around 7am on 1 November, Ms Evans wrote to the Claimant asking the Claimant to report at this absence on the HR systems. She acted in accordance with the Respondent’s policies by doing so. Based on those, this was a new and separate absence, and it was not a continuation of the absence that was from mid-September to mid-October. It was appropriate for Ms Evans to tell the Claimant to make sure that the system correctly showed that her previous absence had ended (and she had returned to work) around mid-October and that a new period of absence commenced at the end of October.[328]Ms Evans said that the Claimant should get a call from occupational health in the next day or two.[329]On 3 November and the there was a further exchange in response to the Claimants WhatsApp message [Bundle 790]. Ms Evans wrote to say that they would need to arrange a conference call and asked if there were any dates that were not suitable.[330]From the correspondence as a whole, it is clear that while Ms Evans was notifying the Claimant about the Respondent’s requirements, she was not saying that any particular outcome had already been decided, but rather was seeking to make arrangements that would – amongst other things – give the Claimant the opportunity to have her say, and the chance for medical evidence and/or OH advice to be obtained, before decisions were made.[331]The Claimant was not put under pressure to make decisions quickly. Whether matters might have been progressed more quickly had the Claimant not raised the possibility of resignation is a matter of speculation. In any event, it is not the case that the Claimant was seeking to hurry things along and was chasing Ms Evans to act more quickly. Ms Evans proceeded at a reasonable pace, and the Claimant did not ask for conference call and/or OH appointment to be sooner. Page 69 of 80[332]After the Claimant had expressed the intention to resign, Ms Evans did enquire if the Claimant still held that intention or not. However, she did not put pressure on the Claimant to resign. 6.3 Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that: a) she is more likely to have periods of sickness absence if she is not managed appropriately compared with persons who do not have any disabilities. She is therefore more likely to be unsuccessful in applying for a career break[333]The Claimant was not put at the disadvantage mentioned in Allegation 6.3a. She was not unsuccessful in applying for a career break. b) Her return to work for 5 – 7 days in October 2022 and then subsequent sickness absence, was treated as a fourth period of sick leave.[334]In general terms, a person who has a disability that causes them to be absent from work from time to time is likely to be placed at a disadvantage – in comparison with persons who are not disabled – by a PCP that states that there will be consequences from having 4 periods of absence within 12 months.[335]The answer to the question at 6.4 of list of issues is that if the employer knew that a particular employee had a disability, then they would know, or else could reasonably be expected to know, about the hypothetical disadvantage mentioned in the previous paragraph. 6.1 Did the Respondent know or could it reasonably have been expected to know that the Claimant had a disability? From what date?[336]Our decision was that the Claimant has not demonstrated that she met the definition of disability at this time in relation to “anxiety” or in relation to “depression”.[337]Regardless of whether any part of any of the 4 absences was because of, or partly because of, ADHD or PTSD, we are satisfied that the Respondent did not know – and could not reasonably have been expected to know – that the Claimant had either such disability,. 6.5 What steps could have been taken to avoid the disadvantage? The Claimant suggests:6.5.1 Granting the Claimant a career break;6.5.2 Allowing the Claimant not to work her notice period prior to taking a career break but permitting unpaid parental leave;6.5.3 Treating the October 2022 sick note as a continuation of her third period of sick leave. Page 70 of 80 6.6 Was it reasonable for the Respondent to have to take those steps and when? 6.7 Did the Respondent fail to take those steps?[338]In terms of 6.5.1, the Claimant was granted a career break. Thus, regardless of whether failing to do so would have been a breach of the duty to make reasonable adjustments, it did not fail to do so.[339]In terms of 6.5.2,339.1 The Claimant was on sick leave during the whole of her notice period. She was not required to work any part of the notice period, given that she was on sick leave. Had she not been on sick leave, she would have been expected to be attending work and carrying out her shifts.339.2 Parental leave is different to sick leave. Converting a period of absence from one category to another does not, in itself, enable the person to come off sick leave and return to work. (Although we acknowledge that the absence would not then count as absence to be taken into account as part of sickness absence monitoring procedures.)339.3 Furthermore, converting a period of absence from a category which is paid absence to a category which is unpaid absence could prove controversial. That would certainly be the case if the employer simply went ahead and did it unilaterally, but even making the suggestion could potentially lead to the employer being accused of wrongdoing.339.4 If the Claimant was not genuinely too ill to work, but did not wish to attend work during her notice period, there were options to her which included(a) applying for a different type of leave or(b) seeking to agree an earlier termination date. It is a matter of speculation as to whether the Respondent would have refused; it did not refuse either such option because she did not ask.[340]For these reasons, it was not reasonable for the Respondent to have had to convert the Claimant’s notice period from sick leave to parental leave.[341]In relation to the suggestion that the Respondent ought to have told her that she could take the period from the date of application for career break (or from 31 October 2022, when the next sickness absence started) until the actual start of the career break (so 25 January 2023) as parental leave, that would not be a failure to make reasonable adjustments. The Claimant had an entitlement to paid sick leave, which she was using, and it would not have been reasonable for the Respondent to have had to say to the Claimant that it was converting her absence to unpaid parental leave instead. Page 71 of 80[342]In terms of 6.5.3:342.1 Seeking that adjustment is something that the Claimant could have raised during the process, for example, during a case conference.342.2 Matters connected with the fact that the Claimant had had 4 periods of absence in 12 months did not get very far. We have not even been shown a letter notifying her that she had hit that specific trigger.342.3 There were other triggers in the policy, for example for long term absence, and taking into account everything that Ms Evans said, wrote and did during the absence that started on 31 October 2022, we cannot see that it really made any difference whether that period was deemed to be a third absence or a fourth.342.4 No sanction was imposed on the Claimant as a result of commencing a fourth absence. It would not have been reasonable for the Respondent to have had to adjust a requirement that two periods of sickness that were either side of a period of being at work were counted as separate periods. It would not have been reasonable for it to have had to formally state to the Claimant that they were treating the period from 15 September 2022 onwards as being part of a single sickness absence. As we have said, nothing prevented the Claimant from arguing that the discretionary decisions that the Respondent should make during the procedure should take into account her argument that – on her case – she had not really been well enough to come back to work in October. However, that would have come at a later stage, and the Claimant resigned before any such meetings/decisions took place.[343]For the reasons stated above, all of the complaints of failure to make reasonable adjustments fail. 7 Direct sex discrimination (Equality Act 2010 section 13) 7.1 Did the Respondent to the following things: 7.1.1 Instruct Sgt Harrison to commence managing absence proceedings;[344]This fails on facts because(i) no-one instructed Evans to do this and(ii) Evans did not do it.[345]Ms Evans received automated notifications from the Respondent’s HR software about the Claimant’s absence. She did not receive instructions from any senior officer that she had to take any particular course of action.[346]We have discussed already what Ms Evans said, and wrote and did in connection with the Claimant’s absence. It did not amount to the commencement of the formal UPP. Page 72 of 80[347]In any event, there are no facts from which we could conclude that anything that Ms Evans did in relation to the Claimant’s sickness was because of sex.[348]Thus this allegation of sex discrimination fails.[349]As we already stated above, allegation 7.1.2 was out of time, so that means that none of the complaints in section 7 of list of issues have succeeded.[350]As we have already stated above, none of the remaining allegations, following the withdrawal, in section 8 of list of issues is in time.[351]In terms of section 9 of list of issues, we have stated above which complaints were out of time. For the remainder, our analysis is as follows. 9.1 Did the Claimant do a protected act as follows:9.1.1 The Claimant relies upon informal and formal complaints made on 26 January 2022, 27 January 2022 and 26 February 2022 to DS Paula Hill, an informal complaint to DS McGowan made between 1 and 26 February 2022 and information provided in support of her complaint on 8 March 2022. She states that every time she highlighted that there an issue in relation to race.9.1.2 Her email to the grievance team which appears in her timeline around March or April 2022;9.1.3 Her email to DI Stillwell on 6 April 2022.[352]The things that we found to be protected acts were as follows:352.1 Email Claimant to Hill at 10.17 on 27 January 2022 [Bundle 475]352.2 Email Claimant to McGowan at 21:04 on 21 February 2022 [Bundle 523]352.3 Email Claimant to Hill at 21:10 on 26 February 2022 [Bundle 544]352.4 As admitted by the Respondent, the “Grievance” document at [Bundle 628] which the Respondent admits it received by no later than 8 June 2022. The Tribunal’s decision is that the Respondent received it on 7 May 2022.c]]352.5 Email Claimant to Stillwell at 15:17 on 6 April 2022 [Bundle 592][353]We have taken into account the exact words used in each communication, as well as the contemporaneous comments, the written statements for this hearing, and the oral evidence.[354]The Respondent is correct to point out that the mere fact alone that a particular word - such as “discrimination” or “bias” (for example) - is used does not necessarily show that the person sending the communication was referring to any alleged breach of the Equality Act. Page 73 of 80354.1 The alleged bias – if any - could be perceived to be based on something other than a protected characteristic. For example, it could be because of whistleblowing, or because of something that was not unlawful.354.2 Also a word such as “discrimination” (and even more so words such as "harassment” or “victimisation”) might be used by an employee who is intending a meaning that is different to the meanings defined in the Equality Act 2010.354.3 What we have to do is to apply the test set out in section 27 EQA and to decide whether the Claimant was making an allegation (whether express or implied) that someone had contravened the Equality Act 2010. (We do not consider that any of section 27(2)(a) or section 27(2)(b) or section 27(2)(c) are met in relation to the things mentioned in paragraph 9.1 of list of issues)354.4 So, just as the mere fact alone that words from the definitions of “Prohibited Conduct” have been used does not mean – automatically – that there has been a protected act, then the absence of such words is far from fatal to the argument that a particular communication was – expressly or by implication – suggesting that there had been a contravention of EQA.[355]One significant point is that, at the time, around February 2022 to April 2022, the emails show that Ms Harris, and some others, appear to have formed the opinion that the Claimant had made an allegation of race discrimination. In particular, Ms Harris’ email giving the breakdown of who else she had failed for the interview assessment clearly demonstrates what she believed had been alleged.[356]Even with all the above points in mind, our decision is that the email of 26 January 2022 at 9.37am [Bundle 476] is not a protected act. It is simply a question about timescales and the expression of an intent to appeal. There was no implied suggestion of breach of EQA.[357]In response to that, Ms Hill stated that the Claimant would not be able to appeal. Replying to that email, at 10.17am on 27 January 2022, the Claimant referred to Ms Harris allegedly being “unconsciously biased”. The Claimant said that if she could not appeal, she would raise it with someone who “oversees discrimination issues”. In all the circumstances, including how others perceived that communication at the time, we are satisfied that it was a protected act.[358]In context, the Claimant’s email to Mr McGowan at 21:04 on 21 February 2022 was also a protected act. It spoke of “bias” without use of any variation of “discrimination”. It made clear that the Claimant was alleging that another candidate had been treated preferentially. It did not – in itself – allege a reason for that difference in treatment. However, this email was sent some weeks after the one mentioned in the previous paragraph, to the Claimant’s line manager, Page 74 of 80 after she had already made an (implied) assertion of race discrimination to another officer. It came after the training team had discussed matters with the Claimant’s line management, and after the Claimant had discussed matters with Mr McGowan. The email does not expressly say that there was race discrimination, but that is not the requirement. We are satisfied that it falls within the definition in section 27(2)(d) EQA.[359]For the email from the Claimant to Ms Hill on 26 February 2022 at 21:10, for the avoidance of doubt, we do not consider that this email contains any express or implied suggestions that the Claimant has a disability or that there has been any disability discrimination. To an employment lawyer, the comments implying that the Claimant might have lost marks in the assessment because English is not her first language and/or because her speaking pace was influenced by her culture, suggest – implicitly, at least – that there was indirect race discrimination. There are also repeats of the allegations of unconscious bias. This was a protected act.[360]The Claimant sent more than one email to Mr Stillwell on 6 April 2022. In the one at 15:17, she said that the interview course assessment had been “an unfair and biased process” and also that she was seeking “reparations for that”. In isolation, there may not have been enough in this email to show that she was alleging some breach of EQA, but this came against the background of earlier emails that demonstrated that that was her allegation.[361]The definition of victimisation does not depend solely on whether the Claimant had done a protected act. As acknowledged in paragraph 9.6 of the list of issues, we also have to address whether the detriment was because the Respondent believed the Claimant (had done or) might do a protected act? Even if – contrary to our decisions - the communications that we have found to be protected acts were not actually protected acts, our decision is that they did lead the Respondent to understand that the Claimant might take things further. So the communications prior to the grievance led the Respondent to believe that it was possible that the Claimant might present a formal grievance which alleged race discrimination (and that did, in fact, happen in May 2022). 9.3a Did the Respondent, after the termination of the Claimant's employment, communicate through Gowling an intention to file a theft report against her in relation to her warrant card? 9.3b Did the Claimant reasonably perceive that communication as a threat? 9.4 By doing so, did it subject the Claimant to detriment?[362]Taken literally, this is about expressing a future intention to file a theft report. As developed in evidence, the Claimant’s suggestion is that(a) the Respondent did actually file a theft report and(b) that doing so was victimisation. Page 75 of 80[363]In summary, there are no facts from which we could reasonably conclude that the burden of proof has shifted.[364]The WhatsApp exchanges make clear that the issue of returning her warrant card was raised with the Claimant before she travelled to Brazil. It was made clear to her that she would need to return the card if she went on a career break, and in those circumstances, she would have had to do so by 25 January.[365]It was also made clear that if she resigned with last day of service as 31 December, she would have to return the card by that date.[366]One problem with the allegation that telling the Claimant that a theft report might be filed was – in itself – victimisation is that the report (on the Claimant’s case) was actually filed. So filing it without having first warned her (and thus given her the opportunity to remedy the situation before there was a report) would have been worse treatment – more detrimental treatment – than issuing a warning. Clearly a threat to do something which a respondent knew there was no proper basis for doing (and/or a threat to do something which was not eventually done) could be a detriment in itself. However, in this case, the Respondent did actually proceed in the manner that – via its solicitors – it suggested that it might.[367]Thus, for the warning itself, our decision is that the reason that the Respondent gave the warning is that it was – in fact – genuinely considering the option of treating the matter as a possible criminal offence, and investigating it as such. It was not making a fake threat (whether because of any protected act or at all).[368]In those circumstances, our decision is that we need to analyse the actual motivations for the Respondent’s treating the matter as a potential crime (and entering it as such on its crime reporting records).[369]We accept that the Claimant’s perception was that the Respondent acted unreasonably and that, because of her financial circumstances, the Respondent should have given her more leeway. By implication, the Claimant believed the Respondent should have trusted her to safeguard the item indefinitely and/or should have suggested the consulate option sooner than they did.[370]However, alleged unreasonableness is not directly the test for victimisation. It is true that - if it were hypothetically our decision that the Respondent acted in a way that was inherently unreasonable, or that it treated the Claimant differently from others – unreasonable behaviour can be taken into account when deciding whether the burden of proof had shifted. However, we find that the evidence does not support the conclusion that the Respondent acted in a way which we find suspicious, or surprising, or different to the way we would expect the Respondent to act towards any other officer who had left the service and who Page 76 of 80 had not – a significant time after the departure date – still not returned their warrant card.[371]On the evidence, the Respondent did not act suddenly so as to treat the matter as a crime. It tried persuasion and simply asking the Claimant what her proposals and timescales were. It sent reminders. All the protected acts had occurred months before the resignation, and the correspondence about the warrant card. The evidence is inconsistent with there having been any overarching plan (since February to June 2022) to treat the Claimant badly because of protected acts. Furthermore, nor is there any suspicious change in attitude after the new period of early conciliation or the presentation of the claim form. The Claimant had been told – politely and firmly – that the Respondent wanted the warrant card returned, and for that to be done by a method which it deemed to be safe and secure. There is no evidence to suggest that it would have treated the Claimant’s responses (and lack of responses) on that issue differently had it not been for the protected acts.[372]We are entirely satisfied that – in relation to the actual protected acts pleaded – none of these influenced the decision to create a crime report[373]Even if we had found that the burden of proof had shifted, we are satisfied that it has been discharged and none of the Respondent’s conduct in relation to the warrant card was in any way whatsoever motivated by any of the protected acts or by any belief that the Claimant had done, or might do, any protected act.[374]The victimisation complaints fails, and we now turn to the dismissal allegation. 2 Constructive dismissal contrary to ss.39(2)(c) and (4)(c) EQA 2.1 Was the Claimant dismissed? 2.1.1 Did the Respondent to the following things:2.1.1.1 The alleged acts of disability discrimination set out in LOI. 4, 5 and 6 below;2.1.1.2 The alleged acts of sex discrimination set out in LOI.7 below;2.1.1.3 The alleged acts of race discrimination set out in LOI.8 below; or2.1.1.4 The alleged acts of victimisation set out in LOI.9 below?[375]One thing which the Claimant relies on is the allegation that the opportunity to have a career break was withdrawn. That is not true, the Respondent did not withdraw that. It was scheduled to start on 25 January 2023 and the Respondent did not tell the Claimant that it would not start then. It is true that they declined to allow her to start it earlier, but that is not the same thing as withdrawing it. Page 77 of 80[376]For completeness, it is true that Ms Evans said that she did not know whether the Claimant’s sick leave would affect the career break. However, again, that is not the same thing as stating that the career break was cancelled. The Claimant did not wait and see whether the Respondent made a decision that – because of the sickness absence commencing 31 October 2022 (either in itself, or in conjunction with earlier sickness periods) – the career break option was cancelled. Had the career break not been cancelled, she would not have been expected to resume service as a police officer until January 2025. However, regardless of whether a return date in January 2025 was seen as a burden or a benefit, it was not the Respondent who made the decision to cancel that. By her act of resignation (in circumstances in which the Claimant alleges there was constructive dismissal), it was the Claimant who performed the act that meant that she would not have the right or obligation to resume duties in January 2025.[377]We are satisfied that the reason that the Claimant resigned is that she wanted to be in Brazil, continuously, as soon as possible. She did not wish to have to be in the UK to perform whatever actions (if any) she was required to perform there, during sick leave, if she did not resign.[378]One matter about which the Claimant was cross-examined was about whether the Claimant knew on 8 November that she was definitely not going to return to the UK before the scheduled start of the career break on 25 January 2023.[379]The Claimant denies that she had made up her mind by then. She was slightly equivocal about her specific intentions. However, taken as a whole, we interpret her answers as asserting that, as of 8 November, the Claimant intended to keep her options open: potentially, she might decide while in Brazil to return to the UK to resume work once the sick note expired on 1 January; alternatively, she might resign. The panel observes that a third option was to obtain a new fit note to cover her until the start of the career break, though that then raises the issue of whether doing so would require her to return from Brazil to engage with any sickness absence procedure; since she resigned before telling the Respondent that she was in Brazil, the issue of whether she would have had to return to the UK before 25 January – if she did not resign – was not explored.[380]We do not find it necessary to make a firm decision about whether the Claimant knew for certain on 8 November that she would not return to the UK. Our finding is that the Claimant believed that if she wished to remain in employment beyond 31 December 2022, then—other than returning to work—she would need to submit a further fit note. She also believed that submitting a further fit note would trigger formal sickness absence proceedings. In addition, it seems likely that the Claimant perceived the Respondent would require her to be in the UK if she submitted a further fit note, in order to attend occupational health appointments and meetings with managers.. Page 78 of 80[381]To the extent that the Claimant says she had no choice other than to resign, the choices were as described above. It is true that if the Claimant felt unable or unwilling to either resume work or else submit a further Fit Note, she would have been on unauthorised leave from 1 January 2023 if she had not already resigned. However, the facts are that the career break was scheduled to start on 25 January, and it was the Claimant’s decision not to attempt to continue her employment until then but to submit a resignation with notice on 24 November 2022, and to state that the termination date was 31 December 2022.[382]We find that the Claimant would not have resigned when she did if the Respondent had brought the career break forward sufficiently to allow her to travel to Brazil around 8 November. The Claimant had been discussing the possibility of resigning with Ms Cox and Ms Evans in October and early November, prior to formally confirming her decision on 24 November.[383]Our decision is that the Respondent’s unwillingness to allow the Claimant to start the career break earlier than 25 January 2023 was not a breach of contract, let alone a repudiatory breach. It was a decision made in accordance with its normal policies. There was no breach of the Malik term; the conduct was not calculated or likely to destroy the relationship of trust and confidence.[384]Since the refusal to bring forward the career break was not a repudiatory breach of contract, we go on to consider whether it was nevertheless part of a course of conduct which cumulatively amounted to a repudiatory breach. Our decision is that it was not.384.1 There was nothing that either Ms Evans or her senior officer, Mr Ellwood, did that was connected to any of the earlier incidents.384.2 Neither of them breached the Claimant’s contract in any way in connection with sickness absence or the career break application. The career break application was dealt with promptly and the decision to grant it was not reversed.384.3 Neither Ms Evans nor Mr Ellwood was involved in earlier matters such as the alleged failure to investigate complaints against the Claimant’s previous line manager, Mr McGowan, or against the assessors on the interview course.384.4 In addition, we are satisfied that the Claimant did not resign because the Respondent failed to investigate a grievance, failed to respond to complaints about Mr McGowan, or failed to address what happened during the assessment course. We are satisfied that the entirety of the Claimant’s reason for resigning was her desire to be in Brazil without waiting until 25 January 2023. That was the reason she resigned—not any prior conduct by the Respondent. Page 79 of 80[385]For these reasons, the Claimant was not dismissed within the meaning of section 39 of the Equality Act.[386]Therefore, for the reasons we have given, all of the complaints are unsuccessful. This concludes our reasons. Outcome and next steps[387]At the conclusion of the hearing, there was a discussion about whether the Claimant might apply for one or more orders under Rule 49 before the judgment was published. She was given 7 days to submit a written application. By email sent after the end of the hearing, she confirmed that she was making no such application. Approved by: