Ms C Rayner v East of England Ambulance Service: 3302176/2020 and 3303126/2021

EMPLOYMENT TRIBUNALS

Case No 3302176/2020, 3303126/2021

Between

Ms C RaynerClaimant

East of England Ambulance ServiceRespondent

Before

Employment Judge Tynan

Members

Mrs A Carvell and Mrs H Gunnell

Mr D Brown (instructed by Counsel) for claimant

Ms J Smeaton (instructed by Counsel) for respondent

Date 19 April 2022

JUDGMENT

[1]The Respondent discriminated against the Claimant contrary to section 21 of the Equality Act 2010 by failing to comply with its duty to make reasonable adjustments, in terms of the first requirement in section 20(3) of the Act, as set out in paragraph 183 of the Tribunal’s Reasons below (“Claim A”).

[2]The Respondent discriminated against the Claimant contrary to section 15 of the Equality Act 2010 by:(a) not facilitating a sustainable return to work for the Claimant between September 2019 and February 2020 (“Claim B”);

(b) by inviting her on 26 September 2019 to attend a final formal meeting on 14 October 2019 at which the termination of her employment was stated to be a possible outcome (“Claim C”);

(d) by deciding on or around 25 November 2019 not to reinstate or extend her sick pay (“Claim E”), the Respondent having failed to show that this treatment was a proportionate means of achieving a legitimate aim.

[3]The Claimant’s complaint of harassment pursuant to section 26 of the Equality Act 2010 succeeds in so far as:(a) the Respondent invited her on 26 September 2019 to attend a final formal meeting on 14 October 2019 at which the termination of her employment was stated to be a possible outcome (“Claim F”);

(b) Mr Squibb of the Respondent stated in a letter to the Claimant dated 23 December 2019 that she had not engaged with the Respondent regarding her ongoing sickness absence (“Claim G”); and

(c) Ms Bromley of the Respondent said to the Claimant during a telephone call on 15 September 2020 that making tea on the station was not an option (“Claim H”).

[4]The Claimant’s complaint of victimisation pursuant to section 27 of the Equality Act 2010 succeeds in so far as:(a) the Respondent declined to permit Mr Roberts of the Respondent to continue to manage the Claimant’s ongoing absence and planned return to the workplace in September 2020 after he returned to his substantive post as LOM in or around July 2020 (“Claim I”); and

(b) the Respondent decided on or around 25 November 2019 not to reinstate or extend her sick pay (“Claim J”).

[5]The Claimant’s remaining complaints that she was discriminated against contrary to the Equality Act 2010 and that the Respondent made unlawful deductions from her wages contrary to section 13 of the Employment Rights Act 1996 are not well founded and are dismissed.

[6]Pursuant to Section 123 of the Equality Act 2010, the Tribunal determines that it would be just and equitable to extend time to enable the Claimant to bring Claims H and I under the Equality Act 2010, notwithstanding they were notified to Acas under Early Conciliation outside the primary time limit for notifying, and subsequently bringing, such complaints.

REASONS

[7]The Claimant has brought two claims against the Respondent. Her first claim was presented to the Employment Tribunals on 31 January 2020, following Acas Early Conciliation between 18 November 2019 and 1 January 2020. Her second claim was presented to the Employment Tribunals on 17 March 2021, following Acas Early Conciliation between 7 January and 18 February 2021.

[8]There was an agreed Cast List, Chronology and List of Factual and Legal Issues. The latter document cross-referenced the Claimant’s Grounds of Complaint and the Tribunal therefore invited Counsel to update the List to incorporate the relevant allegations in the Grounds of Complaint. In the event there was insufficient time available to them to agree an updated single List. We have worked with Ms Smeaton’s updated List, though have held in mind that her summary of the corresponding provisions in the Grounds of Complaint are not necessarily agreed by the Respondent.

[9]There were a significant number of documents in the case, comprised in three lever arch files and a further Claimant’s Supplementary Bundle. At various points during the Hearing additional documents were added to the Bundle. The Tribunal’s task would have been made easier if there had been greater focus and a more proportionate approach to the documents in the trial preparations.

[10]The Claimant gave evidence over three days. We shortened the Hearing days and increased the number and length of breaks in order to accommodate the Claimant’s situation. She had made a 49 page witness statement. Whilst she was fundamentally a truthful witness, we have not approached her evidence (or indeed the evidence of the Respondent’s witnesses) uncritically. We have borne in mind the growing judicial recognition that when a witness is doing their best to recount events as they recall them, even when these events are presented with confidence, their evidence may not always be a reliable guide to what happened. In Gestmin SGSP S.A. v Credit Suisse (UK) Limited and Anr [2013] EWHC3560 (comm), Mr Justice Leggatt (as he was then) made observations about the distorting effects of litigation on the reliability of oral evidence and stressed the importance of contemporaneous documents when making findings of fact. Memory can be unreliable when it comes to recalling past beliefs because there is the risk that past beliefs may be revised to make them more consistent with the present beliefs, particularly when there are competing accounts of meetings and conversations. It is often more reliable to base findings on inferences drawn from contemporaneous documents and known or probable facts. We have approached our fact finding task with this in mind.

[11]We are also mindful in this case that the Claimant has experienced significant long term mental ill-health. She has a history of depressive episodes and a long standing anxiety disorder. We are satisfied that these adversely impacted both her concentration and her ability to recollect events when giving evidence at Tribunal, and we have made allowance for this. Equally, however, we consider that her anxiety disorder in particular has impacted her perception of certain events. Specifically, we consider that the Claimant’s current views as to the potential barriers to a successful return to the workplace have informed her recollection as to the barriers in this regard that existed in January / February 2019, October 2019 and March 2020. We return to this when we examine events at those times.

[12]The Claimant’s friend, Stacey Williams, made a statement and gave evidence on her behalf. Her evidence relates to a telephone conversation between the Claimant and Joanne Bromley on 15 September 2020.

[13]On behalf of the Respondent, we received witness statements and heard evidence from:a. Ms Claire Thwaites, Assistant General Manager and the Claimant’s Line Manager from October 2018;

b. Mr Luke Squibb, General Manager for North and Central Cambridgeshire - between November 2019 and July 2021 Mr Squibb was Acting Head of Operations;

c. Mr James Norman, General Manager for Service Delivery in South Cambridgeshire - Mr Norman was briefly involved in relation to the Claimant in early 2020 when it was proposed that he would look into her first grievance;

d. Ms Rachel Avery, Leading Operations Manager (“LOM”) for Central Cambridgeshire - Ms Avery has performed a welfare role in relation to the Claimant as a result of her ongoing absence from the Trust;

e. Mr Sylvester Mathias, Interim HR Manager who provided much of the HR advice and support in relation to the Claimant from 4 November 2019; and

f. Ms Joanne Bromley, Duty Tactical Commander, who at the time relevant to her involvement in these proceedings, namely the period July to November 2020, was interim Assistant General Manager for Central Cambridgeshire.

Findings of Fact

[14]We set out our primary findings of fact below. For convenience we have addressed the claimed PCPs in the Law and Conclusions section of our Judgment.

[15]The Claimant commenced employment with the Respondent on 4 January 1988 and accordingly has 31 years’ service with the Respondent. She commenced work as an EMT (Emergency Medical Technician) and subsequently worked for the Respondent as a Paramedic between 1993 and 2000, returning to work as an EMT on a part time basis from 2000. The Claimant’s history of ill-health

[16]The agreed Chronology documents that the Claimant was first absent from work with depression in 1999, that she was absent with work related stress and anxiety in 2002, and absent with stress and depression in 2003. The next identified episode of depression was in 2012, some nine years later. However, it seems that the Claimant was impacted by ongoing mental health issues as reasonable adjustments were made to the Claimant’s working arrangements in 2009 to provide continuity in terms of working with colleagues. That adjustment was reinstated in 2012 and 2013. In 2016, the Claimant was absent from work with a recurrent major depressive episode. Once again, the same continuity adjustment was reinstated. The Claimant was then absent from work with work related stress / depression and a recurrent major depressive episode in the following two years, namely 2017 and 2018.

[17]The agreed chronology therefore indicates that since 2016 the Claimant has experienced recurring depressive episodes on a more regular basis.

[18]On 16 August 2018, the Claimant was diagnosed with cancer. On 5 September 2018, the Claimant commenced a period of sickness absence. She underwent a lumpectomy on 18 September 2018. She has hypertension; in an Impact Statement at pages 1132 to 1134 of the Hearing Bundle the Claimant explains that it arises from both her stress/anxiety and from her cancer medication.

[19]The Claimant was diagnosed with diabetes in November 2019. The terms and conditions, and policies and procedures applicable to the Claimant’s employment

[20]The Claimant’s terms and conditions of employment are governed by Agenda for Change.

[21]The Respondent’s Policies and Procedures, including the provisions of Agenda for Change relating to sickness absence, are contained in Section 2 of the Bundle. They include: GRIEVANCE POLICY 1. Policy Statement 1.2 The Trust aims to create a harmonious working environment and to maintain good working relationships. It is recognised however that there may be occasions when staff feel aggrieved and wish to seek redress. This procedure aims to resolve grievances informally, whenever this is possible in order to promote, maintain, and / or restore positive and harmonious employee relations in the workplace. 5. Standard Procedure 5.1 An individual member of staff who has a concern, problem or complaint about a matter affecting their employment should raise the problem in the first instance with their immediate line manager, or another manager if the grievance is against their line manager. In circumstances where this may not be appropriate employees should contact their trade union representative or the Human Resources Department. In order to enable the manager to fully understand the issue(s) being raised, the employee would be expected to provide as much information relating to the grievance at the time of raising it, including copies of any witness statements on which they intend to rely. This will allow for a more timely review of the details and to provide a suitable response. 5.3 It is expected that both the manager and the employee will approach this informal resolution attempt in a positive manner with the intention and a clear willingness to find resolution to the grievance and avoid any need for formal grievance mechanisms. 5.4 The informal route should aim to be completed within 14 calendar days, taking into account duty commitments and involvement of other individuals, i.e. a trained mediator. Stage 2 – Formal Grievance Meeting 5.6 Where, despite best efforts, an employee’s grievance remains unresolved after informal resolution attempts or the matter is considered sufficiently serious to warrant informal resolution attempts being inappropriate (see Section 4.2), the employee will be permitted to request that the matter be dealt with formally by submitting it in writing to their immediate line manager in writing using the Grievance Registration Form (Appendix B). In circumstances where this may not be appropriate employees should contact their trade union representative or the Human Resources Department. DISABILITY POLICY 5.0 Reasonable Adjustments 5.4.6 Redeployment as a temporary or permanent adjustment. Staff who have or may be developing a disability, and are unable to carry out their substantive role, must be considered for redeployment. This can be a temporary measure, with no financial detriment, to help support them through periods where they need additional support, such as alternative duties. The Trust has agreed to support employees by applying a period of pay protection to those individuals who are identified as subject to permanent redeployment as a result of a disability (*as defined under the Equality Act 2010). The period of pay protection will be in line with the Trust’s Change Management, Redeployment and Redundancy Policy. *Only a judicial body can make a definitive judgement over someone meeting the definition of having a disability, as defined by the Equality Act 2010, although for the purpose of pay protection and redeployment, the Trust will accept the opinion of any health care professional, such as a General Practitioner or Occupational Health advisor. 6.0 Sickness management6.1 NHS Employers (Guidelines on prevention and management of sickness absence, updated 2013) gives guidance on sickness absence policies and the Equality Act stating, ‘It will often be appropriate to manage disability absence differently from other types of absence’, and that ‘recording the reasons for absence should assist that process’. It also advises that although ‘employees are not automatically obliged to disregard all disabilityrelated sickness absences, they must disregard some or all of the absences by way of an adjustment if this is reasonable’, and that ‘if an employer takes action against a disabled worker for disability related sickness absence, this may amount to discrimination arising from disability’.

6.2 Managers conducting return to work interviews should carefully consider whether the staff member has a disability under the Equality Act 2010, or be developing a disability. Reasonable adjustments should be explored to assist the employee to remain or re-enter the workplace and maintain attendance with ongoing support.

6.3 Sickness absence related to disabilities must be recorded as such where the Trust knows, or can reasonably be expected to know, that the employee has a disability.

6.4 Disregarding sickness relating to disability is best practise and in some cases a legal requirement. For example, an employee experiencing side effects from chemotherapy should have their sickness disregarded for the purposes of applying any sanctions, this would be seen as a reasonable adjustment. 7.0 Medical Evidence 7.1 Evidence of a disability could be from the employee, their GP, consultant or physiotherapist. SICKNESS POLICY 10.0 Sickness Benefits (including Injury Allowance, Contractual Sick Pay) 10.2 The Trust will also have discretion to extend the period of sick pay on full or half pay beyond the scale set out nationally. An approach regarding this can be made by the employee, line manager, employee representative or HR. The decision to extend will be on the authorisation of the Deputy Director or equivalent of the employee’s directorate and the Head of HR. The outcome can be appealed if unsuccessful, and would need to be submitted to the Director of People and Culture and relevant Director of the employee within 7 calendar days of being advised of the decision not to extend pay. This timeframe is set to ensure any appeal submitted is considered at the earliest opportunity. The Trust recognises that exceptional circumstances may apply and this timeframe may need to be extended. Circumstance might include:  Where there is the expectation of return to work in the short term and an extension would materially support a return and / or assist recovery; particular consideration should be given to those employees without full sick pay entitlements;  In any other circumstance that the employer deems reasonable (e.g. terminal or progressive illness with a poor and / or debilitating prognosis). 18. Process for Managing Sickness Absence 18.2 Managing sickness absence requires sensitivity, consideration and support in relation to individual circumstances, an awareness of legal obligations and an understanding of the context in which the employee is working. This is particularly important in the case of those employees who may already have or have recently developed a disability. In such cases, there is a legal obligation for the Trust to consider what reasonable adjustments can be made in the workplace to enable the employee to attend work. Managers and employees should also refer to the Trust’s Disability Policy. 20. Formal Health Review Meetings 20.5 The invitation to attend a formal meeting will be in writing providing at least 14 calendar days’ notice. The employee will be advised of their right to be accompanied by a fellow Trust worker or Trade Union Representative (either being of the employee’s choice). In exceptional circumstances and where there is agreement between all parties the notice for holding a meeting can be reduced. The employee will also be advised of their right to present independent medical evidence or any other supporting information. This should be submitted at the earliest opportunity, where possible at least 4 calendar days prior to the meeting. 20.9 At any second or subsequent formal meetings, the manager will send a copy of the employee’s absence record, and copies of any additional return to work contacts. This is to ensure that the employee and manager have the same shared information. The employee will be informed that records of relevant meetings, the Sickness Absence Management Policy, and any other relevant documentation previously referred to will be available for reference at the meeting. The employee may request copies in advance if required. 20.11 During the meeting the manager may consider:  Whether there is anything practicable the organisation can do, such as workstation adaptation, which would allow the employee to perform their current job with or without modifications;  Alternative duties;  The nature, likely length and effect of the illness;  Whether there has been a recent improvement in the employee’s attendance record;  Whether the employee had an informal / formal meeting within the previous 12 month period;  Health and Wellbeing support;  A return to work;  Redeployment (temporary and / or permanent);  Reasonable adjustments and / or equality issues;  Ill-health retirement (occupational health advice should be sought on the likelihood of obtaining a successful ill-health retirement application);  Dismissal on the grounds of capability;  Any relevant policies.

[24]Final Review Meeting24.1 At any point during the above process if it is perceived that an employee is unlikely to return to their substantive role or be able to achieve an acceptable attendance record, a final review meeting will be held with the employee. For long term sickness absence the final review meeting will take place at an appropriate point and prior to entering a period of twelve months continuous sickness absence, a member of the Human Resources Department will be present.

24.2 The purpose of the final review meeting is to reach a decision on the appropriate way forward, the outcome of which may be a return to substantive employment, redeployment or proceeding to a capability hearing which can result in a termination of contract.

24.3 Reasonable adjustments will have already been considered before this stage. The Claimant’s 2018/19 sickness absence 22. Within a few days of her lumpectomy in September 2018, the Claimant informed her then Line Manger, Adam Cooper, that she wished to return to work as soon as possible. He informed her that Occupational Health advice would be required and that it would be sensible for any Occupation Health appointment to be deferred until the Claimant had seen her Consultant and been certified fit by the Consultant to return to work. Whilst the Claimant has expressed concern in her witness statement as to how this aspect of her absence was handled (albeit she does not pursue any concerns as a formal complaint within these proceedings), we do not consider that the referral was delayed unreasonably. On the contrary, it seems to us that the Respondent acted in accordance with its duty of care to the Claimant, by adopting a cautious approach in terms of her return to work in circumstances where she had recently been diagnosed with breast cancer and had undergone a lumpectomy. 23. On 1 October 2018, the Claimant was certified as potentially fit to undertake amended / light duties with effect from 1 October 2018 through to 1 November 2018. The Claimant informed Mr Cooper that her GP had recommended a return on alternative work duties (“AWDs”) on the basis that this would assist in her recovery. 24. A telephone Occupational Health appointment was arranged for 11 October 2018. Ideally, the Respondent might have arranged the appointment for 1 October 2018, but we do not consider that it delayed unreasonably in making the necessary arrangements. We certainly do not consider that this short delay evidences a discriminatory mindset on the part of Mr Cooper or anyone else at the Respondent. We consider that the Claimant has come to view the fact she did not return to work in September 2018 through the distorting lens of this litigation, with the result that she now perceives how she was treated differently to how she was in fact treated, and perceived herself to have been treated, at the time. The contemporaneous documents in the Hearing Bundle evidence that the Respondent was understanding of and sensitive to the Claimant’s situation in September / October 2018 and fully supportive of her recovery and return to work. The Claimant suggests that the Respondent effectively impeded her return to work on 1 October 2018; in fact her Fit Note was reissued on 15 October 2018 certifying her unfit to work between 1 October and 1 November 2018. Whilst we can understand why she might have secured an amended Fit Note to cover the period 1 October 2018 to 11 October 2018 if she had felt the Respondent was preventing her return to work, this fails to explain why her GP certified her as unfit to work beyond 11 October 2018. We find no evidence that this was because the Respondent was hindering her return. On the contrary, we find that it was supportive of her return to work on AWDs. We have concluded that whilst the Claimant had been keen to return to work, and the Respondent, her GP and the Respondent’s Occupational Health advisors were all supportive of this, in reality she remained unwell and unfit to work, and that this was recognised by her in consultation with her GP on 15 October 2018 when the decision was taken to issue her with an amended Fit Note.

[25]In October 2018, Ms Thwaites took over as the Claimant’s Line Manager. They initially enjoyed a positive relationship and the Claimant perceived Ms Thwaites to be supportive. They had an informal long term sickness absence meeting on 17 October 2018 (the record of which is at page 397 of the Hearing Bundle).

[26]On 29 October 2018, the Claimant was certified unfit to work between 29 October 2018 and 26 November 2018. She was undergoing radiotherapy and it was noted that the aim was for her to return to work on AWDs post radiotherapy. A further informal sickness absence meeting was scheduled for 27 November 2018, but in the event it was postponed until after the radiotherapy had finished. The Claimant thereafter remained certified as unfit to work until the end of the year. The Claimant’s return to work in January 2019

[27]The Claimant and her Union Representative, Andy Salter met with Ms Thwaites on 17 December 2018. Regrettably, the meeting was not minuted and the outcome not documented. At paragraph 20 of her witness statement the Claimant refers to Ms Thwaites as having put in place a “prescriptive” return to work plan. However, that label is at odds with an email dated 31 December 2018 at page 414 of the Hearing Bundle, in which Ms Thwaites said, “We can take things slowly and at your own pace …” A later email at page 425 also evidences flexibility beyond the initial proposed four week phased return to work.

[28]On 26 December 2018, the Claimant moved to half pay. The Claimant effectively criticises this at paragraph 21 of her witness statement, stating, “Despite all delay being from the Respondent” The criticism is unfounded as there was no delay on the part of the Respondent. The reason for the reduction in the Claimant’s pay was that between 23 May 2018 and 3 July 2018, she had been absent from work due to a combination of abdominal pain, fatigue and a recurrent major depressive episode. She had then been continuously absent from 5 September 2018 following her cancer diagnosis. Under Agenda for Change she had therefore exhausted her right to full pay.

[29]The Claimant returned to work on AWDs on 2 January 2019 on full pay. She attended a return to work meeting with Ms Thwaites and agreed a target of reviewing this to see if she could resume her substantive duties.

[30]One of the Claimant’s complaints in these proceedings is that she requested a further reduction to her working hours and/or an extension to her reduced hours of working in late January / February 2019, but that her request in this regard was declined. The contemporaneous documentation does not support her complaint. We have already referred to pages 414 and 425 of the Hearing Bundle. The extensive documentation in the Hearing Bundle evidences that the Claimant has been able to express her concerns from time to time; if she had concerns in January/February 2019, specifically had she believed the Respondent was unreasonably refusing an adjustment to her working arrangements following her return to work, we consider that she would have escalated these either herself or through Mr Salter (who had raised a Time Off In Lieu issue on her behalf in September 2018). Instead, we find that the Claimant’s primary ‘concern’ when she returned to work in January 2019 was to avoid any loss of earnings given she had exhausted her right to full sick pay. We find that she was in full agreement with the proposed phased return to work plan.

[31]After two weeks / four days back at work, the Claimant took a week / two days’ annual leave. We find that this led to the planned phased return to work being delayed by one week. When the Claimant returned to work on 21 January 2019 following her leave, she found that she was struggling. She wrote to Ms Thwaites in an email, “I’ve really struggled today… reality hits. Going to come in tomorrow and see how I feel. I am thinking that it may be a good idea to use up some leave and not come in for a couple of weeks. I am bits tonight, and exhausted. Don’t want to give in, but I think I might have to.” (Page 419)

[32]The Claimant took the following week as further annual leave. As well as her own difficulties, her mother-in-law’s health had taken a turn for the worse. Ms Thwaites’ email of 28 January 2019 evidences that she was supportive of the Claimant at this time, consistent with her comment to the Claimant on 31 December 2018 that she would take matters at the Claimant’s pace. The Claimant indicated that she was intending to secure medication from her consultant.

[33]Ms Thwaites and the Claimant exchanged further messages on 1 February 2019. These evidence that Ms Thwaites was concerned for the Claimant and supportive of her during what was evidently a very challenging period in her life. She suggested that the Claimant might want to take a further couple of weeks as annual leave. We regard this as a supportive suggestion on her part rather than in any way indicative that she was seeking to prevent or obstruct the Claimant’s planned return. The Claimant took up Ms Thwaites’ suggestion so that she was on annual leave the weeks commencing 4 and 11 February 2019, further delaying the phased return to work.

[34]The Claimant returned to work on 18 and 19 February 2019. She was seemingly late into work on 18 February 2019 as she had a medical appointment at 9am. Ms Thwaites responded positively to the news that the Claimant would be returning to work, but also to the fact she may be late into work, writing in an email, “Great news, no problems at all”.

[35]Ms Thwaites met with the Claimant on 18 February 2019. In an email that evening, the Claimant thanked Ms Thwaites for the meeting (further evidence that she was not concerned with the way her situation was being managed by Ms Thwaites). In the same email she also referred to difficulties experienced with the carers who were caring for her mother-inlaw.

[36]On 24 February 2019, the Claimant reported that she would be unable to attend work the following day. The documented reason for absence was, “anxiety / stress / depression / other psychiatric illnesses”

[37]In a subsequent Fit Note dated 28 February 2019, the Claimant’s GP certified her unfit for work on the basis of, “breast cancer with ongoing treatment”

[38]There is no indication in either of these two contemporaneous documents that the Claimant’s ill health and absence from the workplace were in any way work related. On the contrary, the text messages and emails at this time evidence that any stressors were non work related. In the event, it would be over a year before the Claimant would return to work and, even then, only briefly. Management of the Claimant’s 2019 sickness absence

[39]On 22 March 2019, the Claimant was invited to attend an informal meeting with Ms Thwaites to discuss her sickness absence. The meeting was to be held on 29 March 2019. This was in accordance with the provisions of paragraph 18.6 of the Respondent’s Sickness Absence Management Policy.

[40]The record of that meeting documents as follows, “Consideration to returning to workUnable to return to work due to remaining symptomatic. AcopiaStress and anxiety completing daily living, unpredictable symptoms.”

[41]It was anticipated that the Claimant would undergo surgery on 8 May 2019, though in the event her surgery was delayed. In the meantime the Claimant was referred for an Occupational Health assessment. The resulting Report is at page 440 of the Hearing Bundle and summarises the Claimant’s current issues in the following terms, “…currently absent with depression, anxiety and stress. The lowered mood is following her diagnosis and treatment for breast cancer last year and the stress is related to family ill health issues”. This further confirms that work related stressors were not affecting the Claimant at this time. The Occupational Health Nurse, Clare Pickard advised, “Carolynne is unfit for work at this time due to her severe signs of depression, anxiety and concentration issues.” The concentration issues were said to be at a level of severity as to make the Claimant unsafe to practice.

[42]The first formal meeting under the Respondent’s Sickness Absence Management Policy took place on 4 June 2019. Ms Thwaites’ handwritten notes of the meeting document that stress and anxiety were identified as potential barriers to a return to work, although the Claimant remained unfit to return to work in any event.

[43]Immediately following the meeting, the Claimant was referred for a further Occupational Health assessment. The referral included a range of standard questions, including whether there were any modifications / adjustments that might alleviate the Claimant’s condition or aide rehabilitation

[44]On 25 June 2019, the Claimant was invited to attend a second formal meeting to be held on 23 July 2019. In the event, the meeting was postponed.

[45]The Claimant was seen by Ms Pickard again on 3 July 2019. She reported that returning to work would be beneficial for her wellbeing and that this was her aim. Whilst this was understandable, we find that she was not then immediately fit to return to work. Ms Pickard’s advice was as follows, “Carolynne remains unfit for work due to her severe levels of depression and anxiety. She is due a medication change and this is expected to reduce her symptoms and allow for a return to work. She would benefit for a referral back to Occupational Health in 4 to 6 weeks’ time for a review of her progress and possible return to work advice. Carolynne is likely at that time to require a phased return to her hours as well as some adjusted duties. I am unable to estimate recurrence at this time.”

[46]Around this time the Claimant indicated some dissatisfaction with Ms Pickard (subsequently confirmed in the minutes of a meeting on 1 August 2019 referred to below). The Claimant had, by this time, been having regular sessions with a psychologist organised through Maggie’s and, we find, contrasted what she perceived to be the psychologist’s greater knowledge, experience and understanding of the psychological impacts of living with cancer, with what she saw as Ms Pickard’s lower level, more generic, knowledge and understanding.

[47]On 9 July 2019, the Claimant emailed Ms Thwaites to suggest a meeting on or after 26 July 2019 in order to introduce Ms Thwaites to her new Union Representative, Sarah-Jayne Parsons. That meeting took place on 1 August 2019. There is some dispute between the parties as to what was discussed. Ms Parson’s notes of the meeting were only disclosed to the Respondent in the course of these proceedings. They record that issues around her return to work were then impacting her. Ms Parsons did not attend Tribunal to give evidence as to the matters that were discussed. However, what is not in dispute, given Ms Thwaites’ own notes of the meeting (page 474), is that the Claimant’s health issues were summarised as stress and anxiety following her diagnosis and treatment, rather than the cancer itself or any post-surgery issues. Ms Thwaites additionally noted that both the Claimant’s psychologist and GP were supportive of the potential for a return to work on AWDs. However, we accept Ms Thwaites’ evidence and the Respondent’s contention, supported by the Occupational Health notes, that the Claimant was not then fit to return to work as she was still experiencing significant levels of anxiety and was waiting to see whether her anxiety levels would reduce as a result of new medication she had been prescribed. It was identified that this may take some weeks.

[48]Following the meeting on 1 August 2019, there was a slight delay of 7 working days whilst a further referral was made to Occupational Health. In the meantime, in an email dated 20 August 2019, Julie Connell, Interim HR Locality Manager, was expressing the view to HR colleagues, “We don’t believe she will be able to return to her substantive role and we will be looking at [redeployment]” (page 526) We find that a view was taking hold within the Respondent, or at least within its HR team, that the Claimant was unfit to return to her substantive role and was very unlikely to be able to return to it in the future, with the result that the focus instead was turning to how she might be redeployed within the organisation.

[49]On 27 August 2019, the Claimant was certified unfit for work for a further period of two months with effect from 23 August 2019. However, in a separate email to Ms Thwaites, the Claimant advised that her GP would sign her back to work as soon as things were “sorted” with Occupational Health and a return to work was planned (page 487). Whilst the Claimant’s case is that any discussion of redeployment or a return to her substantive role created a pressured situation for her, which in turn exacerbated her anxiety, in her email she asked whether perhaps she should have asked for a fit note that certified her “fit for work if on phased or amended duties”. We find that she was essentially content to engage in a discussion as to the basis upon which she might return. The following day, the Respondent’s Occupational Health Nurse Advisor, Alison Morrow assessed the Claimant as fit for work on AWDs with effect from 30 September 2019. Ms Thwaites emailed the Claimant a copy of the Report on 2 September 2019, describing it as “sensible” and noting the proposal that the Claimant would be re-referred to Occupational Health in 4 – 6 weeks, “…to discuss progress around your ability to maintain on your substantive role” (page 489

[50]Whilst Ms Thwaites’ email was innocuous, the Report (or the assessment that had resulted in the Report) seems to mark the beginning of difficulties in the parties’ working relationship. The Claimant asserts, without justification, at paragraphs 45 and 47 of her witness statement that the Respondent had been ignoring what she had been telling it and that it was making her return to her substantive post more unlikely due its “conduct, behaviour and attitude”. It is apparent from the Claimant’s evidence at Tribunal that she was unhappy with Ms Morrow’s reference to it being hoped that within the following 4 weeks her medication, “will reach the therapeutic level and have a positive effect on her symptoms” (of anxiety). We are clear that Ms Morrow was not offering any view as to what was a therapeutic level of medication for the Claimant, a matter she left to the professional judgement of those treating the Claimant. Furthermore, Ms Morrow’s comments were consistent with Ms Pickard’s earlier comments about a planned change in medication.

[51]By 17 October 2019, the Claimant was stating that Occupational Health was delaying her return to work, “with incomplete and unsafe advice”. We do not agree. We find that Ms Morrow identified a return to work date of 30 September 2019 on the basis of her professional assessment that it was anticipated the Claimant’s level of anxiety would then be at a level that would potentially enable a sustained return to work. The question of what the Claimant might do on her return to work is a separate issue to which we shall return.

[52]On 16 September 2019, the Claimant emailed Ms Thwaites stating that she had just had a psychiatrist’s appointment. She wrote, “She’d like OH to contact her regarding how my return to work needs to be managed. Says OH should be consulting her anyway and not making decisions about what they consider therapeutic doses unless they are mental health specialists.” We find that the latter comment reflected a misunderstanding on the part of the psychiatrist based upon what she had been told by the Claimant.

[53]The Claimant went on to identify the psychiatrist as Dr Cathy Walsh based at Addenbrooke’s Hospital in Cambridge. We find that the Claimant’s anxiety levels were understandably elevated ahead of her planned return to work on 30 September 2019 and that she became anxious about the prospect of a return without Occupational Health first having input from the mental health professionals who were supporting her in her recovery. Whilst it was an entirely reasonable request for her to make, we make no criticism of the Respondent or its Occupational Health Advisors for not having sought their input sooner.

[54]On 16 September 2019, Ms Thwaites emailed Ms Connell and observed that the Claimant’s suggestion that they secure input from her medical team seemed a sensible one.

[55]Separately, on 13 September 2019, the Claimant emailed Ms Thwaites with details of a workshop for managers on cancer and the workplace, suggesting that it may assist her understanding in relation to timescales, support etc. We do not know whether they discussed the matter further, though it is accepted by Ms Thwaites that she did not follow the matter up. The Claimant’s email of 22 September 2019

[56]The Claimant continued to take the initiative. In an email to Ms Thwaites dated 22 September 2019, she confirmed that her psychologist at Maggie’s had written a Report, “…stating that I should not be put in a position where I have to make choices about my future. I am not currently in a position to do that (I have consistently been very clear about that).” (pages 502 to 504)

[57]Whether or not the Claimant had been clear (which is not supported by the available contemporaneous documents and something the Respondent would dispute) is beside the point; her email was very clear as to her view by that date. Further, (and again, it is essentially besides the point whether she was mistaken as to what had previously been discussed or agreed in this regard) her email started with her expressing concern that she would only have 12 weeks in which to make a decision about permanent redeployment or a return to her substantive role. Her belief that she was under a time constraint may have been as a result of misinformation or a misunderstanding during the meeting on 1 August 2019.

[58]The Claimant also expressed concern in her email of 22 September 2019, about what she referred to as Ms Morrow’s recommended “…rapid increase in hours to my full 16 hours per week. This does not give me time to adjust, or take into account the fatigue that I have”. Whether or not that is what Ms Morrow intended, it is understandable why the Claimant interpreted Ms Morrow’s Report in that way; Ms Morrow had referred in the Report to a short phased return of hours commencing with 50% in the first two weeks and then building these up over a 4 – 6 week period.

[59]In her email of 22 September 2019, the Claimant went on to refer to the fact that she was in receipt of Employment Support Allowance. She wrote, “The proposal for a safe return to work, therefore, is to return to work for 8 hours a week, and take the other 8 as continuing sick leave. This way I will not be placed under pressure to make decisions about my future until I am able, or to increase my hours before I am physically and mentally able to do so safely…” She highlighted this proposal in bold type. The Claimant did not immediately indicate whether the proposed 8 hours would be spent on AWDs, in a redeployed role, or in her substantive position, though later in her email she wrote, “This does mean that temporary redeployment into a suitable role could be offered, in which to get me back to work for some considerable time, until all avenues of my substantive role have been considered, and deemed appropriate or not.”

[60]In summary, we find that the Claimant was experiencing elevated anxiety ahead of her intended return to work, exacerbated both by her mistaken belief that she may have to make long term decisions within a fixed period and by her lack of confidence in the Respondent’s Occupational Health Advisors, which in turn was further exacerbated by a misunderstanding as to what the Advisor was saying. This led the Claimant to become concerned as to whether she could safely return to work and to perceive that she was being pressured to make decisions, which in turn led her medical professionals to advocate the Claimant being given space to settle back into the workplace before any consideration was given to discussion of her substantive role. Mr Squibb’s involvement

[61]In the meantime and although the Claimant was unaware of this at the time, Mr Squibb had initiated a Management Review of long term sickness absences. In an email to Ms Connell and Ms Thwaites dated 17 September 2019, he wrote in relation to the Claimant, “Need to progress redeployment” (page 497)

[62]Superficially, that would seem to accord with the Claimant’s comments just a few days later on 22 September 2019. However, we find that Mr Squibb did not have in mind redeployment as a temporary measure, rather as a permanent change given Ms Connell’s expressed view on 20 August 2019 that the Claimant was unlikely to be able to return to her substantive role. We note in particular Mr Squibb’s expressed concern at the outset of his email that staff sickness had increased and in concluding his email that he wrote, “Can I please be updated on all of these cases by the end of the week? Our sickness has rocketed again recently and there appears to be quite a few currently off that really need progressing through the process”. In his desire to progress staff through the process, we find Mr Squibb lost sight of the person, in this case a very long serving employee with potentially complex mental health needs. Dr Shravat’s letter

[63]On 24 September 2019, the Claimant forwarded to Ms Thwaites a letter from Dr Aneesh Shravat, a Chartered Psychologist at the Maggie’s Centre in Cambridge. The letter is seemingly dated 2 September 2019, though this may be a typing error. Dr Shravat wrote, “A return to work plan that is able to take into account her need for a phased return and to find a role in which she can feel safe and build her confidence will be a significant contributory factor to helping Mrs Rayner manager her post treatment challenges. It would be beneficial for Mrs Rayner if she is not pressured to make decisions and is given space to explore appropriate working environments in which she is able to successfully manage the post treatment risks associated with her cancer treatment.” (pages 506 and 507)

[64]In the Claimant’s covering email to Ms Thwaites, she asked whether Occupational Health were contacting Dr Walsh, as she had previously requested they do, a request to which Ms Thwaites seems not to have responded and which we find was never followed up by the Respondent. The invitation to a Final Formal Health Review Meeting and subsequent events

[65]On 26 September 2019, the Claimant was invited to attend a Final Formal Health Review Meeting to discuss her sickness absence. Although Mr Brown suggested to Ms Thwaites that she was process driven in her approach, we find that the pressure to progress the matter in fact came from Mr Squibb albeit, as with other aspects of the matter, Ms Thwaites was essentially left to take forward an ill-considered plan of action for managing the Claimant’s ongoing absence. We accept Ms Thwaites’ evidence that the meeting invite was based on a template. Whilst the letter stated that all options would be considered, it identified as one potential outcome that the Claimant’s employment could be terminated on grounds of incapability. The Claimant was also reminded of her right to representation at the meeting, adding to the overall sense of formality. We find that even someone without anxiety would have understood from the letter that their continued employment was potentially at risk and, further, reasonably inferred from the fact that it was billed as a final formal meeting, that decisions might be taken at or immediately following the meeting. If this was not the Respondent’s intention and it did not wish the letter to lend that impression, it would have been a simple matter for Ms Thwaites to have edited it accordingly.

[66]The Respondent’s approach seems to us to have been at odds with the provisions of Section 20 of the Respondent’s Sickness Absence Management Policy (page 228 onwards) which envisages that alternative duties, redeployment (whether temporary and / or permanent) and reasonable adjustments and equality issues will all be considered during the earlier formal meeting stages of the process.

[67]We are in no doubt that the letter of 26 September 2019 was a defining moment for the Claimant, leading her to believe that her voice was not being heard and that the Respondent was not concerned to hear the views of the mental health professionals involved in her care.

[68]On 1 October 2019, Ms Thwaites was in contact with Ms Connell by email regarding the terms of a further Occupational Health referral. Her email makes no explicit mention of a potential return to work on AWDs, though it is possible these remained an option in so far as AWDs may have been within the ambit of workplace adjustments to facilitate the Claimant undertaking her substantive role. However, in comments on the Claimant’s email of 22 September 2019, Ms Thwaites wrote, “My concerns to this reducing hours then increasing when able to do so, I am not confident that these hours will ever increase”. (page 511) As with Mr Squibb, and indeed we think most likely taking her cue from him, Ms Thwaites’ focus shifted to redeployment on the basis the Claimant was unlikely to return to her role.

[69]The date of the Final Formal Health Review meeting was fixed for 14 October 2019 to facilitate Ms Parson’s attendance. In the meantime the Claimant took annual leave in order to avoid moving onto nil pay. Ms Thwaites was having weekly welfare calls with the Claimant and the notes of these calls at this time do not evidence any particular concerns on the part of the Claimant when they spoke on 30 September 2019, though they do clearly evidence the Claimant’s dissatisfaction with Occupational Health during an earlier call on 25 September 2019. However, perhaps on advice from Ms Parsons, by 11 October 2019 the Claimant was expressing concern as to the direction of travel. She wrote, “My mental health is severely affected in respect of the implications of letter inviting me to the meeting, and as you are aware, my specialist has informed you that I am not in a position to make any long term decisions at present about my long term employment”. (pages 521 and 522)

[70]Whilst we find that the Respondent’s actions in sending the letter of 26 September 2019 served to reinforce in the Claimant’s mind that she should not be put under any pressure to make any long term decisions, there is no evidence that her position or needs had changed since her email of 22 September 2019. We find that the pressure she experienced on receipt of the letter came from the suggestion in it that ill health retirement and / or termination of employment might be under consideration, rather than from any suggestion that the Respondent might wish to explore with her the basis upon which she might immediately return to work ie, on AWDs, on temporary redeployment or in her substantive role, albeit with adjustments. We do not consider that discussion of the practical arrangements for her return was necessarily ‘off limits’ at this time.

[71]The Claimant’s email of 11 October 2019 was sent at 4:47pm. It was a Friday afternoon. She was acting on advice and explained this in a text message to Ms Thwaites at 8:20am on Monday 14 October 2019, apologising that her email was “late”. We do not criticise the Claimant for any delay as it was outside her control, though nor do we criticise Ms Thwaites for only confirming a few minutes before the meeting was due to start that it would not go ahead but instead be rearranged to another date. This angered the Claimant who had arrived at the Respondent’s premises for the meeting. Her frustrations, whilst understandable, were ultimately unavoidable; the Respondent had effectively had two hours or so that morning in which to consider the Claimant’s request for the meeting to be postponed. Ms Thwaites endeavoured to send a supportive response to the Claimant, acknowledging in it that the previous Occupational Health Report, “maybe didn’t provide us with the advice needed” before going on to state, “this meeting is not to make any final decisions around your employment, it is however, how we can work with and support you in a return to work which is what I believed your goal was.” (page 521). She also committed to questioning the Occupational Health advice previously received, though did not confirm that the Trust would follow up with Dr Walsh as the Claimant had requested. The Claimant’s request to the Respondent to extend her sick pay

[72]On 17 October 2019, the Claimant raised the issue of her sick pay again and whether this might be extended in accordance with the discretion available to the Respondent under Agenda for Change. Ms Thwaites followed up the same day with Ms Connell, referencing their earlier exchanges from August 2019 when Ms Connell had been supportive of this (pages 523 and 526). Ms Connell in turn escalated the issue to Ms Carter; there is no documentation in the Bundle evidencing what, if any, action Ms Carter took on the matter. The Claimant followed up again on 25 October 2019, asserting that she met the criteria for her pay to continue and asking Ms Thwaites to chase HR. In an email to HR colleagues on 30 October 2019, Ms Thwaites stated that she was not aware of the sick pay issue having been reviewed. She went on to say, “Julie did initially look at trying to get an extension of pay due to OH delay for a meeting, however some of the delay appears to be from CR as she does not feel capable of returning to AWDs either and has been given advice from OH there may be a possibility of returning to frontline duties which then set back CR mental health and wellbeing and was advised by her psychiatrist to remain off work as was not mentally well enough to return…” (page 530)

[73]We have considerable difficulty in understanding this emerging narrative of delay on the part of the Claimant. In pressing for the Respondent’s Occupational Health advisors to consider Dr Shravat’s letter and for Dr Walsh to be contacted, and in urging for the 14 October 2019 meeting to be rescheduled whilst this was done, the Claimant was not delaying, she was responding to what seems to have been accepted on the Respondent’s side, or certainly by Ms Thwaites, as a need for Occupational Health to be more fully informed in the matter. It was also inaccurate for Ms Thwaites to suggest that the Claimant had been advised by her psychiatrist to remain off work as she was not mentally well enough to return; what the Claimant had in fact said on 11 October 2019 was, as Dr Shravat had also stated in her September 2019 letter, that she was not in a position to make any long term decisions. That is very different.

[74]On 1 November 2019, the Claimant submitted a “discrimination grievance” dated 31 October 2019 in which she raised amongst other things the issue of the Respondent’s failure to exercise its discretion to extend her sick pay. The grievance was submitted to Mr Marshall who, alongside Ms Carter, had been asked by Ms Connell to consider an extension to the Claimant’s sick pay on 20 August 2019. We return in due course to the remainder of the grievance and how it was handled by the Respondent. However, as regards the sick pay element, it seems that Ms Thwaites discussed this aspect with Mr Marshall and Mr Squibb on 8 November 2019. On 13 November 2019, Mr Mathias forwarded a copy of the Claimant’s email of 17 October 2019 to Mr Squibb in which she had requested the continuation of sick pay. This prompted Mr Squibb to respond, “CR has delayed her final formal by refusing to attend or discuss RTW / AWDs / redeployment so hasn’t engaged in the process” (page 552)

[75]This was a further development in the narrative. Mr Squibb’s comments were unfounded. We have already set out why the Claimant had not delayed. She had not refused to attend the meeting on 14 October 2019, was not refusing any discussion and it was quite wrong for Mr Squibb to say she was not engaging in the process.

[76]On 25 November 2019, the Claimant raised the issue of her sick pay once more, this time with Mr Roberts, copying in Ms Thwaites. The matter was evidently escalated to Mr Squibb because later that day he emailed Mr Mathias to say, “Pay not to be reinstated – rationale CR has been offered AWDs and is now choosing not to attend work to complete these. CR has not been engaging with meetings around redeployment opportunities across the Trust which would enable her to return to full pay if she RTW.” (page 565) We cannot understand how Mr Squibb arrived at this conclusion, which represents a further development in the narrative and is unsupported by the available evidence. As we return to, he made other comments which betray his impatience to move the matter to some form of resolution in whatever form that might take.

[77]The Claimant then chased for an update on 27 November 2019. Mr Squibb’s decision had not then been shared with Ms Thwaites or Mr Roberts. Ms Thwaites followed the matter up with Mr Mathias and at the same time contacted the Claimant to let her know that she or Mr Roberts would be in contact with the Claimant the following week.

[78]On 2 December 2019, Mr Mathias advised Mr Squibb that, “a justification email would be required”.

[79]By 3 December 2019, the Claimant was understandably increasingly stressed and exasperated by the lack of any substantive progress on the issue of her sick pay, particularly when Mr Roberts relayed his understanding gleaned from others that the lack of progress was, “… due to an impending return to work, either back to full duties or at least to undertake AWDs”. (page 570) Mr Roberts’ comments overlook that over three months earlier it had been recognised that the issue essentially sat with the Respondent and its Occupational Health advisors.

[80]On 8 December 2019, the Claimant asked Mr Roberts, “Do you know if I am going to be paid at all?” (page 577) He responded the following day that the issue was still with HR, “But I have made my point firmly and asked for a chase up”. In a further email to Mr Roberts on 11 December 2019, she said, “Still no pay”.

[81]In the meantime, Mr Squibb had outlined his reasons for not extending the Claimant’s sick pay in an email to Ms Carter which concluded, “She is not engaging with the current process or advising what the barriers are for her RTW in any capacity and is not being supportive of the OH process”. For all the reasons above, this was incorrect.

[82]Ms Carter confirmed on 11 December 2019 that she was in agreement with Mr Squibb’s decision.

[83]Further emails ensued on 12 December 2019, including Mr Roberts escalating his concerns to Mr Mathias.

[84]On 13 December 2019, the Claimant wrote to Ms Thwaites, “Pay is essential. Anxiety is increased worrying about it and it does affect being able to cope with other demands in life.” She went on to say, “I have said to Ivan this needs to go right back to basics. I have been knocked back to post treatment anxieties and depression. Getting through the door, without any pressure, is the first step, and after talking it through with Aneesh [Shravat] on Weds, it makes sense to make this, and only this, the focus starting in January. This is the limit that I can cope with ATM. So in terms of support, all I need is my pay. …” (Page 595)

[85]The Claimant emailed Ms Thwaites again on 18 December 2019, complaining, “… no one is telling me what the hell is going on with it”. It was a perfectly reasonable observation for her to make and, as Mr Roberts had, Ms Thwaites escalated the issue. Ms Thwaites expressed the view to Mr Squibb and Mr Mathias that the decision in relation to sick pay had impacted the Claimant’s return to work and expressed concern, “over delaying an already delayed process”. She proceeded to ask how it would be perceived if the matter escalated to an Employment Tribunal. The answer is that we perceive the Claimant to have been treated somewhat poorly in the matter. The Claimant’s First Grievance

[86]We return to the main substance of the first grievance. It and the Claimant’s subsequent grievances were significantly mismanaged by the Respondent. The Respondent’s approach to dealing with the 31 October 2019 grievance in particular was ill thought through and, thereafter, poorly executed. Indeed, inexplicably, the grievance remains outstanding over two years later. Ms Smeaton reminded the Tribunal in closing that the Claimant remains employed by the Respondent and that there is no claim of constructive dismissal before the Tribunal; unfair or unreasonable treatment of an employee is not to be equated with discrimination and, in and of itself, does not provide the basis upon which adverse inferences may be drawn. Nevertheless, the Respondent’s mismanagement of the Claimant’s grievances has cast a long shadow in this case, undermining essential trust and confidence, as well as the prospects for a successful return to work in Autumn 2020 after a period when the Claimant had been obliged to shield during the first months of the Coronavirus pandemic.

[87]The Claimant’s first grievance coincided with Mr Mathias taking up a role as Interim HR Manager in place of Ms Connell. As noted already, Mr Mathias spoke with Mr Marshall and Mr Squibb on 8 November 2019, prompting Mr Squibb’s unfounded comments about the Claimant having delayed and having failed to engage. In an email to Mr Squibb dated 7 November 2019, Mr Marshall (Head of Operations for Suffolk and North Essex) wrote, “I have been talking with Karen Carter and looking at whether we can push this back and deal with this through the sickness policy, Karen is getting some advice today. Could we get a call with Clare Thwaites to discuss some of the points, which I am sure Clare has been supportive etc., but don’t want this to come across to Clare as questioning her ability, as I don’t think that at all”. (page 541)

[88]Neither Ms Carter, nor Mr Marshall gave evidence at the Final Hearing. That is unfortunate. It was left to their more junior colleagues to attend Tribunal to effectively explain and justify the decisions they took. In the case of Mr Mathias, he valiantly held to the line that if only the Claimant had met informally with him and Ms Thwaites, the events that came to pass would have been avoided and the Claimant would have been back at work since November 2018. We do not share Mr Mathias’ optimistic view. We find from the outset that the internally communicated desire of senior managers within the Trust was that the organisation should push back on the Claimant’s grievance, on the basis that they believed the grievance was unlikely to be well founded. Whatever Mr Marshall’s views of the grievance and Ms Thwaites’ abilities, we consider it was incumbent upon him to keep those views to himself so as not to influence the views of others who might have to adjudicate on the grievance which included explicit criticisms of Ms Thwaites.

[89]Ms Carter also weighed into the discussion with what we regard as a punchy email dated 7 November 2019, asserting that, “It isn’t discriminatory to manage someone’s sickness absence under the policy.” (page 543) We do not accept that as an unqualified proposition.

[90]In her email, Ms Carter also suggested that the Respondent did not have to accept the grievance as a formal grievance at that stage. Again, the matter was more nuanced than that under the terms of the Respondent’s policy. Most troubling, was Ms Carter’s concluding comment, “Clare Thwaites to continue to manage the SAM process and hold the meeting to discuss the grievance, with HRM present – I have copied Sylvester in so he can support going forward.” It is very difficult for us to understand why the Respondent decided, or was advised, to proceed in this way. Ms Thwaites was plainly precluded from dealing with the grievance given it included explicit criticisms of her and concerned the Respondent’s management of the Claimant’s sickness absence (which Ms Thwaites had been responsible for as the Claimant’s Line Manager since at least October 2018). Equally inexplicably, Ms Thwaites was not provided with a copy of the grievance itself. We do not understand why Ms Carter or Mr Marshall came to the view that Ms Thwaites might be able to resolve the grievance, even informally, without knowing what the Claimant was aggrieved about. Indeed, we consider that it was grossly unfair on Ms Thwaites to be put in such an invidious position.

[91]We have noted already, Mr Squibb was in contact with Mr Mathias on 13 November 2019. His email concluded, “Ideally to progress the final formal meeting and then come to a conclusion for her sickness case” (page 552)

[92]The same day, Mr Squibb emailed Ms Thwaites stating, “I would suggest holding the final formal sickness meeting and then reviewing what concerns she has around disability at the meeting at the same time” (page 554)

[93]The effect of Mr Squibb’s two emails was to bring pressure to bear on Mr Mathias and Ms Thwaites to progress the situation through to a final formal sickness meeting and to come to some final decision, whatever that may be, regardless of the fact the Claimant’s grievance had been triggered by the Respondent’s escalation of the Sickness Absence Management Policy process to a final formal meeting. We find Mr Squibb to have been rigid and unthinking in his approach.

[94]On 18 November 2019, Mr Mathias belatedly followed up about securing input from the Claimant’s medical advisors. However, the available emails evidence that he understood information might be required from the Claimant’s GP, whereas in fact, as was well documented, the Claimant had specifically asked that the Respondent liaise with her psychiatrist and psychologist.

[95]By 19 November 2019, Mr Mathias and Ms Thwaites were discussing the Claimant’s request in her email of 22 September 2022 to return to work eight hours per week. Their exchange (page 587 of the Hearing Bundle) shows that they were without up to date advice as to the capacity in which the Claimant might return, i.e. whether this would be on AWDs as had been anticipated over a year earlier. Mr Mathias asked Ms Thwaites, “Can we give her the option to work eight hrs first four weeks and thereafter 16 hrs for the next four weeks and this way we can build these hours”.

[96]Whilst their exchange represents some movement in the right direction (albeit the Claimant would say it still evidences a rigid expectation that she would return to her contractual hours within a four week period), Mr Mathias and Ms Thwaites nevertheless persisted with Mr Squibb’s “suggestion” of a further final meeting and sought to identify potential dates for it. In the course of their ongoing emails, Mr Mathias observed that the grievance would need to be resolved before the final formal meeting and went on to refer to a meeting, “to discuss her so called grievance”. In a masterly understatement at Tribunal, Mr Mathias referred to this as a, “poor choice of words” on his part. Instead, we think they betray his impatience with the situation. It is clear from Mr Mathias’ email that he was concerned the grievance should not derail the final formal meeting. We find he was focused on driving the matter through to a conclusion in view of Mr Squibb’s clear expectation that the process should be progressed.

[97]On 22 November 2019, Ms Thwaites invited the Claimant to attend an informal grievance meeting on 29 November 2019. The Claimant responded to say that Ms Parsons was unavailable on that date and for two weeks thereafter. Ms Thwaites responded, “For an informal meeting there is no need for a Union Rep as this discussion is to find ways to resolve the problem / concerns.” She evidently wrote this on Mr Mathias’ advice without, however, having regard to the provisions of Section 7.1 of the Respondent’s Sickness Absence Management Policy which not only confirms the right to be accompanied by a Trade Union Representative at all stages of the process, but also obliges managers to bring this right to the attention of staff, something that did not happen here.

[98]We find that Mr Mathias was seeking to dissuade the Claimant from exercising the rights available to her under the Policy in order to progress the meeting in accordance with Mr Squibb’s communicated expectations.

[99]The Claimant was certified unfit for work on 22 November 2019 until 5 January 2020. Though the sick note refers to breast cancer, we find that the ongoing work situation was by then impacting the Claimant’s mental health. In a thoughtfully worded email to Ms Thwaites dated 24 November 2019, the Claimant set out her various concerns (page 562 and 563 of the Hearing Bundle), concluding that the grievance had not been progressed within 14 days in accordance with the documented policy around informal resolution. She also questioned Ms Thwaites involvement. She specifically requested adjustments, noting that she was experiencing high stress and anxiety. She went on to express the view, “It has probably gone beyond informal anyway” and requested it may need the involvement of someone out of area. In our judgement she was right; we also agree with the Claimant’s observation that she had fully co-operated throughout.

[100]On 25 November 2019, Mr Squibb wrote to Mr Mathias, “Sickness management – final formal needs to be held (I believe this is booked for the start of December??) prior to this CR needs to meet with CT to discuss what reasonable adjustments she feels should be considered as set out in her grievance. I am happy with this approach and am keen to progress this case forwards to either RTW, redeployment or capability as appropriate.” (page 565)

[101]We find this was an instruction rather than guidance and was effectively reiterated in a further email dated 27 November 2019 (page 1054 of the Hearing Bundle) to which Mr Mathias responded stating that, “This will add strength to our case”. Mr Mathias’ primary concern was how the Respondent’s actions might be perceived in any legal dispute. Mr Roberts’ involvement and the Claimant’s eventual return to work in 2020

[102]Mr Roberts acted up into the AGM role with effect from 1 November 2019. His email exchanges with the Claimant from this time evidence his efforts to build trust with her over a number of weeks, coinciding with a deterioration in her interactions with Ms Thwaites, partly as a result of the Claimant’s misunderstanding as to a strict 12 week time limit on any return to work on AWDs. When Ms Thwaites constructively suggested in an email dated 5 December 2019 that their emails were perhaps not conducive to resolving the situation, the Claimant responded in angry terms stating, “It all adds up to making the workplace one which is not safe for me.” Whatever criticisms might be made of the Respondent, Ms Thwaites was not seeking to mislead the Claimant on this issue.

[103]Fortunately, Mr Roberts worked effectively to retrieve what was otherwise rapidly becoming an intractable situation. In a carefully worded intervention on 8 December 2019 (page 577) and an equally sensitively worded email on 12 December 2019 (page 584), he told the Claimant she could, “… return on AWD with absolutely no expectation to return to full duties within 12 weeks, despite what you were told by OH. Clare is more than happy to put that in writing for your reassurance.”

[104]This prompted the Claimant to say that she could only work on getting through the door at that time. As noted already at paragraph 78 above, she said the same to Ms Thwaites, citing the advice of her psychologist. We find this reflected a change from September and October 2019 when the Claimant had been sufficiently resilient to engage in a broader discussion as to what her return might look like. In the event, however, during a meeting with Mr Roberts on 19 December 2019, it was agreed that the Claimant would return to work between 8 – 10 hours per week with the remainder of her hours taken as sickness absence. We note, at page 600 of the Hearing Bundle, that Mr Mathias referred to this as a flexible working request. During cross examination he seemed unable to appreciate the significant distinction between a change to working hours by reason of a reasonable adjustment and as a result of a flexible working request.

[105]Regrettably, the decision already referred to in relation to sick pay communicated to the Claimant on 23 December 2019 set matters back. The Claimant was certified unfit for work by her GP on 6 January 2020 for a further period of one month. On 7 January 2020 the Claimant escalated her concerns in an email to the Respondent’s Chief Executive Officer, Ms Hosein (pages 604 and 605). The focus of her email was the issue of her sick pay and Mr Squibb’s given reasons for refusing to consider an extension to it.

[106]On 13 January 2020, the Claimant was invited to attend a formal long term sickness absence meeting with Ms Thwaites and Mr Mathias to be held on 28 January 2020. The Claimant understandably questioned this given that she had been engaging with Mr Roberts in relation to her return to work. She highlighted the ongoing impact on her mental wellbeing. In all the circumstances we think it was a restrained communication (page 614 – 615).

[107]There was a further unhelpful, ill-informed intervention from Mr Squibb around this time. In an email exchange following on from the Claimant’s email to Ms Hosein, he continued to reference whether the Claimant’s grievance might be accepted formally and referred incorrectly to the Claimant, “… currently stalling progressing with a resolution to this” (page 619). The Claimant was not stalling. She was unwell, partly as a result of what we conclude below was his victimisation of her.

[108]Jessica Watts’ email of 24 January 2020 (page 1628) evidences that she effected a “reset”, referring management of the Claimant’s return to work back to Mr Roberts and Mr Mathias to manage on an informal basis. There was also a recommendation from Helen Adams in the Respondent’s HR team to reinstate the Claimant’s pay. Ms Watts also requested action in relation to the Claimant’s grievance. It was subsequently confirmed by Mr Mathias that James Norman would schedule a meeting with the Claimant to hear her grievance informally. Again, Mr Mathias remained wedded to the idea that an informal resolution was still the way forward, notwithstanding the Claimant had by then escalated her concerns to the Trust’s CEO.

[109]Mr Squibb’s final unhelpful intervention was on 31 January 2020 when in an email to Marcus Bailey timed at 7.04pm, he wrote, “Can you please review the decision myself and Karen took not to extend CR’s pay and advise if you support this? CR was expected to RTW on AWDs initially in September 2019 and then again on 6 January 2020 but continues to refuse to RTW despite reasonable adjustments and AWDs provided to support her in returning to the workplace.” (page 1063) Expressed in those terms, Mr Squibb was communicating that the Claimant was behaving unreasonably and that he was looking to Mr Bailey to support his decision even though he was notionally inviting him to review it. A few minutes earlier Mr Squibb had sent what we consider to have been an hostile and unpleasant email to the Claimant in which he asserted, without providing any justification, that there had been numerous occasions throughout her period of sickness that she had refused to engage with the sickness process. When the Claimant asked him to substantiate his comments by providing specific details he stonewalled her.

[110]Whilst the emails in the bundle inevitably provide an incomplete record of his input to the matter, taken by themselves the emails do not support that Mr Squibb made any positive contribution to the management of the Claimant’s situation in the period 17 September 2019 to 31 January 2020. Mr Norman’s brief involvement

[111]The Claimant’s Fit Note was extended on 6 February 2020 for a further period of one month. During her continued absence, Mr Norman was in contact with her with a view to progressing her grievance. Regrettably, a misunderstanding arose between them. Nevertheless, Mr Norman persisted and it seemed that the matter was back on track. However, when he chased the Claimant up for a date they might meet, she referred to a recent communication from Mr Squibb as having complicated matters (we find this was a reference to Mr Squibb’s email of 31 January 2020 at page 635 of the Hearing Bundle referred to above). She asked Mr Norman to bear with her. He did not hear from her again. With the benefit of hindsight he might have chased her up once more, but we do not think it was unreasonable for him to consider that the matter rested with her and that she would be back in touch if and when she wished to progress her grievance.

[112]What Mr Norman did not know was that the Claimant was in the course of preparing and submitting a second grievance in relation to the sick pay issue. The Claimant’s return to work in March 2020 and period of shielding as a result of the Coronavirus pandemic

[113]The Claimant and Mr Roberts had meanwhile met on 17 February 2020. During their meeting Mr Roberts proposed a further informal meeting with himself, Ms Parsons and Mr Mathias to explore options for a return to work. That meeting went ahead on 4 March 2020 when it was agreed that the Claimant would return to work on AWDs as part of a phased return to work and that she would work eight hours per week initially, in two blocks of four hours. We note that it was documented that her unsocial enhancement would be reinstated when she returned to 16 hours per week, to be mutually agreed. In other words, it was envisaged in the discussion on 4 March 2020 that the Claimant would return to her normal contractual hours of work. The outcome was documented in form HR2a at page 660 of the Hearing Bundle. It evidences that, handled sensitively, any discussion was not limited to simply getting the Claimant through the door, but could begin to touch upon the longer term.

[114]Sadly, Mr Roberts’ efforts were undone when, in March 2020, the Claimant commenced shielding during the initial weeks of the Coronavirus pandemic. In an email dated 16 March 2020 the Claimant stated that her diabetes meant that she was clinically vulnerable. A risk assessment completed by Mr Roberts additionally refers to the fact she was recovering from breast cancer, though a subsequent risk assessment completed by the Claimant in August 2020 documents that she did not have a shielding letter or, curiously, any underlying condition.

[115]It is a trite observation that the initial weeks and months of the Coronavirus pandemic was an unprecedented time that created significant challenges for organisations, not least one such as the Respondent at the front line in terms of public health.

[116]The Claimant initial focus on returning to work had been catching up on her mandatory training. On 20 March 2020, she and Mr Roberts spoke, when she asked whether there was something she might do from home. Mr Roberts was in contact with a colleague in Operational Support who expressed enthusiasm for the Claimant to provide support to its Ambulance Operations Centre in Bedford, though following further emails Mr Roberts reported that, having discussed the matter with the Claimant, the risks were felt to be too great, but that he would keep the situation under review with the Claimant. Subsequently, on 4 April 2020, the Claimant acknowledged in an email to Mr Matthias that there was little she could do to help from home (page 680).

[117]Towards the end of May 2020, Mr Roberts was in contact with the Claimant and provided her with details of some online CPD courses. The Claimant believes she may have looked at the details of one of them, but her evidence at Tribunal indicated limited enthusiasm on her part. We note that on 4 April 2020 she had volunteered to Mr Matthias that she was not checking her emails very often. As we identify below, she did not take any further action on her mandatory training.

[118]On 3 July 2020, Mr Matthias emailed Mr Roberts to see whether he had had a grievance conversation with the Claimant (page 689). He had been prompted to do so on 12 May 2020 by Sudha Pavan, Deputy Director of Workforce, when he had advised Ms Pavan that he had discussed the matter with Mr Roberts a couple of weeks earlier and asked him to speak with the Claimant during their weekly calls. Mr Mathias seems to have been tardy in following the matter up. His unchallenged evidence was that he did not receive any response from Mr Roberts albeit there is no evidence he followed the matter up himself.

[119]In July 2020, Ms Bromley stepped into the role of Interim AGM as Ms Thwaites was going on maternity leave. On Ms Bromley’s appointment Mr Roberts returned to his substantive LOM role, a lower grade role. Mr Matthias briefed Ms Bromley about the Claimant’s case, amongst others, though we find, perhaps inevitably given the ongoing lockdown and involved history to the matter, that it was relatively high level briefing.

[120]In the meantime, Ms Avery met with the Claimant at her home on 14 July 2020 to conduct her annual appraisal (at the time called a ‘Compassionate Conversation’). As part of this conversation they discussed completion of the Claimant’s mandatory Workbook which entails various e-Learning courses and takes several hours to complete. The Claimant described feelings of being overwhelmed at the thought of completing her Workbook. As part of the Compassionate Conversation an action plan was identified for the Claimant to complete the Workbook in stages; namely two courses a week until the Workbook was completed. This was confirmed in a signed Personal Development Plan (pages 690 – 697). There is no suggestion in the Plan that the Claimant was seeking, or capable of taking on, additional work at this time, on the contrary she was struggling with the Workbook as it was. The Plan refers to non-work related difficulties in the Claimant’s family life impacting her resilience.

[121]During the meeting on 14 July 2020, Ms Avery informed the Claimant that Ms Bromley wanted to meet her. The Claimant’s evidence is that she understood this would be purely an introduction, an opportunity to say ‘Hi’, though text messages between the Claimant and Ms Avery at the time give little or no indication as to the form any meeting might take or the matters that would be discussed.

[122]On or around 24 July 2020, the Respondent contacted staff about the need for revised risk assessments; it was assessing staff in terms of their vulnerability for front line working. The Claimant completed an online risk assessment on 25 August 2020. Her score indicated that she was at an increased risk from Covid-19 by reason of age, diabetes, high blood pressure and working face to face with patients (pages 701 and 702). At Ms Bromley’s request, Ms Avery completed a generic employee risk assessment follow up record with the Claimant on 5 September 2020. This notes that the Claimant was not well enough for her substantive role, but looking at temporary redeployment opportunities. Ms Avery further noted that the Claimant had consented to an Occupational Health referral, “Once a temporary redeployment role has been identified”. That confirms to us that the Claimant was still expecting to have a conversation about redeployment.

[123]There is an issue between the parties as to whether or not Ms Bromley had contacted the Claimant and referred her to Occupational Health in August 2020. However, it is not in dispute that Kevin Hamlyn, Leading Operations Manager – Central Cambridgeshire, was in contact with the Claimant on 22 August 2020 to discuss potential admin roles in Bedford. There was also the possibility for the Claimant to work from home with the Respondent’s Recruitment Team. Mr Hamlyn emailed the Claimant a temporary redeployment vacancy list, together with a risk assessment form. He also asked her to let him know when she had completed her Workbook. We find that she had stopped working on this, since she reported on 25 August 2020 that her IT password had expired.

[124]The Claimant complains that the Respondent failed to implement or facilitate working from home. There is no evidence that there was work for her to do or, if there had been work for her to do, that she would have been able to do it given the limited work she was able to do in her first days back at work in March 2020 and inability or lack of motivation over the following five months to check emails and progress her mandatory training. She expressed no interest in the recruitment position highlighted to her by Mr Hamlyn in August 2020. When she completed her risk assessment on 25 August 2020 she stated that she envisaged returning to work on AWDs once it was safe for her to do so. She envisaged a physical return to the workplace rather than working remotely. In all the circumstances, we conclude that the Claimant’s offer of help to Mr Roberts at the outset of the pandemic was a well-intentioned expression of solidarity with colleagues at risk on the front line but that it did not reflect that the Claimant was in a position to take on additional work from home whilst shielding. We find that this state of affairs did not change throughout the period she was shielding. Ms Bromley’s involvement, including the September 2020 telephone calls

[125]On 31 August 2020, the Claimant’s period of shielding ended. The Claimant was telephoned by Ms Bromley on 2 September 2020. Ms Bromley thought she had telephoned the Claimant on 4 September 2020 as she was on leave on 2 September 2020 and thought it unlikely she had dealt with the matter if she was on leave. However, she could not be certain. Emails passing between the Claimant and Ms Avery on 3 September 2020 at pages 712 and 713 of the Hearing Bundle, confirm that the call took place on 2 September 2020. It prompted the Claimant to observe in an email to Ms Avery the following day, “I’m starting to feel as if too many people are involved in getting me back. Ivan was managing my return pre-Covid, then that all went out the window!!! Had a panic attack on the phone with Jo yesterday. She is trying to be helpful, but sent my head into a spin!”

[126]In a further email on 3 September 2020 the Claimant asked Ms Avery not to say anything to Ms Bromley. She said she had not expected endless questions, though equally acknowledged that she was having “a low week”. She went on to say, “I need to keep expectations low and not look too far ahead. Do you see yourself coming back front line is off limits right now!” In response, Ms Avery referred to Ms Bromley as “very pro-active and productive”, which prompted the Claimant to observe, “she means well, but wow!”.

[127]Whilst we find that the call on 2 September 2020 may have led the Claimant to experience elevated feelings of anxiety, we do not accept her evidence that she had an actual panic attack. We accept that Ms Bromley’s reason for calling the Claimant was not simply to introduce herself, but to make her aware of opportunities for temporary redeployment, including work she could potentially do from home in circumstances where her period of shielding had come to an end and was therefore, on the face of it, safe to return to the workplace. During the call they discussed a Medical Records Administrator role, a role in Recruitment (which could be done remotely or at Bedford, and which we find was the same role that had been highlighted to the Claimant by Mr Hamlyn) and a Make Ready Operative (MRO) role which involved washing vehicles, restocking them and preparing them to go out. We do not uphold the Claimant’s allegation she was pressured by Ms Bromley to make long term decisions during this call. We find that Ms Bromley endeavoured to understand what the Claimant was hoping to do going forward, including whether she hoped to return to front line duties at some point. We accept her evidence that her limited discussion with the Claimant in this regard was so that she could understand what options she needed to be looking at for the Claimant. The ‘Talent / Maximising Potential Conversation’ section of the Compassionate Conversation with Ms Avery on 14 July 2020 evidences a similar conversation, something Ms Bromley had reviewed on 15 July 2020 and was therefore aware of. The Claimant had raised no concerns in August 2020 when Mr Hamlyn had followed up with details of redeployment opportunities. We think it perfectly understandable therefore why Ms Bromley considered it appropriate to continue these discussions. Whilst Mr Robert’s notes in form HR2a are more limited (page 660), he had had a similar discussion with the Claimant on 4 March 2020 and again on 12 March 2020. Whilst, inevitably, each individual had their own personal style and approach, we find that the discussion on 2 September 2020 was appropriate and supportive, Ms Bromley’s main focus being the immediate issue of the Claimant’s active return to the workplace, in particular temporary redeployment opportunities, as opposed to any longer term solution.

[128]On 6 September 2020, Ms Avery conducted a Welfare Check with the Claimant, following which she emailed Mr Matthias and Ms Bromley (copying in the Claimant) as follows, “[She] would like to know if it would be possible to return to Ivan being a SPOC for her as she is struggling with more people being involved and not feeling secure; she feels she had a positive and trustworthy relationship with Ivan and Sylvester and would like this to continue. Carolynne identified that she has difficulty talking about the future and this causes unsettled feelings and panic… Jo – this is not personal – but Carolynne feels we could be set back from starting to form new relationships given the complexity of her situation and her emotions towards things.” Ms Avery went on to report that whilst the Claimant was initially anxious about the possibility of returning to work in a temporary redeployment role, she had become particularly interested, indeed “excited”, about the MRO role in Cambridge. She suggested a meeting between the Claimant and Mr Matthias and Mr Roberts in order to progress the matter.

[129]Ms Bromley did not feel this was appropriate. In her witness statement she cites the fact that Mr Roberts had returned to his substantive role as a LOM and no longer had the requisite authority to oversee any temporary redeployment or reasonable adjustments. She also asserts that this would have made the process very cumbersome.

[130]We have difficulty in understanding Ms Bromley or the Respondent’s objection to Mr Roberts’ continued involvement. Even if Mr Roberts had returned to his substantive role as an LOM, he had practical experience of managing the situation over a period of many months. Indeed, by his efforts, he had been able to secure the Claimant’s tentative return to work after over one year’s absence.

[131]There was some suggestion at Tribunal that Mr Roberts had become too personally involved in the Claimant’s situation. He was absent from work on sick leave at the time of the Hearing and there was some suggestion that he had become ill as a result of the pressures of managing the situation. However, the evidence in this regard was limited. Issues were alluded to but we were not provided with further details.

[132]In September 2020, Ms Bromley spoke with the Respondent’s Occupational Health Advisors as she understood a referral had been made, but no advice had been forthcoming. She was informed that the Claimant had not engaged. In fact the documents at pages 732 to 739 of the Hearing Bundle evidence that Occupational Health may have been unable to contact the Claimant albeit that possibly only one attempt at contact had been made. That does not support a lack of engagement.

[133]The Claimant and Ms Bromley had a further telephone discussion on 15 September 2020. The Tribunal has been unable to reach a consensus about this call. We all find that Ms Bromley embarked upon the call without a comprehensive understanding of the Claimant’s health situation or the full history of the matter, including details of the Claimant’s grievances. Further, we find that the Claimant’s initial concerns in relation to Ms Bromley had settled into a more rigid objection to her involvement. The majority (Employment Judge Tynan and Ms Carvell) find that the Claimant was difficult during the telephone call on 15 September 2020, but that although she tested Ms Bromley’s patience and was rude to her, Ms Bromley handled the discussion appropriately and did not bring pressure to bear upon the Claimant to make long term decisions, rather she followed up appropriately in terms of the Claimant’s Workbook and potential redeployment opportunities, and also asked appropriate questions of the Claimant when the Claimant disclosed that she had been in hospital. They are informed by the contents of a draft letter prepared by Ms Bromley following the conversation, albeit which was not sent, which supports Ms Bromley’s account, whereas the Claimant’s contemporaneous account (page 725 of the Hearing Bundle) does not fully accord with the account in her witness statement. They find that the Claimant’s conduct during the call on 15 September 2020 was not evidence of a ‘fight or flight’ reaction, rather consistent with what she herself said in evidence is her tendency, “to tell it like it is”. Ms Gunnell considers that as the call progressed the Claimant’s conduct was consistent with a ‘fight or flight’ reaction and that Ms Bromley ought to have brought the call to an end rather than persist. The Tribunal are unanimous in finding that in the course of the conversation Ms Bromley said to the Claimant that making tea on the station was not an option and further that she, rather than Mr Roberts, would be managing the Claimant’s return to the station.

[134]Following their discussion on 15 September 2020, Ms Bromley followed up with the Respondent’s Occupation Health Advisors and chased the matter again on 24 September 2020. This led to Ms Bromley receiving conflicting information from them and the Claimant as to whether or not the Occupational Health Advisors had been in contact with the Claimant. This led to a not entirely friendly exchange of emails on 25 / 26 September 2020. Ms Bromley was unaware at this time that the Claimant had submitted a grievance against her (the “third grievance”).

[135]In the meantime, the Claimant had informed Mr Matthias that she wished to explore the possibility of ill health retirement, clarifying on 19 September 2020 that this was only because she felt the Respondent would not be a safe workplace for her. The Claimant’s ongoing absence from work and remaining issues in these proceedings

[136]On 1 October 2020, the Claimant sent a detailed email to John Syson, Interim Director of Workforce. She wrote, “The status quo of Ivan working with me must be restored, and Jo needs to back off because she is interfering without fully understanding my situation”.

[137]Mr Syson responded to say that he would speak with Mr Matthias with a view to getting the return to work discussions back on track. As he would not be in the Trust the following week, he offered to have a discussion with the Claimant on his return on 12 October 2020.

[138]On 6 October 2020, Mr Matthias registered the Claimant on the Respondent’s online redeployment system; it issues automated vacancy notifications to staff. The system is mainly intended for employees at risk of redundancy, and ensures they are alerted to potential redeployment opportunities through to the end of their notice period. We find that Mr Matthias registered the Claimant on the system as a supportive measure to ensure that potential redeployment opportunities were notified to the Claimant on a timely basis.

[139]On 8 October 2020, the Claimant commenced a period of sickness absence and self-certified. This was followed up by a fit note dated 23 October 2020 certifying the Claimant as unfit for work from 15 October 2020 to 14 November 2020, by reason of work related stress and anxiety.

[140]There was a further Occupational Health Assessment in relation to the Claimant on 21 October 2020. The assessment was conducted by telephone. The Occupational Health Advisor, Angela Kirby, noted that the Claimant engaged well with the consultation, but became very distressed when starting to talk about her medical situation and return to work issues. The assessment was effectively curtailed due to the Claimant’s level of distress with Ms Kirby noting that it was not possible to accurately determine the Claimant’s return to work capabilities. It was identified that Ms Kirby would review the situation again on 30 November 2020.

[141]Upon receipt of Ms Kirby’s report, Ms Bromley sought further advice from Mr Matthias, following which she wrote to the Claimant inviting her to an informal meeting to discuss her sickness absence. She confirmed this could either be a Teams meeting or in person. There would have been no reason for the Claimant to believe that the meeting would be other than with Ms Bromley. In fact, Ms Bromley envisaged that the meeting would be conducted by Mr Roberts and Mr Matthias. It is regrettable that this was not made clear to the Claimant, as she contacted the Respondent’s Occupational Health Advisors in a state of some distress following receipt of the letter. It was necessary for them to coach the Claimant in breathing techniques until she felt a little better.

[142]On 3 November 2020, the Claimant spoke with Ms Avery and reported that she had had an anxiety attack on receiving Ms Bromley’s email and letter. Ms Avery reported back to Ms Bromley that the Claimant felt that, “any contact with you induces panic attacks” She went on to say, “Carolynne has confirmed she has applied for ill health retirement and regardless of whether she gets it or not, she won’t be returning to work for EEAST”. This prompted Ms Bromley to ask, “Is this resignation?”

[143]We find Ms Bromley was increasingly exasperated and hoped that the ongoing challenges of managing the situation might be resolved if the Claimant was signalling an intention to leave the Respondent’s employment.

[144]We find that the Claimant had resolved to have no further contact with Ms Bromley, notwithstanding Ms Bromley was her manager. In an email to Andrew Stone at 9.32am on 3 November 2020, the Claimant wrote, “You tried to ring yesterday. I am not answering the phone if its work as I need to know who is calling and why. My understanding is that Jo has taken over, and I have made it very clear that she needs to stay out of things.” We regard this as an unhelpful communication.

[145]When that email came to Ms Bromley’s attention, we find that she could barely contain her frustration and irritation with the situation. In an email to Mr Squibb sent at 7.27pm on 3 November 2020 she wrote, “Luke I spoke to Sylvester tonight; he would like me to assign Rachel to her case as Welfare. I am concerned we are dealing with this differently to the other people I have on LTS. As she has said she won’t be attending her informal sickness meeting tomorrow, but would if Ivan did it. Do we write to her and give her the chance of a second date or if she is unable to talk to us or actually engage with OH can we go straight to capability? She is unfit to do her role and if unable (and unwilling) to do her job as stated, so we just allow that? I honestly do believe this is getting out of hand and we are starting to not be in control with these staff. I have offered more than enough support and so have the LOM team; she has refused to engage with this support. I think enough is enough. The Solicitor also makes promises, it will be a few days for the letter and it still isn’t back. Happy to be led and guided by you both. Jo” The comment in the second paragraph of Ms Bromley’s email fails to recognise that the duty of adjustment in the Equality Act 2010 is based upon a tailored approach.

[146]The planned informal sickness absence meeting on 4 November 2020 did not proceed as the Claimant did not attend it. We find that she had resolved not to attend the meeting on the basis she misunderstood that it would be chaired by Ms Bromley. In any event she was covered by a Fit Note at the time.

[147]Ms Bromley was not alone in expressing herself in intemperate terms. On 6 November 2020, the Claimant was one of three individuals who collectively raised concerns in relation to Ms Bromley alleging that she was, “manipulating, creating lies and disability discriminating against all those named plus at least one other that we are aware of who has their own complaint ongoing”

[148]Whatever the Claimant’s perception of how Ms Bromley had conducted herself during their two telephone calls on 2 and 15 September 2020, there was no basis for the Claimant to accuse Ms Bromley of manipulation or creating lies. It was an unpleasant and unfounded allegation to level against her.

[149]We do not propose, indeed we are not in a position, to make findings in relation to the grievances raised by the Claimant’s work colleagues, though we do note that the other two individuals were the Claimant’s Trade Union Representative and the Representative’s husband, both of whom are friends with the Claimant outside of work.

[150]On 9 November 2020, Mr Syson recommended to the Respondent’s CEO and to Rachel Tremble, HR Advisor – Bedfordshire, that the email of 6 November 2020 should be handled as a Dignity at Work complaint. We consider that to have been a reasonable approach given the concerns in the email related to the Claimant’s and her colleagues’ dignity within the workplace. Moreover, it is unclear from the email of 6 November 2020 what it added in terms of the Claimant’s existing grievance against Ms Bromley.

[151]In response to a request for an update from Mr Syson, Mr Matthias confirmed on 9 November 2020 that during a discussion with Mr Squibb it had been decided that Mr Roberts would be asked to manage the Claimant’s sickness absence on the basis she had been unwilling to engage with Ms Bromley. Mr Matthias referred to this as a reasonable adjustment and confirmed that Mr Roberts was due to speak to the Claimant that day to let her know that he would be managing her sickness absence.

[152]Subsequently, on 13 November 2020, in a joint email with her colleagues, the Claimant stated that she felt that she had no alternative but to seek ill health retirement, citing Ms Bromley and Mr Squibb’s ongoing involvement in her case. We were not told whether Mr Roberts had spoken to the Claimant by then to let her know that he would be managing her sickness absence. It is common ground that they met on 17 November 2020 for an informal long term sickness review meeting. The outcome of the meeting was confirmed in a letter from Mr Roberts dated 21 November 2020. Having summarised the difficulties faced by the Claimant, including what was referred to as a “low threshold to the fight, flight or freeze reaction to stressors”, Mr Roberts referred to the prospect of not being able to return to front line duties as a cause of great sadness for the Claimant. We find this reflects their discussion on 17 November 2020 that the Claimant’s recovery from her cancer, combined with her ongoing depression and anxiety, meant that she was no longer fit to return to her substantive role.

[153]Mr Roberts went on to say, “You feel that you have little choice but to retire from the Ambulance Service because of ill health and you now wish for this process to be initiated.” That is slightly different to what the Claimant had said in her email to Mr Matthias in September 2020, though Mr Roberts’ letter may have been seen and approved by the Claimant before it was issued.

[154]The Claimant was certified as unfit to work between 14 November 2020 and 13 December 2020.

[155]The Claimant had a further telephone Occupational Health Assessment with Kays Medical on 30 November 2020. This Assessment was undertaken by Catriona Lovell, Occupational Health Advisor. Ms Lovell assessed the Claimant as not currently fit to undertake her substantive role and noted that she would have a ‘melt down’ over small things. She identified that the relationship between management and the Claimant had broken down irreparably and that this was now preventing the Claimant’s return to work, even if she was physically capable of undertaking alternative work.

[156]Ms Lovell went on to note, “Ms Rayner is on long term hormone therapy following her treatment for breast cancer. It is not certain how long the side effects of this may last, but for the foreseeable future she may struggle with poor concentration and fatigue which would be a barrier to her returning to work.” (page 119) Aside therefore from irreparable working relationships, the Claimant’s physical health, specifically impaired concentration and fatigue resulting from long term hormone therapy, was additionally precluding her return to work at that time and would continue to do so for the foreseeable future.

[157]Mr Matthias discussed the Claimant’s case with Mr Roberts on 2 December 2020. It seems to have been agreed between them that Mr Roberts would deal with the concerns raised by the Claimant and Mr and Mrs Parsons on 6 November 2020. Mr Matthias prepared a draft letter for Mr Roberts to send to the Claimant (pages 1116 and 1117). Mr Roberts expressed unhappiness with the letter, in particular a sentence in the letter in which Mr Roberts stated that he had carefully considered the concerns raised by the Claimant. Mr Roberts pointed out that he had not in fact had sight of any written complaint, but in any event went on to express concern that as the complaint related to more senior managers in his chain of command, they should be dealt with independently. He expressed concern that becoming involved in this matter and with the Claimant’s other grievances might undermine the relationship established between himself and the Claimant over the last year or so. He may have shared the draft letter with the Claimant and discussed with her how he intended to deal with the matter.

[158]By 14 December 2020, John Syson had taken the decision that the Claimant’s outstanding concerns and grievances should be handled externally. He believed this would expedite matters but also provide essential reassurance for the Claimant, in the sense that any investigator would be at arms’ length to the issues than a manager from elsewhere in the Trust.

[159]From 6 October 2020, the Claimant had been receiving automated messages from EEAST Recruitment, with redeployment weekly reminders. The standard redeployment period of three months was due to end on 6 January 2021. On 30 December 2020 the Claimant received a message stating that she had seven days remaining as a redeployee. This was followed by the following message on 6 January 2021, “Dear Carolynne Rayner Your redeployment period has now come to an end and your employment with us will cease on .”

[160]Although the Claimant contends that the messages amounted to harassment, in paragraph 139 of her witness statement, the Claimant states that she had not really taken any notice of them. When questioned about this by Ms Smeaton, the Claimant said she had not looked at them and described them as something else that was pinging at her. We find that they did not cause her any particular concern at the time they were received by her.

[161]The Claimant attended a formal health review meeting with Mr Roberts and Mr Andrews from the Respondent’s HR department, on 6 January 2021. Mr Roberts wrote to the Claimant on 11 January 2021 summarising the meeting (pages 837 and 838). The Claimant identified that the fact her grievances remained unanswered left her with the view and feeling that the workplace was an unsafe environment for her to be in. She had not said this at their previous meeting. She went on to suggest that she should be stood down from duty whilst “the grievance investigations was awaited”.

[162]Mr Roberts’ letter referred to the “very real” health risks of the Claimant developing lymphedema if she returned to her substantive role and to her expressed wish to pursue ill health retirement. Regrettably, although this was not then known, the application for ill health retirement had been refused. The Occupational Health Advisors to the NHS Pension Scheme, Medigold Health were of the view that the Claimant did not meet the necessary condition of permanent incapacity notwithstanding reports from an Occupational Physician and the Claimant’s GP that the Claimant was unlikely to be fit for the full duties of her employment for the foreseeable future and that it would be difficult to see the Claimant returning to a stressful job. Medigold Health’s view was informed by the fact that further treatment would be available to the Claimant to enable her to return to her duties and that the benefit of such further treatment was likely to be realised before normal pension age, then 15 years away. Otherwise, it is unclear what their professional view was as to the timeframe within which any return to the workplace might be achieved.

[163]On 7 January 2021, Simon King, Head of Operations for Bedfordshire and Luton A&E, wrote to the Claimant to inform her that he had commissioned an investigation into the grievance registered by her on 17 February 2020. The Claimant remained certified as unfit for work; a retrospective Fit Note being issued on 8 January 2021 covering the period 14 December 2020 to 13 February 2021.

[164]Mandy Wilson, an independent investigator contacted the Claimant on 21 January 2021, inviting her to a formal investigation meeting by Teams. The Claimant responded, copying in her Union Representative, requesting that a date and time can be fixed that best suited her Representative. She also sought clarification as to whether Ms Wilson was aware that she had two other outstanding grievances and whether she would be looking at these, or just the grievance of 17 February 2020.

[165]Whilst that takes matters up to and indeed slightly beyond the issues we have to determine in these proceedings, we note that Ms Wilson reported on the Claimant’s grievance on 28 June 2021, but that she did so having only interviewed the Claimant. She did not speak to anyone at the Respondent to secure their account of events or to understand the Respondent’s position. Her failure to do so is inexplicable in our view and, in our judgement, her report serves therefore as little more than a record of what the Claimant told her when they met on 22 March 2021. We cannot sensibly have regard to Ms Wilson’s findings in arriving at our own findings in this case and indeed we were not actively invited by Mr Brown to do so. The Law and Conclusions

[166]For the reasons set out in our detailed findings above, the complaints identified as Issues 6.2.3 and 6.2.4(i) and (ii) (further cross referenced in Issues 5.2.8 and 7.4.9), and 7.4.6 in the List of Issues are not well founded, the Claimant having failed to establish the primary facts upon which her complaints are pursued. We address the Claimant’s remaining complaints below. Claimed disability by reason of diabetes

[167]The Claimant has the burden of establishing, on the balance of probabilities, that she is disabled within the meaning in section 6 of the Equality Act 2010 - Morgan v Staffordshire University

[2002] IRLR 190

. The Respondent conceded disability by reason of cancer and mental health (anxiety, depression, stress), but does not admit (though does not actively deny) that she was a disabled person by reason of diabetes and/or hypertension. However, although the Claimant adopted her Impact Statement as her evidence, she was not cross-examined on it or about either condition.

[168]The Claimant’s diabetes and hypertension are noted in the March 2020 risk assessment and, as such, the Respondent was on notice of the conditions. At paragraph 121 of her witness statement she refers to a diabetic crisis in September 2020 that necessitated attending A&E, and that she was having difficulty managing her condition due to the stress and anxiety she was experiencing. She told Ms Bromley that she had attended A&E when they spoke on 15 September 2020, again further putting the Respondent on notice of the condition. We accept the unchallenged evidence in the Claimant’s Impact Statement as to the effects of her diabetes and hypertension on her day to day activities and how she manages the conditions. She is right to describe them and her other conditions as co-morbid. Diabetes and hypertension are often lifelong conditions. In this case, the Claimant’s depression and anxiety, as well as the medication for her cancer have impeded her ability to take steps to address the conditions. If the impairments had not already lasted 12 months when diagnosed, we consider that they were likely to last more than 12 months from the date they were diagnosed given her comorbidities. As such we consider that the Claimant was disabled by reason of diabetes and hypertension, as well as by reason of depression, anxiety and cancer, by not later than November 2019 and accordingly that when she began shielding in March 2020 this was by reason of all four impairments comprising her disability even if she identified her diabetes as the immediate reason. S20/21 EqA Claims

[169]Section 20 of EqA 2010 defines the duty to make adjustments as follows, 20 Duty to make adjustments(1) …

(2) …

(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.

(4) …

(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put 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 provide the auxiliary aid.

[170]It is not necessary in this case for the Tribunal to have regard to the second statutory requirement. The claimed PCPs

[171]The claimed provisions, criteria and practices (“PCPs”) are set out at paragraphs 4.2.1 to 4.2.11 of the List of Issues. These are the PCPs we must consider in determining the Claim. The Respondent accepts that consistent attendance at work is a requirement and that employees must work their contracted hours. These have operated throughout the Claimant’s employment with the Respondent. As regards paragraphs 4.2.5 and 4.2.6, the Respondent accepts that there was an ‘expectation’ in relation to the matters identified, but not a ‘requirement’. We note in Carerras v United First Partners Research Ltd EAT 0266/15 that the term “requirement” was said to be capable of incorporating an “expectation” or assumption”, which might be sufficient to establish the existence of a practice. In our judgment they have certainly operated since the Claimant was diagnosed with cancer in 2018. The remaining claimed PCPs at paragraphs 4.2.3, 4.2.4, 4.2.7 – 4.2.9, 4.2.10 and 4.2.11 are disputed by the Respondent.

[172]What amounts to a PCP is not further defined within the Equality Act 2010, though the expression is to be construed broadly, avoiding an overly technical approach. According to the EHCR’s Employment Code it extends to any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. The existence or otherwise of a PCP is to be assessed objectively.

[173]Our findings and conclusions are as follows. The Respondent required consistent attendance at work and that employees should work their full contracted hours. By 2018 the Respondent had ceased to operate a policy that any return to work on AWDs should be limited to a period of twelve weeks, even if, in practice, it continued to regard such arrangements as a time limited, as opposed to a long term or even permanent, solution. The PCP at paragraph 4.2.8 is not therefore established. As regards the related PCP at paragraph 4.2.3, we do not consider that the Respondent’s policies, practices or arrangements more generally placed limits on the time period during which reduced hours of work would be accommodated even if, as detailed below, it had broad expectations as to the path that a return to work would follow. Similarly, we do not consider (paragraph 4.2.4 of the List of Issues) that the Respondent only allowed minor or modest reductions to working hours as part of return to work plans; the evidence in relation to the Claimant evidences to the contrary that there were significant reductions / agreed reductions to her working hours in January/February 2019, October 2019 and March 2020. In the circumstances, the claimed PCPs at paragraphs 4.2.3 and 4.2.4 are not established. We agree with Ms Smeaton that the PCPs identified at paragraphs 4.2.5 and 4.2.6 of the List of Issues are in the nature of an expectation, or aim, rather than a requirement. In sickness absence cases, we find that the Respondent’s practice is to take a structured approach to the issue of return, with the aim and expectation of securing a return to full contractual hours within an identified period, unless it is or becomes clear that the employee can no longer sustain a return on their existing contracted hours and working pattern. We disagree with Ms Smeaton that there is no expectation that employees will make long term decisions after a period of time (paragraph 4.2.7); Mr Squibb’s communications in particular evidence the Respondent’s clear expectations in this regard, even if there was no prescribed period of time within which the Respondent expected a decision to be taken. We consider that this PCP has been in operation since before the Claimant’s cancer diagnosis.

[174]As regards the Respondent’s Sickness Absence Management Policy, we agree with the Claimant that the Policy, and the Respondent’s own interpretation and application of it, includes arranging a final review meeting with employees in cases of long term absence, giving consideration to terminating employment, and reducing employees’ pay from full pay to half pay and then nil pay after a prescribed period of absence (paragraph 4.2.9 of the List of Issues). Version 6.0 of the Policy has been in force since 9 August 2018.

[175]We do not uphold that there was a practice of not providing IT equipment to employees working less than full time hours. In the circumstances of the pandemic the Respondent had difficulty in getting hold of IT equipment for people on temporary redeployments, a different issue.

[176]We find that the Respondent’s practice in relation to managing employees who are absent on sick leave is, and was, that they are contacted during their absence by an Assistant General Manager and a designated individual from the Respondent’s HR team. In the Claimant’s case, Ms Avery additionally remained in regular contact with the Claimant as her line manager in order to check on her welfare. We do not consider that these arrangements are to be equated with a practice of “various individuals contacting and/or communicating with employees”. We believe the contended for PCP relates to the number of individuals who have been involved in managing the Claimant’s case. However, that partly reflects the fact that the Claimant raised grievances against and declined to have contact with those who might otherwise have managed her absence i.e, Ms Thwaites, Mr Matthias and Ms Bromley, and that she has sought to involve others or took steps that have led others to become involved, for example Ms Hosein, Mr Norman and Ms Wilson. In all the circumstances, we do not uphold that there was a PCP as identified at paragraph 4.2.11 of the List of Issues. The claimed disadvantages and the Respondent’s knowledge of these

[177]Subject to the Tribunal’s conclusions in relation to the claimed PCPs, the Respondent accepted that the Claimant was potentially at a substantial disadvantage as set out at paragraphs 4.4 to 4.6 of the List of Issues. We remind ourselves that the duty to make reasonable adjustments is with a view to avoiding any PCPs from giving rise to those disadvantages.

[178]From October 2018 the Respondent understood the Claimant’s limitations in terms of being able to immediately return to her substantive role working her full contracted hours. In light of the difficulties experienced by the Claimant in maintaining consistent attendance in January/February 2019, we consider that it knew or could reasonably have been expected to know that the Claimant may be at a substantial disadvantage in terms of increasing her hours at predetermined levels. Otherwise, however, it was not until 22 September 2019 (or at the very latest 24 September 2019, when the Claimant provided it with a copy of Dr Shravat’s report) that it knew or could reasonably have been expected to know that the Claimant was at a substantial disadvantage in terms of making long term decisions and subject to the substantial disadvantages set out in paragraphs 4.5.1, 4.5.2, 4.5.5 and 4.5.6 of the List of Issues. Reasonable adjustments

[179]Paragraph 4.8 of the List of Issues identifies a range of adjustments that the Claimant asserts might reasonably have been made in relation to her. The burden of proof does not, of course, ultimately lie with the Claimant. She need only identify in broad terms the nature of the adjustments that would address the disadvantages for the burden to shift to the Respondent to show that the disadvantages would not be eliminated or reduced by the proposed adjustments or that they would not otherwise be reasonable adjustments to make.

[180]One of the practical difficulties with a number of the Claimant’s suggested adjustments is that they are expressed to be without limitation of time. We consider that to be unworkable and, ultimately therefore, unreasonable in so far as the Claimant might return to work on AWDs with no limitation of time as to how long that arrangement, or similarly a temporary redeployment, might last for. An employee’s working arrangements are rarely set in stone, but the Respondent was reasonably entitled to some degree of certainty in terms of the Claimant’s working pattern. AWDs and temporary redeployment are short term measures intended to support an employee either to return to their substantive role or to secure permanent redeployment into another position. They are, in and of themselves, reasonable adjustments, though we consider that where an employee is disadvantaged by them adjustments can and should reasonably be made to how they are applied or operated in practice.

[181]As regards the Claimant’s suggestion that working from home should have been implemented or facilitated from 16 March 2020 and, to this end, that she should have been provided with IT equipment, we have not upheld the claimed PCP at paragraph 4.2.10 of the List of Issues. In any event, home working and IT equipment would not have addressed any disadvantages experienced by the Claimant by reason that she was shielding. The identified work for her to do was to get up to date with emails and complete her Workbook, something she failed to do whilst shielding and which had nothing to do with a lack of available IT equipment. There was no other work she might have done or been fit to do from home.

[182]In the judgment of the Tribunal, from 2018 until September 2019 the Respondent took such steps as it was reasonable for it to take to avoid the disadvantages experienced by the Claimant over that period by implementing a time-limited phased return to work on reduced hours on AWDs in January 2019 and subsequently planning for a broadly similar return on 30 September 2019, in both cases on the basis that the phased return might be extended and/or altered as necessary to support the Claimant in maintaining her return to work, and also by its willingness to consider redeploying the Claimant on either a temporary or permanent basis.

[183]Thereafter, in particular acting upon the Claimant’s email of 22 September 2019 and the advice referred to in it, the Respondent ought reasonably to have implemented, but failed in its duty to make, the following adjustments in respect of the Claimant’s anticipated return to work on or after 30 September 2019 in order to seek to address the disadvantages then being caused to the Claimant by the relevant PCPs:(a) Permitting and/or arranging for the Claimant to return to work on AWDs on the basis that she would work 8 hours per week and that the remaining 8 hours of her normal contractual hours would be treated as sick leave, such arrangements to remain in place if so required by the Claimant for a period of up to six months;

(b) Removing any expectation, in that period of six months as to what the long term solution might be in terms of the Claimant’s job or her days and hours of work;

(c) Deferring any review of the arrangements and/or discussion as to the future until towards the end of the period of six months, unless the Claimant herself initiated discussion before then and, even then, respecting the Claimant’s documented wishes if she expressed a preference to limit the ambit of any discussion, for example to temporary redeployment opportunities rather than the issue of her substantive role;

(d) Putting in place arrangements whereby a welfare officer would be appointed for the Claimant who would contact the Claimant informally at least fortnightly during the six month period referred to, to discuss her progress and thereby help contribute to an environment within which the Claimant might better formulate her own thoughts at her own pace regarding her future, such welfare officer to be at the level of a Leading Operations Manager or above but not directly involved in managing the Claimant; and

(e) Extending the Claimant’s sick pay so that she continued to be paid half pay for an additional period of up to 13 weeks from the date it otherwise reduced to nil pay and making up her pay following her return to work to her full contracted 16 hours for a further period of up to 13 weeks to support her continued attendance and return.

(f) If the welfare officer and the Claimant were also in agreement with this, permitting the welfare officer to be present at any formal review meeting towards the end of the period of six months, and at any other progress discussions initiated by the Claimant. In our judgement, these adjustments would have addressed Dr Shravat’s recommendation that the Claimant should not be pressured to make decisions, but instead be given space to explore appropriate working environments in which she would be able to successfully manage the post treatment risks associated with her cancer treatment.

[184]On or around 4 March 2020, and thereafter, the Respondent complied with its duty as set out in the first part of paragraph 183(a) above, namely it permitted and/or arranged for the Claimant to return to work on AWDs on the basis that she would work 8 hours per week and that the remaining 8 hours of her normal contractual hours would be treated as sick leave. However, it continued to fail to make the other reasonable adjustments identified by the Tribunal immediately above. S15 EqA Claims

[185]Section 15 of EqA 2010 provides, 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. The things arising in consequence of the Claimant’s disability

[186]The matters (the ‘somethings’) arising in consequence of the Claimant’s disability are identified in paragraph 5.1 of the List of Issues and are as follows:a. Surgery for cancer;

b. Time off work due to ill-health;

c. Stress, anxiety, depression, fatigue and other related or similar symptoms;

d. Inability to work her contracted hours;

e. Inability to return to her contracted duties/substantive role;

f. Inability to work more than 8 hours per week, alternatively difficulties associated with working more than 8 hours per week;

g. Inability to make (alternatively, difficulty making) long term decisions about her future employment;

h. Her requirement for longer or more flexible return to work without the requirement to increase at pre-determined levels and/or return to a specified role or determine a role;

i. The requirement to ‘shield’ in accordance with medical advice and/or Government guidance concerning the COVID-19 pandemic (and therefore not being able to attend the Respondent’s premises);

j. Her vulnerability to COVID-19; and

k. Her hypertension.

[187]In response to an invitation from the Tribunal in the course of the hearing, Ms Smeaton indicated that the above matters were not in dispute.

[188]For convenience we deal with the automated messages (Issue 5.2.9) later. The unfavourable treatment and reasons for it

[189]As regards the alleged unfavourable treatment relied on by the Claimant and the reasons for it (adopting the numbering in the List of Issues):5.2.1 For all the reasons set out in paragraph 177 above, we conclude that the Respondent did not facilitate a sustainable return to work for the Claimant between September 2019 and February 2020. That was unfavourable treatment and was because of the matters referred to in paragraphs 5.1.2 to 5.1.8 of the List of Issues.

5.2.2 The Claimant was undoubtedly treated unfavourably by being invited on 26 September 2019 to attend a final formal meeting on 14 October 2019 at which the termination of her employment was stated to be a possible outcome. That was because of the matters referred to in paragraphs 5.1.1 to 5.1.8 of the List of Issues.

5.2.3 The Claimant’s pay was reduced to half pay because of the matters referred to in paragraphs 5.1.1 to 5.1.6 and 5.1.8 of the List of Issues. It was clearly unfavourable treatment.

5.2.4 Likewise the move to nil pay was unfavourable treatment of the Claimant for all the same reasons as above.

5.2.5 The Claimant’s sick pay was not reinstated or extended because Mr Squibb believed that she was not engaging, including that she had failed to attend the final formal meeting on 14 October 2019. Her failure to do so was something arising in consequence of her disability, namely her inability to make, alternatively her difficulty making, long term decisions about her future employment. 5.2.7 The Respondent did not provide the Claimant with additional work whilst she was shielding between 9 March and 31 August 2020, but this was not unfavourable treatment in circumstances where the Claimant had only just returned to work following a lengthy period of absence, was on limited duties, redeployment had been identified as representing too great a risk for her, had ongoing difficulties in her family life and, critically, was struggling to complete the relatively limited tasks that had been assigned to her, namely getting up to date with emails and completion of her Workbook. 5.2.8 We have not upheld the bulk of the allegations in relation to Ms Bromley’s alleged conduct on 2 and 15 September 2020. Given the majority finding that the Claimant’s conduct on 15 September 2020 was not a fight or flight reaction, namely a manifestation of her mental health issues, Ms Bromley’s interactions with and responses to the Claimant were not because of something arising in consequence of the Claimant’s disability. We return below to the question of whether they were acts of harassment. Justification

[190]As to whether the Respondent’s unfavourable treatment of the Claimant above was a proportionate means of achieving a legitimate aim, the Respondent has the burden of showing that the treatment in question was a proportionate means of achieving a legitimate aim. Once a legitimate aim is established, consideration of whether the employer acted proportionately in the matter requires an objective balance to be struck between the discriminatory impact of the PCP and the Respondent’s reasonable needs.

[191]We accept that the stated aims at paragraph 5.3 of the List of Issues are legitimate aims. However, essentially for all the reasons why we conclude that the Respondent failed in its duty to make adjustments, we consider that the Respondent’s treatment of the Claimant as set out at paragraphs 5.2.1 to 5.2.5 of the List of Issues was not proportionate to those aims. The discriminatory impact upon the Claimant outweighs the Respondent’s aims and interests. Harassment Claims

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

[193]In Richmond Pharmacology v Dhaliwal

[2009] ICR724

it was observed, “A Respondent should not be held liable merely because his conduct has had the effect of producing a prescribed consequence: it should be reasonable that that consequence has occurred… overall the criterion is objective because what the Tribunal is required to consider is whether, if the Claimant has experienced those feelings or perceptions, and it was reasonable for her to do so. Plus if, for example the Tribunal believes that the Claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for the Claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the Tribunal as to what would important for it to have regard to all the relevant circumstances including the context of the conduct in question. One question that may be material is whether it should reasonably be apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the prescribed consequence): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt… (22) …dignity is not necessarily violated by what was said or done which was trivial or transitory, which should have been clear but any offence was unintended. But it is very important that employers and Tribunals are sensitive to the hurt which can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

[194]In Land Registry v Grant

[2011] ICR 1390

,CA, Elias J said, “It is not importing intent into the concept of effect to say that intent would generally be relevant to assessing effect. It would also be relevant to deciding whether the response of the alleged victim is reasonable”.

[195]The conduct relied upon by the Claimant as being unwanted conduct is set out at paragraph 6.2 of the List of Issues. We have already indicated why Issues 6.2.3 and 6.2.4(i) and (ii) do not succeed. Our conclusions in relation to remaining Issues are as follows:6.2.1 The Respondent’s actions in writing to the Claimant on 26 September 2019 were unwanted and, though not intended, had the effect of creating an intimidating etc environment for the Claimant. In circumstances where the letter was not in accordance with the Respondent’s documented Policy, which envisages that the bulk of the issues would be discussed during the formal stage of the process, we consider that it was reasonable for the Respondent’s actions to have that effect upon the Claimant. The complaint therefore succeeds.

6.2.2 Mr Squibb’s statement in his letter of 23 December 2019 that the Claimant had not engaged was unfounded. It was unwanted conduct and, whether or not this was intended, it had the effect of creating an intimidating etc environment for the Claimant. We consider that it was reasonable for his conduct to have that effect upon the Claimant. The complaint therefore succeeds. 6.2.4(iii) and (iv) The Tribunal accepts that the ‘tea’ comment was unwanted by the Claimant. The majority decision of the Tribunal (Ms Carvell dissenting) is that, although not intended to create an intimidating etc environment, the comment both had that effect and it was reasonable for it to do so notwithstanding the majority finding of the Tribunal that Ms Bromley’s conduct during the call was otherwise entirely appropriate. Even though the Claimant may have been difficult, indeed rude, to Ms Bromley, the ‘tea’ comment was perceived by the Claimant as belittling of her disability and the significant barriers it presented in terms of the work she could do in the immediate period following any return to work. Ms Carvell considers that Ms Bromley was merely seeking to explain to the Claimant why she was keen to explore redeployment opportunities, even if she might have expressed herself more eloquently. Ms Carvell considers that it would be encouraging hypersensitivity on the part of the Claimant to conclude that she would reasonably have been offended by the comment in circumstances where she was being difficult and “telling it like it is”. However, the majority view is that it was reasonable for the Claimant to take offence even if she was not entirely innocent in the matter. The unanimous judgment of the Tribunal is that Ms Bromley made a factual statement when she informed the Claimant that Mr Roberts would no longer be managing her return to work. The Claimant may have been unhappy with the implications of Mr Roberts’ return to his substantive role, but the mere fact this was communicated to her did not of itself reasonably give rise to the perception of a hostile etc working environment. We return to the question of whether it was an act of victimisation. 6.2.5 We do not consider that the automated messages were unwanted. Even if it could be said that the last two automated messages were unwanted, we think it would be encouraging hypersensitivity to conclude that they caused any real offence or led to the creation of an intimidating etc environment for the Claimant. She would or ought reasonably to have understood that the messages were primarily intended for those at risk of redundancy who might otherwise be leaving the organisation and, in her case, that they had been automatically generated and did not mean that her employment was about to terminate. On her own evidence she took little or no notice of the messages at the time. 6.2.6 Ms Bromley’s letter to the Claimant dated 30 October 202 was not unwanted per se, it was the fact it emanated from Ms Bromley that meant it was experienced by the Claimant as unwanted. Ms Bromley was the AGM with responsibility for managing her sickness absence. Her letter might have been clearer that the planned meeting would be conducted by Mr Roberts and Mr Matthias, but if the Claimant was uncertain on the matter it was a simple enough matter for her to seek this clarification from Ms Bromley or Mr Matthias. Instead, her response to the letter was informed by her settled view that she should have no further interactions with Ms Bromley, who needed to “back off”. That was not the Claimant’s decision to take. In our judgment it was unreasonable for her to regard the letter as creating a hostile etc working environment for her. Victimisation Claims

[196]Section 27 of the EqA provides, (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.

[197]Section 27(2) goes on to define the protected acts as including, (d) making an allegation (whether or not express) that A or another person has contravened this Act.

[198]The Claimant relies upon 15 matters (or 18 matters if the three grievances are regarded separately) as alleged protected acts, spanning the period 14 September 2018 to 31 January 2020 when she issued her first Employment Tribunal Claim. They are set out at paragraphs 7.1.1 to 7.1.15 of the List of Issues. In our judgment they all constitute protected acts as the Claimant plainly asserts in them that the Equality Act 2010 has been contravened. Her language is not ambiguous, rather she makes numerous assertions that she is being discriminated against on grounds of disability.

[199]The alleged detriments to which the Claimant was subjected are set out at paragraph 7.4 of the List of Issues. We set out below both our conclusions as to whether the Claimant was subjected to those detriments and, where she was, the reasons for this.

[200]In the context of whistleblowing, an organisation’s failure to investigate, or excessive delays in investigating, a protected disclosure is capable of amounting to a detriment. In our judgment this is equally the case where an organisation fails or delays in investigating grievances that allege discrimination. However, section 27 will only be infringed if the protected act materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the employee. In the case of a failure to deal with a protected act or disclosure, simple incompetence in dealing with matters promptly may be an effective defence. However, where an employee who does a protected act is subject to a detriment without being at fault in any way, the Tribunals will need to look with a critical – indeed sceptical – eye to see whether the innocent explanation by the employer for the adverse treatment is indeed the genuine explanation. The detrimental treatment of an innocent employee necessarily provides at least a prima facie case that the action has been taken because of a protected act and it calls out for an explanation from the employer. Once an employer satisfies the Tribunal that it has acted for a particular reason, that necessarily discharges the burden of showing that the proscribed reason played no part in it. It is only if the Tribunal considers that the reason given is false (whether consciously or unconsciously) or that the Tribunal is being given something less than the whole story, that it may be legitimate to infer detriment in accordance with the principles in Igen Ltd. v Wong. That question is essentially one of fact for us. The issue is not whether that claimed non-discriminatory reason was a good reason but whether it was genuine.7.4.1 Ms Thwaites’ wrote to the Claimant on 26 September 2019 because Mr Squibb had made clear his expectation that the process needed progressing in relation to the Claimant and others on long term sick leave. Her letter was not a response to the second protected act by the Claimant (we believe she was unaware of the first protected act), rather it was in compliance with what she understood to be a clear instruction to pro-actively manage the Claimant’s ongoing absence with a view to redeploying her.

7.4.2 Mr Squibb’s conclusion that the Claimant was not engaging was unfounded, but it reflected a false, albeit genuine, narrative that took hold in his mind because he failed to take sufficient care to establish the facts. It reflects incompetence rather than a response to any protected act.

7.4.3 By contrast, the Respondent has failed to address its rationale for refusing to extend or re-instate the Claimant’s sick pay set out in Mr Squibb’s letter dated 23 December 2019, specifically his statement that she had been invited to attend the final formal meeting, “but as a substitute you are raising concerns through e-mails”. The principal emails to which he was referring was her email of 22 September 2019 and grievance of 1 November 2019, the latter of which he had shown his disdain for when he wrote in an email to Ms Thwaites on 7 November that it wasn’t discriminatory to management someone’s sickness absence under the policy. The comments in the second numbered paragraph of Mr Squibb’s letter dated 23 December 2019 cry out for an innocent explanation, albeit which has not been forthcoming. The complaint therefore succeeds.

7.4.4 & 7.4.10 We do not repeat our detailed findings above regarding how the Claimant’s grievances have been handled. It is often said that the road to hell is paved with good intentions. A significant number of people have become involved in the Claimant’s case, a number of whom clearly acted with the best of intentions, but in the process no single person with the requisite experience and authority seems to have taken ownership of the matter to see it through to a conclusion. Various decisions were ill thought through and, too often, those who were left to implement those decisions lacked the requisite authority, confidence and experience to do so successfully. At times they were provided with an incomplete picture or insufficiently clear instructions, further compounding the situation. Whilst there are important lessons to be learned by the Trust’s senior leadership, we are satisfied that the catalogue of errors set out in our findings above reflect management and organisational failings and weaknesses rather than a response to the fact the Claimant had done protected acts.

7.4.5 We have set out in some detail in our findings above how the Claimant’s correspondence in relation to sick pay was handled. The issue became mired in the Respondent’s internal processes. There was no particular delay each step of the way, though collectively it adds up to a protracted process in which the Respondent, or at least various of its senior managers, seem to have lost sight that there was a long serving employee with significant underlying health issues awaiting a decision about her pay in the run up to Christmas. As above, we consider the overall delay was the product of management and organisational weaknesses rather than a response to the fact the Claimant had done protected acts. 7.4.7 We have already set out in detail the reasons why the Respondent did not implement or facilitate home working for the Claimant. These had nothing whatsoever to do with the fact she had done protected acts. 7.4.8 The Respondent has failed to adequately explain why Mr Roberts was not permitted to continue to manage the Claimant’s ongoing absence whilst she was shielding or to manage her planned return to the workplace in September 2020, particularly given his efforts in this regard in late 2019 / early 2020 had managed to get her through the door. We can understand why normal line management might resume once the Claimant was back at the station, but there has been no clear or coherent explanation by the Respondent why Mr Roberts could not continue to manage the situation through to September 2020 or such later date as she could be managed and supported back to the workplace. Various explanations were put forward, but they were not consistent or weighty. In the absence of a satisfactory innocent explanation, we infer that the Respondent’s failure to countenance this was because she had done protected acts. 7.4.9 The complaint in relation to Ms Bromley’s ‘tea’ comment succeeds as a complaint of harassment. We do not consider that she made the comment because the Claimant had done protected acts, indeed it is unclear to what extent she was aware that the Claimant had done such acts. Ms Bromley’s comment that Mr Roberts was no longer managing the situation was a statement of fact, it was made in response to comments by the Claimant rather than because she had done protected acts, even if the decision itself was an act of victimisation. Unauthorised Deductions from Wages

[201]The Claimant’s case is pleaded at paragraphs 44 to 48 of the Grounds of Complaint in her Second Claim. In summary it is argued that under Agenda for Change she was entitled to reinstatement or extension of her sick pay in specified circumstances. We disagree. At most there is a discretion available to the Respondent to extend sick pay. We accept Ms Smeaton’s contention that in a claim of unauthorised deductions from wages the Tribunal has no jurisdiction to determine whether any exercise of discretion was rational; any such complaint is a matter for the Civil Courts. We are satisfied that the Respondent gave consideration to whether to exercise the discretion available to it under Agenda for Change. We are critical of Mr Squibb’s reasoning, but that does not mean that there was an actionable unauthorised deduction from the Claimant’s wages. We consider ourselves bound by the decisions of the Court of Appeal and EAT respectively in New Century Cleaning Co Ltd v Church

2000 IRLR 27

and Balfour Beatty Power Networks Ltd v Tucker and others EAT 182/01, as distinguishable from Tradition Securities and Futures SA v Mouradian

2009 EWCA Civ 60

in which a contractual discretion was exercised in the Claimant’s favour, who was therefore able to pursue a claim in respect of a declared bonus.

[202]Although not pleaded, the Claimant additionally seeks her full pay from April 2020 to date. This was originally put forward on the basis that the Claimant has received half pay since that date; in fact she has been paid at her full rate of pay, albeit for 8 hours’ work as opposed to her ‘normal’ full 16 hours. When the Claimant commenced shielding she did not stop working, even if she struggled to check emails and complete her Workbook. She was not certified sick and there is no evidence before us that she was furloughed. In our judgement, she continued working, albeit from home. Her workload and hours did not increase throughout the period she was shielding from the agreed 8 hours in place since 12 March 2020. The Claimant did not request any increase in her hours. In our judgement the Claimant was paid the sums properly payable to her under her contract throughout her period of shielding by reference to the adjusted working arrangements in place throughout.

[203]With effect from 1 September 2020 the Claimant was no longer required to shield but did not return to the station. Whilst we are unclear whether the Claimant was checking emails and completing her Workbook, we are satisfied that she was ready, willing and able to continue to undertake 8 hours’ work per week for the Respondent. She never gave any indication that she wanted her hours to increase to 16 hours per week or that she would have been able to maintain attendance at work on that basis. As above, the Claimant was paid the sums properly payable to her under her contract by reference to the ongoing adjusted working arrangements in place.

[204]With effect from 8 October 2020 the Claimant self-certified and from 15 October 2020 she was certified as unfit by her GP. Any claim that unauthorised deductions were made from the Claimant’s wages after 8 October 2020 fails for the same reasons set out in paragraph 201 above; the Claimant had exhausted her contractual right to paid sick leave and the Respondent was declining to exercise discretion to extend her sick pay. Time Limits

[205]The primary time limit under s.123(1)(a) EqA within which proceedings must be brought (or at least notified to Acas under the Early Conciliation Scheme) is three months starting with the date of the act to which the complaint relates (or the end of the period where there has been conduct extending over a period), though the Tribunal retains the discretion to allow a claim to be brought within such other period that it thinks just and equitable.

[206]Claims A – G and J were raised in the first claim, and Claims H and I were raised in the second claim. Subject to there being any conduct continuing over a period, any acts complained of in the first claim which occurred before 19 August 2019 and any acts complained of in the second claim which occurred before 8 October 2020 are out of time.

[207]Claims A – G and J have all been brought within the primary time limit for bringing the claims. As regards Claim A, in the absence of evidence that the Respondent actively decided against making the adjustments in question, pursuant s.123(4)(b) EqA, time runs from 30 September 2019, being the expiry of the period within which the Respondent might reasonably have been expected to have implemented the adjustments. All the other matters complained of in Claims A – G and J occurred after 19 August 2019. Claims H and I have been brought outside the primary time limit for bringing the claims. In the case of Claim H, namely Ms Bromley’s comment to the Claimant on 15 September 2020, the claim was brought 23 days out of time. As regards Claim I, it is unclear precisely when the Respondent decided that Mr Roberts would no longer manage the Claimant’s ongoing absence and planned return to the workplace. According to the Agreed Chronology, Mr Roberts returned to his LOM role some time in July 2020. By the time of the 14 July 2020 Compassionate Conversation, Ms Bromley was in post as AGM, though it was not until 15 September 2020 that the Claimant was informed that Mr Roberts would not manage her ongoing absence from the workplace and planned return. As with Claim H, Claim I is at least 23 days out of time.

[208]The Claimant was advised throughout by her Trade Union. We did not hear evidence as to when the Claimant first sought legal advice. The fact that she had done twelve protected acts by 8 October 2020, when she contacted Acas for Early Conciliation, and the content of those protected acts, evidences a very good understanding by her of her rights and the Respondent’s obligations under the Equality Act 2010. However, the Claimant has a long history of depression and anxiety, a more recent history of cancer and, even more recently she has been diagnosed with diabetes and hypertension. Her Disability Impact Statement provides an eloquent description of these co-morbidities and how they impact her normal day to day activities.

[209]In deciding whether it would be just and equitable to extend time to permit Claims H and I to be pursued out of time, we bear in mind that the primary time limit is not something to be casually disregarded by a party or the Tribunal. However, there are also public policy considerations to weigh in the balance, namely society’s interest in protecting the rights of those who may be particularly vulnerable and deserving of protection by reason of debilitating health conditions. The Claimant has raised three grievances in respect of her alleged treatment. As we have noted in our findings above, she has yet to receive an outcome to those grievances. Pending an outcome she did not know what explanation might be provided by the Respondent in respect of her various concerns, specifically in relation to the complaints the Tribunal has upheld, and whether therefore the Respondent was willing to offer any acknowledgement or apology or redress in respect of them. There is no obvious prejudice to the Respondent in extending time, other than the inevitable prejudice of now being liable to provide a remedy to the Claimant in respect of its discriminatory treatment of her. To deny the Claimant an effective remedy beyond the findings and conclusion in this Judgment would represent a significant injustice to the Claimant and would produce the result that the Respondent would potentially benefit from its own incompetence or mismanagement in failing to determine and address her grievances. The delay has not had any impact upon the evidence in this case, or the Tribunal’s ability to conduct a fair Hearing (DPP v Marshal

[1998] IRLR 494

). There is no presumption in favour of extending time; however, the Claimant has persuaded us that as an exception to the rule it would be just and equitable to extend time in her case.

[210]This case will be listed for a remedy hearing. Notice of that hearing together with any case management orders will be notified to the parties separately.

Findings of Fact

[1]Unless otherwise indicated, any page references in these Reasons correspond to the remedy hearing bundle (the “Bundle”). We were also provided with two supplementary hearing bundles running to 34 and 88 numbered pages respectively (“Bundle 1” and “Bundle 2”).

[2]The Tribunal’s judgment on liability (the “Liability Judgment”) was finalised on 19 April 2022, following a seven day liability hearing and two days of discussions in chambers. The remedy hearing was initially listed on 17 June 2022 though was ineffective as the Tribunal’s case management orders were not complied with. Employment Judge Maxwell sought to get the matter back on track by making various case management orders, including provision for a report from a jointly instructed medical expert. The remedy hearing was extended from one to two days and re-listed on 13 and 14 March 2023 to accommodate Counsel. However, the hearing was subsequently postponed as the parties had been unable to instruct an expert. It was re-listed on 25 and 26 January 2024, again to accommodate Counsel. Sadly, in September 2023, Mrs Carvell, one of the two members who had sat on the case in 2022, died. Ms Johnson was nominated by the Regional Employment Judge to take Mrs Carvell’s place, so that the Tribunal would be appropriately constituted to deal with the issue of remedy. However, once again, the rescheduled hearing could not go ahead. Mr Brown, who had represented the Claimant on the issue of liability, had seemingly withdrawn from acting for the Claimant shortly before the hearing in circumstances which have not been fully explained to the Tribunal and which may yet be the subject of a costs, or even a wasted costs, application by the Respondent. Ms White, who represented the Claimant on 25 January 2023 had accepted a brief on the basis that she would seek a postponement on behalf of the Claimant, but otherwise would not be in a position to represent the Claimant on the issue of remedy should the application not be granted. Given the exceptional circumstances, we granted another postponement and made further case management orders, including for the parties to co-operate with a view to agreeing a Remedy List of Issues.

[3]The remedy hearing finally went ahead on 11 and 12 September 2024, albeit a significant part of the first day was lost, as the Claimant was anxious and distressed ahead of giving evidence, and for a time it seemed that the hearing might not go ahead. We are grateful to Counsel for how they responded to the situation and for their assistance in creating an environment in which the Claimant eventually felt able to give her evidence, even if with difficulty. The Claimant was initially encouraged to sit in the Tribunal hearing room with Mr Downey, without anyone else present. Employment Judge Tynan, Mr Hignett and Ms Smeaton then joined them, and in due course the members were also able to come into the room without the Claimant feeling overawed. A screen was deployed to shield the Claimant from those observing the hearing and there were increased breaks, as well as the ability for the Claimant to leave the hearing room at any time if her feelings of anxiety were threatening to overwhelm her. We acknowledge, in particular, the Respondent’s sensitive and pragmatic approach to cross examination, consistent with its approach at the liability hearing when it had not explored the issues to the level of detail that it might otherwise have done with a more resilient claimant. We are certain that this supported the Claimant’s continued participation and her ability to give the best evidence she could in difficult circumstances. As we shall come back to, the Claimant is very unwell.

[4]It has been agreed that we should provide a narrative judgment in respect of the issues identified in the Remedy List of Issues. The intention is that the parties will use our findings, if possible, to support an agreed resolution or, failing that, to enable the outstanding remedy issues to be narrowed. We have found it convenient to deal with Issues 1.2 and 1.3 and Issues 2 and 4 together.

[5]We apologise to the parties for the slight delay in coming to this judgment. The first available dates we could meet in chambers to discuss the case and come to a judgment on the remedy issues was just over two months after the remedy hearing and, even then, it became necessary for us to find a third day to finalise our discussions. One of the panel unfortunately also had a family bereavement. We have kept the parties updated about these matters.

[6]We are grateful to Counsel for their respective written and oral submissions, which we have taken full note of and indeed gone back to in the course of coming to this judgment.

[7]The Liability Judgment noted Leggatt J’s increasingly often cited observations in Gestmin SGSP S.A. v Credit Suisse (UK) Limited and Anr [2013] EWHC3560 (comm), regarding the potential distorting effects of litigation on the reliability of oral evidence and the importance of contemporaneous documents when making findings of fact. Gestmin was cited by Johnson J in his comprehensive judgment in TVZ v Manchester City FC

[2022] EWHC 7

(QB), a case we referred Counsel to in the course of the remedy hearing. Having addressed the question of whether the abuse alleged by the claimants in TVZ had occurred, at paragraph 190 of his judgment, Johnson J went on to consider the consequences of the abuse. He noted that there was considerable scope for reattribution and confirmation bias: “The abuse was a hugely significant event in the lives of each claimant. It would be surprising if they did not naturally attribute subsequent life events to the abuse. But, whether or not there is a history of abuse, some relationships do break up, some people do use illicit drugs and misuse alcohol, and some people do not manage to hold down long-term employment. It is therefore necessary to treat oral recollections of events, and the more so oral evidence as to the cause of events, with considerable caution.” (our emphasis)

[8]Whilst we can understand why the Claimant might attribute the cause of her present difficulties to the events in respect of which the Respondent has been held liable, rather than to other events in the course of the working relationship to which no liability attaches or indeed to events, circumstances and underlying health issues entirely unrelated to her work, as Johnson J did in TVZ, we approach her evidence as to the cause of her difficulties with at least a degree of caution. We certainly do not discount her evidence in the matter, but we have looked in particular to the contemporaneous evidence to assist us in coming to a rounded and objective view as to how the Claimant has been affected by the discrimination she experienced.

[9]The Claimant’s position as set out in her remedy witness statement, reflects what she said to the medical expert, Dr Hallstrom when they met on 9 August 2023 and subsequently reiterated to him in correspondence. She says, “54. The effect of the discrimination has reached into every part of my life, damaged my health and damaged my family relationships. The impact is too great for either my husband or myself to deal with. We are too fragile, and have been running on parallel lines for the last three years simply unable to cope with the other one’s emotions and challenges. I’ve struggled to support my children … during their teenage years and they are both now in their twenties and becoming independent. What has happened to me at work has taken every bit of strength I had left from fighting cancer and I had nothing left. I feel I have let them down when they needed me. … [M]y husband buried himself in work as he was already struggling with the grief of losing his brother, and myself and his mum going through cancer treatment and I could not give him emotional support. He couldn’t watch what I was going through at work because it was too painful, so we could only emotionally distance from each other as we couldn’t deal with each other’s pain. All of that was at the time when I most needed what was really the smallest amount of help and support from my employer of 32 years, but instead I got the opposite.55. My confidence is completely gone, I cannot ‘add’ anything into my life, cannot form new friendships and find it much harder to deal with anything that does come along, things which I would previously have found difficult but could have coped with I now could not deal with and it is fortunate that most of the stressors in my life have gone or been reduced. I now live my life in the bottom left box on the chart.

56. The impact on my health, my life, and the lives of the people close to me as well as my relationships with them are things I cannot see any of us fully recovering from.” In paragraph 15 of his outline closing written submissions, Mr Downey submits that there is no rational basis for concluding that the Claimant’s inability to return to work can be attributed to non-discriminatory causes. For the reasons set out below, we disagree. There is a significant weight of evidence to support the contrary conclusion. Law

[10]Under section 124(2)(b) of the Equality Act 2010, where a tribunal finds that there has been a contravention of a relevant provision, it may order the respondent to pay compensation to the claimant. The compensation which may be ordered corresponds to the damages that could be ordered by a county court in England and Wales for a claim in tort (section 124(6) and section 119(2)). There is no upper limit on the amount of compensation that can be awarded.

[11]The aim of compensation is that ‘as best as money can do it, the [claimant] must be put into the position [she] would have been in but for the unlawful conduct’ (Ministry of Defence v Cannock and ors

1994 ICR 918

, EAT). In other words, the aim is that the Claimant should be put in the position she would have been in if the discrimination had not occurred.

[12]To decide what position a claimant would have been in if the discrimination had not occurred, the tribunal has to look at what loss or injury has been caused by the discrimination. In cases where loss or injury has more than one cause, this needs very careful consideration. In Olayemi v Athena Medical Centre

[2016] ICR 1074

, the claimant had a psychiatric injury which the tribunal found was caused in part by the respondent’s discrimination and in part by another factor. HHJ Richardson explained the principles which apply in cases where the claimant has a pre-existing vulnerability or where the discrimination is one of two or more causes of an injury: “19. Although there is a degree of tension between these cases, the essential principles are not in doubt. The claimant must prove that the respondent’s wrongdoing was a material cause of her psychiatric condition. If she does so the respondent must take her as he finds her; it is no defence for him to say that she would not have suffered as she did but for a susceptibility or vulnerability to that kind of psychiatric condition. The employment tribunal will award compensation for the psychiatric condition, although it may discount the compensation to take account of any risk that she may in any event have suffered from the psychiatric condition to which she was vulnerable. That will depend on the chance that she would have suffered some other cause—presumably harassment or similar—to trigger her condition, and also on the seriousness of that cause.

[20]It is open to the respondent to show that there was another material cause for the claimant’s psychiatric condition—that is a cause going beyond mere vulnerability or susceptibility. Even so it is not a defence for the respondent to say that there was another material cause for her psychiatric condition unless the resultant harm is truly divisible. If, however, the resultant harm is truly divisible the tribunal concerned must estimate and award compensation for that part of the harm for which the respondent is responsible. In so doing it will apply the tortious measure of damage: it will identify the harm for which the respondent is responsible and award compensation for that harm, as opposed to the harm which would have occurred in any event. These propositions—including the propositions concerning divisibility—are not unique to claims arising out of a psychiatric condition.

[21]As this analysis shows, the employment tribunal should always take account of any existing vulnerability or any divisible cause when it awards compensation. In the former case it will make allowance for the chance that the claimant would at some point have suffered the psychiatric condition in any event. In the latter case it will not award compensation for any harm which would have occurred in any event by reason of the other cause. How the employment tribunal takes account of such a factor will depend on the case.

[22]There is no rule in such cases that the employment tribunal should make a blanket percentage reduction in the award. In some circumstances—such as those which obtained in Thaine v London School of Economics

[2010] ICR 1422

—it may be appropriate. In that case the claimant suffered from illness due to several causes operating in the same or a similar time frame, and a reduction of 60% was appropriate. But in other cases it may be quite inappropriate. The employment tribunal must always consider what a claimant has lost by reason of the wrongdoing of the respondent in the light of the specific facts of the case.” 13. On the question of divisibility, the judge added: “24. It is, therefore, clear in principle that when there are competing causes for an injury a court or tribunal must consider the question of divisibility: both whether the injury is divisible and how it may be divided between the causes. The two questions go together and are essential elements of the reasoning.

[25]The passage which I have quoted from Dingle [v Associated Newspapers Ltd

[1961] QB 162

] also seems to me to indicate a common sense approach to divisibility. It is more likely that an injury will be held to be indivisible if the competing causes are closely related to the injury and it is difficult to separate out their consequences.”14. As we set out below, at the point at which she was first discriminated against on 26 September 2019, the Claimant did not just have a preexisting vulnerability, she was in a particularly poor state of mental and physical health; she had a long standing mood disorder, characterised by anxiety and recurrent major episodes of depression, and a number of serious physical health issues.

15. Royal Bank of Scotland plc v Morris UKEAT_0436_10, Dunham v Ashford Windows

[2005] IRLR 608

and Herry v Dudley Metropolitan Council and another

[2017] ICR 610

highlight the potential importance of expert medical evidence in disability discrimination cases. In Morris, Underhill J, then President of the EAT said: [55] The burden of proving disability lies on the Claimant. There is no rule of law that that burden can only be discharged by adducing firsthand expert evidence, but difficult questions frequently arise in relation to mental impairment, and in Morgan v Staffordshire University

[2002] IRLR 190

[2002] ICR 475

this tribunal, Lindsay P presiding, observed that “the existence or not of a mental impairment is very much a matter for qualified and informed medical opinion” (see para 20(5), at p 485A-B); and it was held in that case that reference to the Applicant's GP notes was insufficient to establish that she was suffering from a disabling depression (see in particular paras 18-20, at pp 482-4) …”

16. Whilst these cases were concerned with the question of whether each claimant was disabled, rather than with issues of causation, in our judgement causation is equally an issue that benefits from qualified and informed medical opinion. A claimant’s ability to pursue compensation for psychiatric injury caused by discrimination was confirmed in Sheriff v Klyne Tugs (Lowestoft) Ltd

1999 ICR 1170

, CA. In the course of his judgement, Lord Justice Stuart-Smith said: “21. … The question, which may be a difficult one, is one of causation. It follows that care needs to be taken in any complaint to an Employment Tribunal under this head where the claim includes, or might include, injury to health as well as injured feelings. A complainant and his advisers may well wish in those circumstances to heed the advice of the editors of Harvey, just referred to, to obtain a medical report.” Lord Justice Stuart-Smith’s comments regarding the advisability of a medical report tend to reinforce Johnson J’s observations in TVZ regarding the need to treat oral evidence as to the cause of events with caution (or at least, in our judgement, with a degree of caution). Primary Findings

17. In order to explain why we have come to the conclusions that we have in relation to remedy, we must necessarily refer to sensitive matters from the Claimant’s personal and medical history. Given that her husband and children are not parties to the proceedings, we have endeavoured to respect their privacy by not referring to them by name.

18. The Claimant’s history of ill health is referred to briefly in paragraphs 16 – 19 of the Liability Judgment. Inevitably, at the remedy stage, there has been much greater focus upon the Claimant’s history, particularly in the context of a claim that, inclusive of grossing up but excluding pension loss, is valued at £1,029,450.12 (pages 135 – 137). The Claimant seeks career long loss of earnings, £56,200 for injury to feelings and £115,730 by way of general psychiatric damage.

19. The Bundle includes extensive medical evidence in relation to the Claimant, including just over 1,200 pages from her medical records and numerous occupational health reports. The parties jointly instructed Dr Cosmo Hallstrom, a General Adult Psychiatrist, to prepare a report on the Claimant. Dr Hallstrom was previously a Consultant Psychiatrist at Charing Cross Hospital, a Senior Lecturer at Imperial College Medical School and an Examiner at the Royal College of Psychiatrists. In addition to his substantive report (pages 234 to 271 of the Bundle), Dr Hallstrom has also addressed various questions put to him on behalf of the Claimant, and for which provision was made by Employment Judge Maxwell in his Order of 17 June 2022.

20. Whilst no provision was made for either party to adduce additional medical evidence, the Respondent seemingly does not object to the inclusion in the Bundle of a letter dated 18 October 2023 from Dr Shravat, a Chartered Psychologist at Maggie’s Centre in Cambridge. Dr Shravat’s earlier letter of 2 September 2019, referred to in the Liability Judgment, significantly informed the Tribunal’s decision that the Respondent discriminated against the Claimant in terms of how it managed her ongoing absence and potential return to work between September 2019 and February 2020.

21. Dr Hallstrom’s credentials are set out on the first page of his substantive report dated 14 September 2023. Impressive though his credentials may be and experienced as he undoubtedly is, we do not approach his reports uncritically. In particular, and as we shall come back to, we consider that he was not clearly directed as to the correct approach to questions of ‘chance’. Be that as it may, we are satisfied that his reports are essentially well informed pieces of work from a highly experienced psychiatrist to which we should have regard. In particular, notwithstanding the Claimant’s sometimes generalised criticisms, Dr Hallstrom’s substantive report shines a light on the myriad complex issues that have shaped the Claimant’s life and, in our judgement, explain her current situation and difficulties. The report includes a comprehensive chronology derived from the Claimant’s extensive medical records, that we have been able to verify for ourselves from the medical records in the Bundle. The records corroborate the background section of Dr Hallstrom’s substantive report and contribute to our overall assessment that, allowing for one or two minor errors of detail which do not undermine his conclusions, he had a clear and detailed grasp of the Claimant’s complex medical and family history, of the workplace issues that affected her and of her health situation when he met with her in August 2023 and subsequently prepared his reports.

22. Amongst the Claimant’s medical records, are a number of reports written by Dr Cathy Walsh, a Consultant Psychiatrist at Cambridge and Peterborough NHS Foundation Trust. Her first report of 17 June 2019 provides a detailed overview of the Claimant’s history and situation just a couple of months before the Claimant was first discriminated against and it has informed our conclusions as to whether the Respondent caused the Claimant a personal injury, as well as what would or might have happened had the Claimant not been discriminated against.

23. The Claimant has been dealt a particularly difficult hand in life. Her mother had Munchausen syndrome by proxy and is thought to have induced symptoms of epilepsy in the Claimant as a child. Thankfully, any issues in that regard may not have continued beyond the Claimant’s infancy. At the age of eight, the Claimant was fostered for approximately six months when her mother was not coping. Whilst the Claimant’s childhood otherwise seems to have settled down (albeit she told Dr Walsh she never really fitted in), when she was twenty-one years of age she was diagnosed as having a major depressive episode. Dr Hallstrom describes this as the beginning of a long mood disorder. Amongst other things, the Claimant experienced postnatal depression following the births of her children in 1998 and 2003. Her son is neurodiverse and her daughter was noted by Dr Walsh in 2019 to have been diagnosed as having a personality disorder, periods of mental health care and a tendency to self-harm. We include these details only because they indicate the significant difficulties and pressures in the Claimant’s personal and family life that she has had to navigate over many years and which, we find, have affected her resilience and been a significant factor in her ongoing mental health issues. We include them also because the Claimant now seeks to discount or minimise their significance and effectively consign them to the past. Even if the Claimant’s son is now working to go to University and her daughter has achieved some level of independence, that does not mean that past events and challenges can be discounted in an understanding of the Claimant’s current mental health.

24. Whilst it seems from the records and other evidence available to us that there were no documented major depressive episodes for a period of seven years or so following the postnatal depression that followed the birth of the Claimant’s son in 2003, nevertheless the Claimant evidently experienced significant stress and / or anxiety symptoms during that time. For example, in 2007 she had twenty-two sessions of psychotherapy and apparently described feelings of often being overwhelmed. In 2013 the Claimant had a major depressive episode, and further recurrent episodes followed in 2016, 2017 and 2018. The Liability Judgment noted that from 2016 the Claimant was experiencing recurrent depressive episodes on an increasingly regular basis. That evidences to us that the Claimant had become less resilient and more prone to mental ill health. This was, of course, before she was diagnosed with breast cancer. 25. Even had she not been diagnosed with cancer, the Claimant’s increased susceptibility to stress, anxiety and depression in the period 2013 to 2018 points to the very real possibility, indeed probability, that her career would be shortened by reason of ill health. By April 2018 the Claimant had moderate to severe obstructed sleep apnoea. We note, that on 29 May 2018 the Claimant scored 20 out of 27 using the PHQ-9 diagnostic assessment, signifying severe depression. Her PHQ-9 score in early 2016 was 19. When she met with Dr Hallstrom on 9 August 2023 she scored 18, indicating moderately severe depression. Whilst her anxiety level was markedly higher in August 2023 than it had been in May 2018, the PHQ-9 scores do not of themselves support the Claimant’s evidence that she is now, “much worse than [she] has ever been”. Whilst we agree with Dr Hallstrom that the Claimant is extremely unwell and that her mental health is having a very major impact on her lifestyle and functioning, in our judgement this describes her state of mental health over a period of several years, certainly since she was diagnosed with cancer in 2018 but also during significant periods of her life since she was first diagnosed as having a major depressive episode when she was twenty-one. What is very clear is that over the last six years or so, there has additionally been a pronounced decline in the Claimant’s physical health and wellbeing.

[26]When the Claimant saw Dr Walsh in 2019, she had not then been diagnosed with diabetes and, as we say, she had not been discriminated against. In her report following their meeting on 17 June 2019, Dr Walsh noted that the Claimant’s bother-in-law had been diagnosed with bowel cancer the previous year and had died just six months later, a few months before the Claimant had received her own diagnosis. Her mother-in-law was diagnosed with rectal cancer in the same year; a diagnosis of vascular dementia followed within a relatively short time thereafter. It seems that the Claimant had the burden of caring for her mother-in-law over the next year or more before she moved into nursing care. Dr Walsh wrote, “In the context of all these challenges, she has become increasingly depressed over the past year. Her mood is low most of the time. She is anxious and has experienced occasional panic attacks. She is frequently tearful and often irritable. Her sleep is poor with initial insomnia. She has sleep apnoea (diagnosed approx. 18 months ago) and uses a CPAP machine but said that she slept well with this prior to the onset of her depression. Her appetite is reasonable but her energy, interests, motivation and concentration are all poor. She denied suicidal ideation but said that she just wants some respite. She said that she welcomed the anaesthetic for recent surgery because ‘my brain switched off for a couple of hours’. She has been on Citalopram 20mgs for several months (having previously been on Paroxetine) with little benefit. She has been seeing a psychologist via the cancer charity ‘Maggie’s’ for over a year which she finds supportive.” “Never feels fully out of depression. Usually 6 – 8 months duration. Longest period symptom free was 2 years. No history of self-harm.” “Both sisters suffer from anxiety. Son has Asperger’s and daughter mental health problems (as above). Maternal uncle and cousin have autistic spectrum disorders.” (page 625) On the Claimant’s account in June 2019 therefore, the longest period in her adult life that she had been symptom free in terms of depression, was two years, and even then she told Dr Walsh she never felt fully out of depression.

[27]Dr Walsh’s Report concluded as follows, “Impression 49 year woman with a past history of depression who has been undergoing treatment for breast cancer for the past 11 months. While treatment has gone well, remains upset by some elements of her care where she feels she was not given enough (or conflicting) information. Apart from cancer, multiple recent life events as well as more long term stresses as documented above. Little respite and husband also coping with bereavement, illness in his mother etc. In this context she had been depressed for almost a year. Unrelenting nature of life’s stresses likely to be a maintaining factor. Limited benefit from current antidepressant regime. Finds sessions with Maggie’s psychologist helpful.” (page 626)

[28]In summary, Dr Walsh was describing somebody who, in our judgement, would not continue working through to normal retirement age. We return below to the question of when she would or might have stopped working but for how she was treated by the Respondent and the chance of this happening.

[29]In or around 2013, the Claimant’s hours of work reduced from 24 to 16 hours per week. Dr Hallstrom notes that this was in order for her to spend more time supporting her son. The Claimant’s hours remained unchanged at the point at which she went on sick leave following her cancer diagnosis in 2018. She remained largely absent from work over the following five or more years until she left the Respondent’s employment by reason of ill health early retirement, we believe, with effect from 31 January 2024.

[30]Bundle 2 contains a copy of the Claimant’s completed ill health early retirement application form dated 17 December 2021. It took two years for the application to be determined. When Mr Hignett asked the Claimant about the application, he highlighted that the Claimant had only referred to her cancer in support of the application. In a section headed, ‘Any other information you think is relevant to your application’, the Claimant had written, “How does it affect me? I have limited mobility and extreme fatigue which seriously affects my day-to-day life and mental health. I am no longer able to complete tasks that I once was able to do. … Mentally and emotionally, I have been seriously affected by my condition and have become anxious and stressed because of my diagnosis and its effects on me physically. … Having worked in a clinical role I know the seriousness of my own condition and have accepted that I will no longer be able to continue doing my frontline role or any other role. The deterioration in my health means that I will not regain my health to the same degree that I once enjoyed and be able to do the job I loved.” (page 17 of Bundle 2)

[31]The Claimant’s explanation at Tribunal for having focused her application upon her cancer can be summarised on the basis that she had sought to put her best foot forward, emphasising the ongoing impacts of her cancer rather than seeking to explain its impacts in the context of any comorbidities, her personal and family issues, or the unresolved workplace dispute and ongoing Tribunal proceedings. We can understand why a person might be tempted, indeed feel they had no option but to put forward a partial account of their health and other relevant circumstances if they believed this might provide a ready way out of a stressful and otherwise seemingly intractable workplace situation. The fact that the Claimant was, seemingly by her own admission, not entirely straightforward with the NHS Pension Scheme Administrators, does not necessarily undermine her credibility in these proceedings, even if it has inevitably made our task more difficult in an already complex case. However, without appreciating it and even allowing for the possibility that she was putting her best foot forward, the Claimant has potentially addressed or even answered the Polkey/Chagger conundrum of what would or might have happened had the Respondent not discriminated against her: when she submitted her ill health early retirement application in December 2021, whatever her reasons for seeking early retirement, the Claimant seemingly believed that the ongoing effects of her cancer and its treatment were sufficient to qualify her as permanently incapacitated for all forms of work, even if her other health conditions might additionally have supported that conclusion and provided a more rounded view of her situation.

[32]The decision on the ill health early retirement application is contained in a letter from Medigold Health dated 1 December 2023 (pages 1590 to 1592). The letter also touches upon the fundamental question of whether the Claimant would have continued in the Respondent’s employment in the long term had she not been discriminated against. Notwithstanding the Claimant focused on her cancer, the Pension Scheme’s Medical Adviser, Dr Shackleton took a more holistic view. The letter confirms that Dr Shackleton was provided with 630 pages of medical records, clinic letters, test results and correspondence as well as reports from an occupational physician, Dr Reed and a consultant endocrinologist, Dr Khan. As the latter report would have focused on the Claimant’s diabetes, it reinforces that Dr Shackleton did not limit himself to the issue of the Claimant’s cancer. Whilst Dr Reed and Dr Khan’s reports were not available to the Tribunal, it is immaterial in terms of our understanding since the reports were available to Dr Shackleton. We think it helpful to set out in full Dr Shackleton’s rationale for concluding that the Claimant met the ‘Tier 2’ test of permanent incapacity, namely that there was a physical or mental infirmity which gave rise to permanent incapacity for regular employment of like duration, in addition to the Tier 1 test of permanent incapacity for the efficient discharge of the duties of NHS employment: “Having considered the application and evidence there is, in my opinion, reasonable medical evidence that the applicant has a physical or mental infirmity as a result of which the applicant is currently incapable of efficiently discharging the duties of their NHS employment and also currently incapable of regular employment of like duration. The key issue in relation to the application is whether the applicant’s current incapacity is likely to be permanent. In summary details of the member’s sickness absence show absence from 13/04/23 onwards with nature of illness not stated. However long spells of absence are recorded from 2018 onwards (nature of illness not stated). Dr Reed indicated that the reason for current incapacity is recurrent depressive disorder with a past history of breast cancer and ongoing treatment, diabetes, obstructive sleep apnoea and obesity. Social factors are also exacerbating factors for the depressive illness. Mrs Rayner has suffered from depressive illness over a great many years and has engaged with various treatment programmes, including under the care of a consultant psychiatrist. Given the duration of Mrs Rayner’s symptoms, there are no grounds for believing that they are likely spontaneously to improve. In my opinion, in the absence of further treatment, the incapacity for NHS employment and employment of like duration is likely to be permanent. Mrs Rayner has engaged with all recognised treatments for her depressive illness over a number of years and treatment is ongoing. Despite this her incapacity has persisted. Multiple co-morbidities and social factors are likely exacerbating her mental health problems and reducing the likelihood of recovery. On the balance of probability the incapacity is unlikely to be altered by treatment before normal benefit age.” (page 1591)

[33]Dr Shackleton clearly understood the Claimant to be incapacitated by reason of a number of health conditions. As regards his reference to ‘social factors’ exacerbating her depressive illness, the Claimant’s personal and family issues feature extensively in the medical records that were available to him. Particularly given that he was assessing the Claimant’s capacity or otherwise to work, if Dr Shackleton believed that work related factors, including discrimination, were a contributory factor, then in our judgement he would have said so explicitly, particularly as he would have needed to have addressed his mind to the related question of whether, in the event they could be addressed, the Claimant might not then meet the ‘Tier 1’ or ‘Tier 2’ tests of incapacity. We conclude that the reason he did not do so was because he was satisfied on the extensive evidence available to him that the Claimant was then incapable of working altogether for reasons unrelated to her work. Even if the Claimant might seek to infer that Dr Shackleton must have had some regard to her workplace issues (which is not indicated by his comments), he was explicit that the duration of the Claimant’s symptoms of depression meant there were no grounds for believing they were likely to spontaneously improve. He noted in this regard that she had engaged with all recognised treatments over a number of years, essentially to no avail.

[34]The Claimant asserts that the Respondent’s treatment of her has been life changing for her. However, Dr Shackleton’s observations in 2023 are consistent with Dr Walsh’s assessment some four and a half years earlier in 2019, before any of the events with which this Tribunal is concerned. They are also consistent with how Dr Hallstrom sees matters. In our judgement, the Claimant has wrongly attributed her ongoing profound difficulties in life to the Respondent’s treatment of her rather than acknowledge that she has longstanding, deep-rooted, complex medical and personal issues for which the Respondent is not responsible.. The Remedy Issues

[35]Olayemi provides a useful reminder of the order in which the remedy issues in a case such as this should be approached. We refer in particular to paragraph 19 of the judgment, cited above, from which it is clear that we should first determine whether the Respondent’s treatment of the Claimant was the cause of her psychiatric condition, or some part of it. If it was, only then should we ask ourselves whether the Claimant would at some point have suffered the psychiatric condition, or the relevant part of it, in any event. Did the Respondent cause the Claimant a personal injury by reason that it discriminated against her?

[36]The question for the Tribunal is whether the discrimination was a material cause of the Claimant’s psychiatric condition or some part of it, alternatively whether it materially exacerbated any existing psychiatric condition (or part thereof).

[37]The Claimant is indisputably extremely unwell. She was extremely unwell in June 2019, just two to three months prior to the first act of discrimination. She has long-standing significant mental health issues. The Claimant’s mental health was in such a poor state in June 2019 that she told Dr Walsh she welcomed the respite that general anaesthesia provided over a couple of hours. In our judgement there is little to distinguish Dr Walsh and Dr Hallstrom’s reports in terms of their descriptions of the Claimant’s psychiatric condition in 2019 and 2023. We do not, of course, overlook in this regard that in 2019 the Claimant was looking to return to work, but we agree with Dr Hallstrom when he expresses his doubt as to whether she in fact then had the capacity to return to steady, long term work commitments, even with reduced hours. We return to this below.

[38]In the context that the Claimant had by 2019 developed diabetes, Dr Hallstrom expresses the view that the discrimination had no material impact on the Claimant at the beginning of 2020 or at the point at which she tentatively returned to work in March 2020 (paragraphs 226 and 227 of his report – page 267). We understand Dr Hallstrom to be referring in this regard to the impact upon her psychiatric health. Dr Hallstrom says that after March 2020 to date, the discrimination has had only a “trivial” impact on her ability to work steadily. By which we understand him to be saying, as in paragraph 226 of his report, that there has been no material impact in terms of her psychiatric health. He expresses himself using the same language in paragraph 232 of his report: “The acts of discrimination have only made a trivial impact on the exacerbation of her mental health difficulties which were almost entirely a consequence of matters unrelated to the acts of discrimination.” (page 268)

[39]Dr Hallstrom returned to this and related issues in response to the Claimant’s various follow-up questions. Question 3.1 was concerned with the Claimant’s absence from work in October 2020 with work-related stress following the two acts of discrimination identified in paragraphs 3(c) and 4(a) of the Liability Judgment. Dr Hallstrom begins by making a valid distinction between the concept of work-related stress and the Claimant’s “very substantial pre-existing anxiety disorder”, before going on to say, “The additional harassment, victimisation and failure to make reasonable adjustments added to her overall pre-existing stress disorder to a small degree over a period of about five months before March 2020. This had a very minor additional impact on worsening her condition.” (page 293) His answer strays away from the specific question he had been asked regarding the likely cause of a work-related stress absence in autumn 2020. Whilst the ‘additional’ discrimination referred to in the Claimant’s solicitors’ letter of 22 November 2023 (namely, the discrimination to which she was subject in the second half of 2020) plainly would not have been a factor in the earlier five-month period referred to by Dr Hallstrom, on turning his mind again to that earlier period he evidently believed that her stress disorder was aggravated between September/October 2019 and February/March 2020, even if he describes the impact as very minor. It is slightly difficult to reconcile these comments with what he initially said for example in paragraphs 226 and 228 of his substantive report.

[40]For completeness, we note Dr Hallstrom’s comments in paragraph 229 of his substantive report: “Her illness has had a very substantial impact upon her lifestyle over the years. This has become dramatically worse since the diagnosis of cancer, associated with the difficulties in her domestic situation and her dispute with her employer.” (page 267) These comments are in the context of a question as to the effects, if any, that any exacerbation of the Claimant’s mental illnesses may have had upon her enjoyment of life in general. They could suggest that issues in the workplace were a contributory factor in terms of the Claimant’s enjoyment of life. If so, such comments would sit a little uneasily with Dr Hallstrom’s preceding comments that the discrimination had had either no or only a trivial (i.e. immaterial) impact on her psychiatric health. However, in paragraph 229 of his substantive report, Dr Hallstrom does not distinguish between the dispute in its widest sense and the legal complaints that were upheld by the Tribunal. Ultimately, we have not been assisted by these further comments of his.

[41]Dr Hallstrom was also asked as follows: “Question 7 If there had never been a dispute arising from the particular acts found to be discrimination etc would this have changed the level of functioning motivation and enjoyment of life as I describe, if so, how?” He responded, “She was already significantly unwell in early 2019 and felt unable to work ten hours a week. She had significant personal, psychosocial and mental illness problems prior to the dispute. The dispute did have an additional impact on her functioning, motivation and enjoyment of life but only a small additional impact superimposed on the very substantial difficulties unrelated to her dispute with her employer.” (page 296)

[42]By these comments Dr Hallstrom might be said to be suggesting an impact beyond that described in response to Question 3.1, and over and above that which might ordinarily be said to involve injured feelings. However, if Dr Hallstrom believes there was a specific impact, it is not described, nor does he clarify whether his reference to there being a “small” additional impact superimposed on the “very substantial” difficulties unrelated to the Claimant’s dispute with the Respondent means that the impact was ‘trivial’ or ‘immaterial’; his comments certainly could be understood in that way. As with paragraph 229 of his substantive report, he refers to the “dispute” rather than to the complaints upheld by the Tribunal, though in fairness to him that may be because the question directed him to the dispute that arose from the acts found to be discrimination, rather than to the acts themselves. Without further clarification in relation to these various matters, we do not derive any particular assistance from his response to Question 7.

[43]Aside from Dr Hallstrom’s comments in response to Question 3.1, the only other medical evidence that points to the Claimant having potentially been injured by the Respondent is Dr Shravat’s letter of 18 October 2023 (pages 1533 and 1534). The letter was seemingly provided for this litigation as it is addressed to the Claimant’s representative, Ms Spencer. We have not been provided with any email or letter of instruction nor does Dr Shravat’s letter contain a declaration in the terms that would ordinarily be found in an expert’s report, specifically an acknowledgment of Dr Shravat’s duty to the Tribunal. Nevertheless, her observations are consistent with Dr Hallstrom’s response to Question 3.1, albeit they are a little more fully articulated. She writes: “From my recollection of the therapy and referring to notes from this period, the fact that Mrs Rayner did not feel supported to explore appropriate work environments post cancer treatment significantly exacerbated her anxiety. I sent a letter outlining some recommendations in order to assist her employer with adjusting for a phased return to work which would help her feel safe. Her symptoms of anxiety seemed to increase as a result of the anticipatory pressure she was put under as a result of her sick pay ending unless she returned to work despite not feeling safe to do so, and the recommendations from the letter not being taken into account which seemed to create a vicious cycle of anxiety. This was compounded by the trusting relationship with Mr Ivan Thomas ending whom she was liaising with in order to commence a phased return in which she felt safe and took in to account her post treatment challenges.” (page 1533)

[44]We were able to rely upon Dr Shravat at the liability stage and do so again now, particularly when we read her comments in conjunction with Dr Hallstrom’s response to Question 3.1. We find that the discrimination identified in paragraphs 1, 2(a), (b), (c) and (d), and 3(a) and (b) of the Liability Judgement exacerbated the Claimant’s anxiety disorder over the period 26 September 2019 to February/March 2020, but not beyond, and that it had no impact in terms of her existing long-term underlying significant mood disorder or any other health conditions of hers. Having regard to the sixteenth edition of the Judicial College Guidelines for the assessment of general damages in personal injury cases, in our judgement the discrimination caused at most a moderate, time-limited exacerbation of the Claimant’s pre-existing anxiety disorder. We return below to the question of whether there should be a separate award for personal injury or instead whether any harm during that period is adequately addressed by an award of compensation for injury to feelings. Issue 1.1. The Claimant accepts that there can be no award for losses allegedly incurred by her in the period February 2018 to September 2019. Issues 1.2 & 1.3 But for the discrimination, how likely is it that the Claimant would have returned to work prior to March 2020? When? On what hours? For how long? What compensation should flow from the Tribunal’s findings on discrimination at paragraphs 183(a) and (e)? But for the discrimination, how likely is it that by 4 March 2020 the Claimant would have been working more than 8 hours per week? For how long?

[45]In Leeds Teaching Hospitals NHS Trust v Foster EAT0552/10, the Employment Appeal Tribunal confirmed that there does not necessarily have to be a good prospect of an adjustment removing a disadvantage for that adjustment to be a reasonable one. The same point was essentially made in Noor v Foreign and Commonwealth Office

[2011] ICR 695

, EAT and in Griffiths v Secretary of State for Work and Pensions

[2017] ICR 160

, Ca. We were cognisant of this when we determined that the Respondent had failed to discharge its duty to make adjustments. The Respondent is a large, reasonably well resourced employer and the Claimant was a long serving employee with complex health issues seeking to return to work following treatment for cancer. The Tribunal concluded that the Respondent ought reasonably to have made the adjustments identified in the Liability Judgement because there was at least some prospect that they would have avoided the disadvantages to which the Claimant was put. We were, and remain, of the view that it is uncertain whether the adjustments would in fact have been effective in supporting the Claimant’s return to work in the longer term. Whilst we were informed in the matter by Mr Roberts’ success in getting the Claimant “through the door” in early 2020, we do not lose sight of the fact that, even allowing for the pandemic, her return on that occasion was not sustained,. For example, she did not attend work in the week commencing 16 March 2020: emails at the time suggest that the Claimant may have become anxious about the rapidly evolving public health situation (see page 668 of the liability hearing bundle). During lockdown she undertook a minimal amount of work: the Liability Judgement refers to her limited enthusiasm around online CPD courses and to the fact that she was not checking her emails very often. We have been reinforced in our view in the matter by the more detailed picture that has emerged at the remedy stage as to the Claimant’s health issues.

[46]The following question was put to Dr Hallstrom on behalf of the Claimant: “Question 6 If she had not been subjected to discrimination / failure to make reasonable adjustments etc., would my assessment of her ability to sustain regular employment be different? If so, how?” He was not asked in terms his opinion as to the chance that the Claimant might have stopped working altogether even had she not been discriminated against. In answer to the question, Dr Hallstrom expressed the view that it was, “… unlikely the Claimant would have been able to sustain more than eight to ten hours work for the foreseeable future.” He went on to say that it was, “highly unlikely she would have managed to return back to full time duties”. (page 296)

[47]In response to an earlier question as to whether, but for the discrimination there was “more or less, or the same chance” that the Claimant could have returned to work, Dr Hallstrom said, “Whether it was sustainable to continue working eight hours a week even with adjustments is questionable and in my opinion on the balance of probabilities that situation would not have endured for the long-term. Her physical and mental health was deteriorating for unrelated reasons.” (page 295)

[48]The Claimant asserts that she would have been working sixteen hours per week by 4 March 2020 had the relevant adjustments been implemented. By inference, she accepts that she would not have built up to sixteen hours per week any sooner than that. That accords with Dr Hallstrom’s views, expressed in his response to Question 5.1, namely that had the Claimant returned to work in September 2019, she would not have been able to work longer than eight hours per week. Dr Hallstrom is of the view that the Claimant would “probably not” have been able to increase her hours to sixteen hours per week. He says, “She was already in a poor state of mental and physical health prior to the onset of her dispute with the respondent and their acts of discrimination etc. Since then, her physical and mental health had deteriorated because of matters mostly unrelated to her dispute with her employer and I think it unlikely that she would have managed to increase her working hours a great deal. I cannot say whether she might have increased from eight to ten hours, but not for example back up to sixteen on balance.” (page 295)

[49]Dr Hallstrom was not invited to express his views in the matter in percentage terms. That is unfortunate. For example, in the initial joint letter of instruction he was asked what the impact of the discrimination was on the Claimant’s ability to return to work at specific points in time, rather than invited to identify a range of possibilities and set out his professional opinion as to the likelihood of them happening. Certain of the Claimant’s follow up questions were posed in such a way as to present him with an essentially binary choice. For example, he was asked, “Q5.2 If she had not been subject to discrimination … would she feel able to work more than eight hours per week?” He might instead have been asked his view as to the percentage chance of the Claimant maintaining attendance at eight hours per week over given periods of time, and of increasing her attendance to say 16 hours or even 24 hours per week within further defined periods of time.

[50]In response to Question 5.2, Dr Hallstrom wrote: I think, on the balance of probabilities, that it unlikely that she will ever be able sustain any regular employment …” In paragraph 46 above, we refer to his response to Question 6, in which he again expressed his opinion on the balance of probabilities. Matters of chance are not determined on the balance of probabilities – as the Employment Appeal Tribunal has observed more than once, assessing what would have happened is not an ‘all or nothing exercise’. In Chagger v Abbey National plc

[2009] EWCA Civ 1202

, CA, Lord Justice Elias accepted Counsel for the Respondent’s submission that the Tribunal had assumed that, if on the balance of probabilities something might happen, they should calculate compensation on the assumption that it would have happened, whereas when looking at future loss the assessment instead has to be made by focusing on the degree of chance. We cannot identify that this was explained to Dr Hallstrom. Certainty, on the balance of probabilities, is not required when dealing with the possibilities inherent in a Polkey/Chagger reduction. On the contrary, modest reductions can be made to an award of compensation to reflect, for example, the relatively low chance that a claimant would have been dismissed or otherwise left their employer’s employment for reasons unrelated to any unfairness or discrimination. In the circumstances, we approach with a degree of caution, those parts in particular of Dr Hallstrom’s follow-up report of 9 January 2024 in which he expresses his views on matters of chance “on the balance of probabilities” or “on balance” – see additionally Q1.1, Q2.5, Q3.3 and Q4. Similarly, we have had to give careful thought to what Dr Hallstrom means, or potentially what percentage chance he may have in mind, if at all, when he refers to certain eventualities being “likely”, “unlikely” or “very unlikely” – see Q4, Q5.2 and Q6.

[51]Mr Downey has fallen into the same error at paragraph 1.3 of the Remedy List of Issues, where he expresses the Claimant’s position as to the likelihood of a return to work in September 2019 and thereafter an increase in her hours of work, on the balance of probabilities.

[52]The Claimant experienced episodes of recurrent depression in 2016, 2017 and 2018. Thereafter she was absent from work for a year following her cancer diagnosis and treatment. She was diagnosed with hypertension in February 2019. Although she was only formally diagnosed as having type 2 diabetes in November 2019, pre-diabetes was noted in the Claimant’s medical records in October 2013 (page 826). She experienced significant stress throughout 2019 and into 2020 as a result of the challenges of caring for her mother-in-law. On 22 October 2019, she told her GP that her husband would not support his mother moving into a nursing home, with the result that the burden of care fell disproportionately upon her because he worked full-time (page 373). The fact she reported this to her GP and that it was noted in her medical records (with further emphasis added by the GP through the addition of the words “fed up++”) evidences to us that it represented a significant stressor in the Claimant’s life. During the same consultation, she also reported issues in relation to her children and was worried about managing her diabetes. Above all, she was still in the early stages of recovery from treatment for breast cancer. She told her GP that she felt she had not got over her history of breast cancer. That is unsurprising: over two years later, in December 2021, the Claimant said in her application for ill health early retirement, that her cancer was still causing her limited mobility, extreme fatigue and seriously affecting her day to day life and mental health.

[53]When the GP completed the notes of the 22 October 2019 consultation, they recorded that the Claimant was in a very emotional state. There is no record of work related issues being discussed on 22 October 2019 or of the Claimant suggesting that she was then fit to return to work, but that her return was not being supported. She presented at surgery on 3 January 2020 “extremely upset in floods of tears” and was tearful again on 6 February 2020 (pages 377 and 378). Although she referred to an ongoing Tribunal on 3 January 2020 and issues at work on 6 February 2020, on neither occasion were work related issues highlighted as her central concern. The focus on 6 February 2020 was her diabetes.

[54]Against the background described above, and having regard to the various issues recounted by the Claimant during the consultations on 22 October 2019 and 3 January and 6 February 2020, in our judgement there was only a sixty per cent chance that the Claimant would have maintained consistent attendance of eight hours per week over the six month period commencing 30 September 2019 identified in the Liability Judgement as being the period during which the adjustments ought reasonably to have remained in place for the Claimant.

[55]As to whether the Claimant would or might have increased her hours, we derive somewhat limited assistance from Dr Hallstrom’s reports given the way in which he has expressed himself in the matter. He refers to it being “unlikely” that she would have managed to increase her working hours a great deal. Mr Downey submits that the Claimant would have been working sixteen hours per week by 4 March 2020, albeit “on the balance of probabilities”. Even assuming that the Claimant might have maintained consistent attendance at work following her return on or around 30 September 2019 (which we believe would have been critical in terms of her chances of increasing her hours over the longer term), we conclude that there was no more than a twenty-five per cent chance of the Claimant increasing her hours to sixteen hours per week by 4 March 2020. Issue 1.4 But for the discrimination, how likely is it that the Claimant would have returned to work after her period of shielding ended on 31 August 2020? When? On what hours? For how long?

[56]Although the Liability Judgement envisaged that the Claimant ought to have been afforded six months in which to settle back into the workplace following her return to work on or around 30 September 2019, the 2020 pandemic was an unprecedented event. We are certain, acting as a reasonable and non-discriminating employer, that the Respondent would have shown some further flexibility in their management of the Claimant, had her recovery and return to work been thrown off course as a result of her need to shield during the lockdowns in 2020 and 2021, and should there have been a need for additional precautions or adjustments at the point she might otherwise have returned to work because she was still vulnerable. In other words, we conclude that the Respondent would not have taken any further action in relation to the Claimant under its Sickness Absence Management Policy had she been unable to work sixteen hours per week during the period September to December 2020.

[57]Whilst the Claimant’s mother-in-law moved into residential care at some point in 2020, many of the other stressors in her life remained. In particular, she was learning to live with diabetes throughout 2020. We refer to the extensive GP records at pages 378 to 395 of the Bundle. The Claimant told her GP on 29 February 2020 that she was very stressed about being unable to lose weight, and on 16 March 2020 that she felt she could not control her diabetes because of her mental health (though declined an offer of a referral for psychiatry). On 25 March 2020 she reported having had a foul taste in her mouth for some months that was impacting her diet. This continued to be an issue in April 2020 when she reported feeling overwhelmed by diabetes. It seems that the taste in her mouth may have been linked to her anti-depressant/anti-anxiety medication, but that as the medication in question was withdrawn she became anxious about being unable to cope with the symptoms of her anxiety and depression, concerns that were realised by June 2020. On 4 June 2020 the Claimant reported being overwhelmed about controlling her diet and during a follow up call the same day with the diabetic nurse, she expressed concern that her husband’s work was putting her at risk. The notes of both consultations indicate that the Claimant’s mental health was very poor at that time, and indeed that she hung up on the diabetic nurse. When the doctor called her the following day she cited a misunderstanding. They went on to discuss hypertension, diabetes and covid. On 1 September 2020, a member of staff at the surgery recorded a “difficult” phone conversation with the Claimant who had noticed a small splinter in her finger with some surrounding redness. Given the removal of her lymph nodes she was concerned whether she should be starting a course of antibiotics and also stated that the wanted the splinter removed. She went on to say that her GP should be informed she intended stopping all her medication. The person she spoke to at the surgery said she needed to discuss the matter with the GP. She documented in the Claimant’s medical records that the Claimant had been confrontational on the phone. We are left with the impression that the Claimant had used the threat of stopping her medication to ensure the matter was escalated to her GP. She was phoned back within an hour when it was related to her that a doctor had reviewed a picture of the splinter and advised a ‘watch and wait’ approach and that there was no immediate need for antibiotics. The Claimant became very distressed and was noted to be sobbing on the phone. She reported being worried about developing lymphoedema. It seems that the GP then agreed to prescribe antibiotics, mostly likely to assuage the Claimant’s anxiety and distress rather than because antibiotics were warranted in terms of a risk of lymphoedema. Two days later the Claimant spoke by phone with Dr Jaykka who noted, “Frustrated when cannot see doctor when needs.” There was a further call the following day during which the Claimant described having had a meltdown that week. She was advised to check her blood pressure at home when she was feeling calmer. At a follow up consultation on 1 October 2020 the Claimant reported difficulties in managing her diabetes. On 7 October 2020 she was reported by Dr Jaykka to be struggling with her mood, that she found everything overwhelming and that work had not been helpful (a relatively rare reference to her work). She had a telephone consultation with another doctor at the practice on 19 October 2020 who noted her to be a “very emotional lady”.

[58]The Claimant spoke at some length with Dr Jaykka on 28 October 2020 who noted as follows: “Struggling with everything, afraid she will get covid, worried about her illness, afraid work will put her in frontline which she cannot cope. She thinks she might have autism. Head his spinning with stuff. Has regular contact with Maggie's psychologist, but short 5min check. cannot put plans together, because afraid everything will be pulled off. Cannot manage her eating, [c]raves sugary things. Didn't cope with psychiatrist she spoke in December. Sugar levels have been between 5.5-15. Work has requested letter about her illness, she has applied for retirement due to ill health. Will do that. Also filled assessment for high functioning autism, discussed that at the moment it might be that they don't accept new referrals…” (page 393) The Claimant seemingly did not tell her GP that she was pursuing ill-health early retirement because she believed she had been discriminated against at work.

[59]The Claimant continued to present as stressed and anxious on 3 and 11 November 2020, with the focus once again on 11 November 2020 being the management of her diabetes.

[60]In summary, there was no improvement in the Claimant’s underlying health issues during 2020. Although her mother-in-law moved into residential care, the Claimant’s diabetes was not just an additional comorbidity in terms of her physical health, it was also a significant stressor in her life that significantly exacerbated her anxiety disorder. We conclude that had the Claimant not been discriminated against, there continued to be at best a sixty per cent chance that she would have maintained consistent attendance of eight hours per week during the period September 2020 to December 2020. We consider that the chances of her increasing her hours to sixteen per week during that period were unchanged from earlier in the year, namely only twenty-five per cent. Issues 1.5, 1.6 and 1.8 Can the Claimant claim for losses post-dating her decision to take ill health retirement in December 2023 or does the termination of her employment at that point break the chain of causation? If the tribunal finds the Claimant can claim losses post the date of ill health retirement, how likely is it that, absent discrimination, the Claimant would have taken ill health retirement in any event? And when? What are the chances that the Claimant would have been lawfully dismissed by reason of ill-health capability, resigned or died before her expected retirement age?

[61]We have not found it necessary to address Issue 1.5 since we are certain, had the Claimant not been discriminated against, that she would have left the Respondent’s employment by reason of ill health in any event.

[62]Had the Claimant not been discriminated against the parties would not have become involved in a protracted grievance process. Instead, the Claimant’s absences and health issues would have continued to be managed under the Respondent’s Sickness Absence Management Policy, subject to the adjustments identified in paragraph 183 of the Liability Judgment Reasons. By August 2019 matters had progressed to a second formal review meeting under the Policy. Had the Respondent made the adjustments we identified, the situation would have remained under review until March 2020. The pandemic would then have intervened and potentially set the Claimant back. As we say, we believe that the Respondent would not have progressed matters further during the latter half of 2020 given the unprecedented situation facing the country and the particular difficulties presented by the Claimant’s clinical vulnerability.

[63]We believe that the Respondent would have afforded the Claimant some further latitude at the point at which the second national lockdown ended in April 2021, particularly given that restrictions remained in place through to June or July that year. However, we necessarily have regard to our assessment that there was only a sixty per cent chance of the Claimant maintaining consistent attendance at work at eight hours per week and only a twenty-five per cent chance that she would have increased her hours to 16 hours per week. To answer the question posed by Dr Hallstrom at page 295 of the Bundle, it was not sustainable for the Claimant to continue working just eight hours per week. We conclude that there was no chance of the situation enduring for the long-term, indeed we consider that the chances of the Claimant maintaining consistent attendance at work in 2021 would have reduced as she continued to struggle to manage her diabetes and the impacts of her cancer, in the context of her ongoing significant depressive disorder. As Dr Hallstrom says, and we accept, the Claimant’s physical and mental health was deteriorating at this time for reasons unrelated to her treatment by the Respondent.

[64]Ultimately, there was a limit to how long the Respondent could be expected to support the Claimant and to wait for her to attain an acceptable level of consistent attendance. We know from Dr Hallstrom’s substantive report that by May 2021 the Claimant was catastrophising and could not tolerate any small obstacles. This was not as a result of having being discriminated against, since as we set out above, the impact of the discrimination was relatively short lived. Instead, in our judgement, this was because by 2021 the Claimant’s diabetes was having a profound, adverse impact upon her accumulated mental health issues, as well as being a significant comorbidity in terms of her cancer and other physical health issues. She had stopped attending ‘Maggie’s for therapy by 2021. According to Dr Hallstrom, the Claimant’s medical records in August 2021 identify a range of issues, unrelated to work. In October 2021 her diabetes was noted to be poorly controlled.

[65]In our judgement, assuming the Claimant would not herself by 2021 have sought ill health early retirement because of her worsening health situation, we conclude that the Respondent would have taken steps to manage the situation under its Sickness Absence Management Policy. By late summer 2021, the Claimant would have had extended absences and limited attendance at work over a period of three years. The Respondent’s Policy envisages a final review meeting taking place prior to entering a period of twelve months of continuous sickness absence (page 232 of the liability hearing bundle) and thereafter there being a capability hearing at which termination of employment may be considered. Whilst it is difficult for us to say with confidence whether the Respondent would have resumed the process that had commenced in 2019 or started the process afresh, we are certain of one thing, namely that the Claimant would have submitted an application for ill health early retirement once she believed that her continued employment with the Respondent was at risk, since it was financially advantageous for her to leave the Respondent’s employment by reason of ill health early retirement rather than be dismissed for incapacity.

[66]It was potentially open to the Respondent within these proceedings to argue that the Claimant would or might have left its employment sooner than in fact she did, for example because it might have dismissed her by reason of incapacity in 2021 or because she might have made an application for ill health early retirement sooner than 17 December 2021 had the Respondent triggered the final stages of its Sickness Absence Management Policy in spring or summer 2021. The Respondent has the burden of proof in the matter and since it has not advanced a positive case in these respects, it is not something we have seen fit to determine for ourselves. In any event, the Respondent was willing to wait for two years whilst the Claimant’s application for ill health early retirement was determined. The Respondent has not suggested that it only did so because there were legal proceedings which resulted in adverse findings and a judgment. Whatever arguments might have been advanced by the Respondent as to an earlier date by which the Claimant’s employment would or might have ended had she not been discriminated against, in our judgment her employment would certainly have ended by reason of ill health early retirement by no later than 31 January 2024 (i.e. there was a 100% chance in that regard), regardless of how she was treated by the Respondent. Issues 1.7 and 1.9 How should the Tribunal assess future loss in this case? Is it appropriate for the Tribunal to approach future loss on the basis of a career long loss as contended for by the Claimant? What amounts should be accounted for by way of mitigation?

[67]Given our conclusions in relation to Issues 1.6 and 1.8, there will be no award for future loss in this case: Issues 1.7 and 1.9 therefore fall away, save that in the case of Issue 1.9 the parties agree that the Claimant will need to account for payments of ESA by way of mitigation in respect of her losses up to 31 January 2024. Issues 2 and 4 What is the appropriate award for injury to feelings? Should there be an award for personal injury? On what basis?

[68]In Vento v Chief Constable of West Yorkshire Police (No.2)

2003 ICR 318

, CA, the Court of Appeal gave specific guidance on how Tribunals should approach the issue of quantum for injury to feelings. Since Vento, further account must be taken of the guidance provided in Simmons v Castle

2012 EWCA Civ 1039

and Da’Bell v National Society for Prevention of Cruelty to Children

2010 IRLR 19

, EAT, which required adjustments to be made to awards for injury to feelings to reflect the impact of inflation and a general increase in the level of awards for pain and suffering etc. These and other pertinent decisions are reflected in Presidential Guidance issued jointly by the Presidents of the Employment Tribunals in September 2017; the Guidance has been the subject of a number of addendums.

[69]The Claimant’s original schedule of loss, served on 9 February 2021 prior to her second claim being presented to the Tribunals, claimed injury to feelings in the sum of £30,000. In her updated schedule of loss, served after the Tribunal had reached its findings, this figure increased to £56,200. Mr Hignett and Ms Smeaton note that this is notwithstanding the Tribunal had dismissed a number of her allegations of discrimination.

[70]There are two claims covering two discrete periods. The relevant Vento bands for each claim are identified in paragraph 96 of Mr Hignett and Ms Smeaton’s Skeleton Argument. They submit that an appropriate award for injury to feelings is £13,000.

[71]It has not been a straightforward exercise to identify an appropriate award for injury to feelings. The Claimant’s remedy witness statement has been prepared on the basis that the Respondent has caused her a ‘severe’ psychiatric injury, something we have not upheld. Nor do we regard the exacerbation of her anxiety disorder between 26 September 2019 and February/March 2020 to amount to a ‘moderately severe’ psychiatric injury i.e., as described in the Judicial College Guidelines which state that “cases of work-related stress resulting in a permanent or long-standing disability preventing a return to comparable employment might come within this bracket”. This was not such a case. The Claimant’s inability to return to comparable employment is because she has a number of physical health conditions as well as a long standing psychiatric condition that pre-dates the acts of discrimination and which was not aggravated by the Respondent’s treatment of her. The symptoms she experienced over approximately five months in 2019 and 2020 were not prolonged; there is no evidence that they continued to affect the Claimant beyond February/March 2020. That indicates at most a ‘moderate’ psychiatric injury that, were a value to be placed on it by way of damages for personal injury, would in our judgment give rise to damages in the lower half of the £5,860 to £19,070 range indicated in the sixteenth edition of the Judicial College Guidelines.

[72]It is trite law that the Respondent must take its victim as it finds her. The Claimant’s perception of the discrimination and how it has affected her cannot be disregarded even if she is mistaken as to the cause of her mental health issues. She is, and was, an exceptionally fragile individual, who lacks, and in 2019/2020 lacked, the resilience to navigate even minor obstacles in life. We have regard in particular to the fact that much of the discrimination occurred at a time when the Claimant was highly vulnerable because she was in the early stages of recovery following treatment for breast cancer. She believed at the time that her voice was not being heard and that the Respondent was not concerned to hear the views of the specialist mental health professionals involved in her care. Over a number of months the Respondent failed to support her return to work to do a job that she loved. She generally perceived work to be a ‘safe’ space, somewhere that took her mind away from the considerable difficulties she faced in her personal and home/family life. We do not propose to rehearse the detailed findings at paragraphs 65 to 110 of the Liability Judgment, save to note Dr Shravat’s recommendation and two observations made by the Claimant two months apart in 2019. In her letter of 2 September 2019, Dr Shravat had advocated for: “A return to work plan that is able to take into account her need for a phased return and to find a role in which she can feel safe and build her confidence will be a significant contributory factor to helping Mrs Rayner manager her post treatment challenges. It would be beneficial for Mrs Rayner if she is not pressured to make decisions and is given space to explore appropriate working environments in which she is able to successfully manage the post treatment risks associated with her cancer treatment.”

[73]On 11 October 2019, the Claimant wrote: “My mental health is severely affected in respect of the implications of letter inviting me to the meeting, and as you are aware, my specialist has informed you that I am not in a position to make any long term decisions at present about my long term employment”.

[74]Subsequently, on 13 December 2019 she wrote: “I have said to Ivan this needs to go right back to basics. I have been knocked back to post treatment anxieties and depression. Getting through the door, without any pressure, is the first step, and after talking it through with Annesh on Weds, it makes sense to make this, and only this, the focus starting in January. This is the limit that I can cope with ATM.

[75]On the unusual facts in this case, in particular having regard to the Claimant’s exceptional vulnerability as well as the exacerbation of her anxiety disorder over a period of approximately five months, which we cannot separate from the exacerbation over the same period that would have been caused by the myriad other factors in her life, we consider that the award for injury to feelings should sit in the upper Vento band. It is certainly not a case that sits at the very top of the upper band as the Claimant now contends. Whilst there is no evidence that the matters in paragraphs 3(c) and 4(a) of the Liability Judgment caused the Claimant a personal injury, Ms Bromley’s comment on 15 September 2020 was offensive and unwarranted. Additionally, there is some evidence that the Claimant became stressed and agitated when she learned on 15 September 2020 that her return to work was to be managed by Ms Bromley rather than Mr Roberts, a situation that remained unresolved for several weeks until 9 November 2020 when Mr Matthias confirmed that during a discussion with Mr Squibb it had been decided that Mr Roberts would instead be asked to manage the Claimant’s sickness absence.

[76]In our judgement, a fair, just and proportionate award for injury to feelings, inclusive of any sum that might be sought by way of compensation for a moderate psychiatric injury, is £32,500.

[77]Issue 3 Should there be an award of aggravated damages? On what basis?

[78]For convenience, we repeat Mr Hignett and Ms Smeaton’s helpfully concise summary of the law in this area: “101. In Commissioner of Police of the Metropolis v Shaw

[2012] ICR 464

, EAT, the EAT explained that, although often described as a separate head of loss, aggravated damages should properly be approached as an aspect of injury to feelings awards and should be dealt with as a sub-heading under the same head of loss to avoid over-compensation.102. In Shaw, Underhill P. identified three categories of circumstances which may justify an award of aggravated damages (paragraph 22): 102.1. where the act is done in an exceptionally upsetting way: 102.2. where the employer’s conduct is motivated by prejudice or animosity, or which is spiteful or vindictive or intended to wound. To attract an award on this ground, the claimant has to be aware of the motive in question; 102.3. subsequent conduct: for example, conducting the trial in an unnecessarily oppressive manner, failing to apologise, or failing to treat the complaint with the requisite seriousness.

103. It was made clear in Shaw that where aggravated damages are awarded, the basis for doing so should be made clear and the Tribunal must ultimately consider whether the overall award is proportionate having regard to the totality of injury caused to the Claimant.”

[79]We agree with their further submission that the impact of the discrimination is properly compensated by an award for injury to feelings. Whilst the acts undoubtedly caused the Claimant significant hurt and distress, and indeed exacerbated her anxiety disorder over a period of months, the acts themselves were not done in an exceptionally upsetting way even if Mr Squibb was said by the Tribunal not to have made a positive contribution to the management of the Claimant’s situation in the period 17 September 2019 to 31 January 2020 and to have lost sight of a long serving employee with complex mental health needs.

[80]There were no findings in the Liability Judgement that the Respondent (or any of the principal actors) was motivated by prejudice or animosity. There can be no criticism of how the Respondent has conducted these proceedings, on the contrary as we have made clear already, the Respondent and its legal representatives have been particularly sensitive to the Claimant’s situation and vulnerability.

[81]Mr Hignett took the Claimant to a letter dated 6 April 2023 she had received from Teresa Church in response to her four grievances and two emails in which she had raised concerns. The letter runs to 11 pages and sets out Ms Church’s detailed findings and conclusions, including the following comments: “I am sorry that there was insufficient consideration of this in the management of your case from September ember 2019, starting with a progression to a final formal meeting on 14th October 2019, which should have prompted adjustments to the letter and usual processes to reflect your circumstances, rather than adopting a one size fits all approach.” “The Trust itself therefore needs to accept responsibility for the management failings in your case, so that lessons can be learned not only by the specific individuals involved, but by the entire organisation.” “The Trust notes the findings of the Tribunal Judgment and we aim to learn from them.” “It is recognised that not all of the reasonable adjustments that should have been put in place for you were, as set out by the Tribunal in its findings. You also felt that you had to put your case forward to establish that you were protected under the Equality Act, rather than your manager identifying this for you. This is not acceptable and as part of the learning from this case, and others, EEAST now runs Equality, Diversity and Inclusion training sessions which are mandatory for anyone in a B8a role or above.” “Having reviewed all the documentation in respect of how your sickness absence was supported, I can see that there have been many attempts to support you in a return to the workplace, however, they appear to have been poorly defined and to have failed due to you being too unwell, miscommunication, mistrust, incomplete advice and support from your managers and OH and COVID19. These barriers to your return have then resulted in you feeling unsupported in your return, and inconsistency with the introduction of new people at different stages of your sickness absence. This has then all left you feeling excluded from the workplace and for this I apologise on behalf of the Trust.” “As I have set out above, the learnings from this case were discussed with Luke Squibb upon his return from secondment, and consideration has been taken with regards to these learnings, however, these are confidential between Luke and his managers and as such I am unable to disclose anything further to you. However, on behalf of the Trust I would like to acknowledge and apologise to you for any upset caused by the statement made in this letter of 23 December 2019. The Trust also apologises for what the Tribunal found was a subsequent failure to respond to you when you asked Luke Squibb to substantiate his comments in this letter.” “I recognise that you feel the Trust have failed in their duty to protect you, and I realise that multiple people have been involved in your case, some of these have not understood the detail and others were not informed enough on the complexity of your case. However, it is also evident to me that people have not intentionally misled you. You had built a relationship where you felt safe with Ivan Roberts and you have had some positive experiences with other people in the Trust. I hope that this letter provides some reassurance with regards to the work that we are doing as a Trust and that we are committed to change, I personally, believe that the Trust is in a very different place to where it was when you first went off sick. Whilst I recognise that there is still more to do I do hope these reassurances will give you confidence that we are invested in you as an individual and want to solve these outstanding issues so that we can work with you to achieve a positive outcome for the future. Sarah Rothwell and I would be very happy to meet with you if you feel this is appropriate. I understand that you have indicated to Occupational Health that you would like to know the responses to your grievances in a meeting. I have set out my findings in full in this letter, but I would be very happy to attend a meeting with you to talk them through if that would be helpful. This could also be an opportunity to share our learning and what the Trust has done in response to this but hopefully this letter will give you a better understanding in respect of your concerns.”

[82]Ms Church’s letter is a commendably frank and open response to the Claimant’s concerns. There is no attempt to shy away from the Tribunal’s findings and conclusions, rather the letter evidences a genuine intention on the part of the Respondent to learn from what happened. Above all, Ms Church’s letter acknowledges that the Claimant was impacted by the Trust’s various failings and offers her an unqualified apology. We can see no basis for making an award of aggravated damages. Issue 5 Should there be an award for loss of congenial employment

[83]Mr Hignett and Ms Smeaton submit that distinct awards for loss of congenial employment are unusual and that Harveys references only one, unreported, Employment Tribunal case (Macken v BNP Paribas London Branch case no. 2208142/2017, 2205586/2018 and 2201492/2019 (4 October 2021). They go on to highlight that although the Claimant refers in her remedy witness statement to having loved being out on the frontline delivering emergency care, a job she says she thought she would do for the rest of her life, the reason she was no longer working as a paramedic but as an Emergency Medical Technician when she retired was because of her lymphoedema risk. We agree with them that this is not a case in which it is appropriate to make an award for loss of congenial employment, let alone in the sum of £15,000 as suggested by the Claimant. We have already reflected the Respondent’s failure to support the Claimant’s return to work to do a job that she loved and which took her mind away from the considerable difficulties she faced in her personal and home/family life, by making an award for injury to feelings in the upper Vento band. In any event, even had the Claimant persuaded us that an award for loss of congenial employment should be considered in her case, the fact that her employment would have terminated in any event regardless of the fact she was discriminated against, means that we would not ultimately have made an award. Issue 6 Should any award of compensation be increased for a failure to comply with the Acas Code of Practice? What failures are relied on?

[84]In our judgement, the Acas Code of Practice on Disciplinary and Grievance Procedures (“the Code”) plainly applied in this case in so far as the Claimant raised three grievances in respect of the matters that we subsequently upheld as complaints of discrimination (it is irrelevant in this regard that the grievances extended to other matters). In which case, the question under s207A of the Trade Union & Labour Relations (Consolidation) Act 1992 is whether the Respondent failed to comply with the Code in relation to the relevant matters complained of and, if so, whether its failure in that regard was unreasonable. Notwithstanding the Respondent’s starting position that there is no basis for applying an uplift to any award of compensation, in the course of his oral submissions, Mr Hignett acknowledged the Tribunal’s findings and observations in paragraphs 86, 88, 97-98, 108, 150, 158, 163-165 and 200 of the Liability Judgment as to how the grievance had been handled. In summary, the Tribunal found that the grievances were significantly mismanaged and that the Respondent’s approach to the 2019 grievance was ill thought through and poorly executed, had cast a long shadow in the case and had undermined essential trust and confidence. We agree with Mr Downey that the Respondent unreasonably delayed in taking the Claimant’s concerns forward. Dealing with issues promptly and not delaying unreasonably are a recurring theme in the Code. We refer in particular to paragraphs 4, 33 and 40 of the Code. Senior managers at the Respondent were of the view that the organisation should push back on the 2019 grievance as they thought it was unlikely to be well founded. That ultimately led Mr Matthias to seek to dissuade the Claimant from exercising her rights so that he could progress the situation in accordance with Mr Squibb’s communicated expectations. We do not consider that Mr Matthias acted in the matter in bad faith: he and others evidently wanted to resolve the situation, albeit they clung optimistically, even naively to the hope that it could be resolved informally and at times were out of their depth. As the Liability Judgement makes clear, the responsibility for any failings ultimately sat with the Respondent’s senior management.

[85]Whilst the February 2020 collective grievance potentially added little to the 2019 grievance, we recognise that both it and the 25 September 2020 grievance, and indeed the outstanding 2019 grievance, played out against the backdrop of the ongoing pandemic. Particularly given the significant pressures that the Respondent faced as a frontline service throughout much of 2020 and into 2021, we make allowance for its ongoing failings over that period. Equally, we also recognise that when the Respondent sought to grasp the proverbial nettle by appointing Ms Wilson in early 2021 to undertake an independent investigation in relation to the Claimant’s various outstanding concerns, they and the Claimant were effectively let down by Ms Wilson’s seeming failure to speak to anyone at the Respondent to secure their account of events or to understand the Respondent’s position. By the time her report was issued in June 2021, these proceedings were afoot and the parties’ focus shifted to the legal dispute.

[86]Ms Church’s comprehensive response to the Claimant’s various grievances may not have been issued until 2023, and only then in the aftermath of the Liability Judgement, but as we have noted already it is a commendably frank and open response to the Claimant’s concerns.

[87]This is not a case in which a respondent failed or, worse, refused to deal with a claimant’s grievances, or dealt with them cynically and in bad faith. Nevertheless, even allowing for the pandemic and the particular difficulties faced by the Respondent, there was inexcusable, avoidable, lengthy delay in the matter. In our judgement, the Respondent’s failure to comply with the Code was unreasonable, essentially for all the reasons set out in the numbered paragraphs of the Liability Judgement referred to by Mr Hignett. Moreover, we do not overlook that the Respondent’s early failure to ‘grip’ the issues in the 2019 grievance preceded the pandemic and was at a time when the Claimant was seeking to return to work following her extended cancer related absence. In all the circumstances, we think it just and equitable to increase the award in this case by 15%. Interest

[88]Pursuant to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996, the Claimant will be entitled to statutory interest at the rate of eight per cent per annum on the sums awarded to her. In the case of the award for injury to feelings (inclusive of the uplift for failure to follow the Code), subject to any submissions the parties wish to make in the matter, we believe that interest will accrue from 26 September 2019, being the date of the first act of discrimination. In the case of loss of remuneration (again, inclusive of uplift), we believe the midpoint will instead be used in order to calculate the number of days over which interest will be calculated.

[89]If the parties are able to agree the amount of the final award the Tribunal will issue a judgment for the agreed amount. The parties are requested to update the Tribunal in this regard within 28 days of the date that this judgement is sent to them. JUDGMENT on RECONSIDERATION

Findings of Fact

[1]It is not necessary in the interests of justice for the Tribunal to reconsider paragraph 1.2 of the Remedy Judgment dated 15 January 2025 sent to the parties on 17 January 2025 (the “Stage 1 Remedy Judgment”).

[2]As regards any week in respect of which the Tribunal assessed that there was a twenty-five percent chance that the Claimant would have increased her hours from eight to sixteen hours per week, the Claimant’s losses for that week are to be calculated on the basis of 6.8 hours’ pay in total.

[3]Had the Claimant not been discriminated against, with effect from 1 November 2021 until 31 January 2024, there was only a thirty per cent chance that the Claimant would have maintained consistent attendance at work of eight hours per week and no chance that the Claimant would have increased her hours from eight to sixteen hours per week.

[1]At an earlier hearing on 9 July 2025, in discussion with Counsel, Employment Judge Tynan listed this hearing before the full Tribunal in order to address questions that have arisen between the parties as to the meaning and effect of the Tribunal’s judgments on liability and remedy, including whether it is necessary in the interests of justice for the Tribunal to reconsider either of its judgments, in particular to provide further findings and conclusions to inform the final remedy in the case, or whether the meaning and effect of the judgements are sufficiently clear that they do not need to be re-visited.

[2]Rule 68 of the Employment Tribunals Procedure Rules 2024 (“the Rules”) empowers a tribunal, either on its own initiative or on the application of a party, to reconsider any judgment where it is necessary in the interests of justice to do so. Any suggestion that a tribunal has made an error of law or that its findings were perverse is generally a matter for appeal – Ebury Partners UK Limited v Acton Davis

[2023] EAT 40

[3]In Outasight VB Limited v Brown

UKEAT/0253/14

, the Employment Appeal Tribunal considered the Tribunal’s equivalent powers under Rule 70 of the Employment Tribunal Rules of Procedure 2013 and observed: “The interests of justice have thus long allowed for a broad discretion, albeit one that must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, insofar as possible, be finality of litigation.”

[4]The first issue that has arisen between the parties concerns the meaning and effect of paragraph 1.2 of the Stage 1 Remedy Judgment, specifically what we intended when we determined that there was a twenty-five percent chance that the Claimant would have increased her hours to sixteen hours per week by 4 March 2020. We meant, not before 4 March 2020 and in using the word by did not intend to suggest that there was some chance of the Claimant increasing her hours to sixteen hours per week prior to 4 March 2020. As Ms Smeaton notes, we were informed in the matter by our conclusion that the Claimant implicitly accepted that she would not have been able to work for sixteen hours per week any sooner than 4 March 2020, though as we set out in paragraphs 45 to 55 of the Stage 1 Remedy Judgement, we also had regard to Dr Halstrom’s views in the matter and to the Claimant’s GP and other medical records in coming to our judgement.

[5]Related to this issue, the parties have been unable to agree whether, as the Claimant asserts, she is entitled to be compensated on the basis of 8.8 hours’ pay for any week in respect of which we assessed that there was a twenty-five percent chance she would have increased her hours from eight hours to sixteen hours per week. The Respondent asserts that the correct figure to be used for calculation purposes is 6.8 hours (it no longer asserts that the figure to be used is 6 hours). We agree with the Respondent’s figure, though arrive at it in a slightly different way, namely that for any week when there was just a sixty percent chance of maintaining consistent attendance at eight hours per week, subject to credit being given for sums actually paid by the Respondent, the Claimant is entitled to 4.8 hours’ pay for any such week. For those weeks when there was a twenty-five percent chance of the Claimant increasing her hours to sixteen in total, her compensation is to be calculated on the basis of 6.8 hours’ pay per week, namely an additional two hours’ pay in respect of the potential extra eight hours of work. The Claimant’s 8.8 hours calculation equates to a twentyfive percent chance of working sixteen hours over and above the basic eight hours, which does not reflect the Stage 1 Remedy Judgment.

[6]We recognise that the Stage 1 Remedy Judgment is not explicit as to how the Claimant’s losses after December 2020 are to be calculated, save in so far as we determined that the Claimant’s employment with the Respondent would have terminated in any event on 31 January 2024. Given that the Stage 1 Remedy Judgment was in a narrative form which addressed various issues identified between the parties, it is a moot point whether the judgment falls to be reconsidered or instead whether we can simply issue a second, supplemental narrative judgment. We believe the correct way to proceed is by way of reconsideration. Having re-read the Stage 1 Remedy Judgment, we are satisfied that this is a case in which, in accordance with the principles laid down in AB v Home Office EAT 0363/13, we failed to determine an issue, namely the “How long for?” question posed by the parties in paragraph 1.4 of the agreed Remedy List of Issues. Specifically, we did not make any determination as to what would or might have happened after 31 December 2020 had the Claimant not been discrimination against. We consider it necessary in the interests of justice to reconsider the Stage 1 Remedy Judgment and, on reconsideration to vary it.

[7]We conclude that with effect from 1 January 2021 the Claimant’s chances of maintaining consistent attendance at work of eight hours per week and of increasing her hours to sixteen hours per week remained unchanged from the period September 2020 to December 2020 at sixty percent and twenty-five percent respectively. However, we refer to our findings at paragraphs 61 to 66 of the Stage 1 Remedy Judgment in which we noted the Claimant’s worsening health situation. At paragraph 64 we said: “… We know from Dr Hallstrom’s substantive report that by May 2021 the Claimant was catastrophising and could not tolerate any small obstacles. This was not as a result of having being discriminated against, since as we set out above, the impact of the discrimination was relatively short lived. Instead, in our judgement, this was because by 2021 the Claimant’s diabetes was having a profound, adverse impact upon her accumulated mental health issues, as well as being a significant comorbidity in terms of her cancer and other physical health issues. She had stopped attending ‘Maggie’s for therapy by 2021. According to Dr Hallstrom, the Claimant’s medical records in August 2021 identify a range of issues, unrelated to work. In October 2021 her diabetes was noted to be poorly controlled.”

[8]Against the background that the Claimant’s diabetes was noted in October 2021 to be poorly controlled and having a profound adverse impact on her mental wellbeing, we conclude that with effect from 1 November 2021 there was only a thirty per cent chance that the Claimant would have maintained consistent attendance at work of eight hours per week and no chance that the Claimant would have increased her hours from eight to sixteen hours per week after that date. Furthermore, having regard to the Claimant's complex underlying health issues, and personal/family circumstances, in our judgement there would have been no improvement (or indeed deterioration) in the Claimant’s prospects/chances in this regard through to 31 January 2024 when, as we have already determined, her employment would have ended in any event.

[9]For the avoidance of doubt, this means that compensation for loss of earnings for the period 1 January 2021 to 31 October 2021 is to be calculated on the basis of 6.8 hours per week and for the period I November 2021 to 31 January 2024 on the basis of 2.4 hours per week, in each case credit to be given for sums actually paid to the Claimant for any such week.

[10]Finally, the Claimant asserts that she was entitled to be paid for 16 hours per week for the period 4 March 2020 to 31 August 2020 when she was on management stand down during the pandemic whilst shielding. Putting aside that this issue was seemingly identified for the first time in the Claimant’s written submissions of 15 October 2025 (which were supposed to have been filed and served by 30 August 2025), the Claimant has overlooked paragraph 202 of the Tribunal’s judgement on liability in which we said: “In our judgement the Claimant was paid the sums properly payable to her under her contract throughout her period of shielding by reference to the adjusted working arrangements in place throughout.” It is not necessary in the interests of justice that the Claimant should be afforded a ‘second bite of the cherry’ on this issue in circumstances where she was represented by experienced Counsel at the liability hearing and there is no suggestion of any procedural mishap. We decline to reconsider our judgment in the matter.

[11]The parties are requested to update the Tribunal once the final remedy amount has been agreed between them and to advise the Tribunal if they require it to be recorded in a formal judgment. Approved by: